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Les cartes, planches, tableaux, etc., peuvent Stre film6s d des taux de reduction diffdrents. Lorsque le document est trop grand pour §tre reproduit en un seul clich6, il est film6 d partir de i'angle supdrieur gauche, de gauche d droite. et de haut en bas. en prenant le nombre d'images ndcessaire. Les diagrammes suivants lllustrent la mdthode. D 32 X 1 THE BILLS OF SALE AND CHATTEL MORTGAGE ACTS or 0NTAKIO, AND OF THE MORTGAGES AND SALES OF PERSONA T PROPERTY AMENDMENT ACT 1880, (43 Vict:, Chnptcr 15, Out.) PRECEDED BY AN INTRODUCTORY TREATISE OxN THE LAW OF TITT T Q OF SALE AND CHATTEL MORi^^A^ES, AND HAVING APPENDED CHAPTERS 66 nc r.« am„ . o STATUTES OF ONTARIO, AND THE ACTio^VICTORIA CHAP If, ''"^''='' SO FAR AS THE SAME AFFECT THeVaw OF ^.L, OF SALE " " AND CHATTEL MORTGAGES IN ONTARIO, TOGETHER ALSO WITH A CAREFULLY PREPAPED AND USEFUL APPENDIX OF FORMS. JOHN A. BAKRON OF OSGOODE MALI,, BARRISTER-AT-LAW. ' Expertia disccs, quam gravis istc labor. TORONTO: CARSVVELL & CO., LAW PUBLISHERS 25 AND 28 ADELAIDE STREET EAST. ' 1880. r o..r Lord .f,to, by Ca«swell & Co , in ,hc olfioo of tho Minister of Agriculture Primed by Hunter, Roie & Co., Toronto. i^ TO THE HONOURABLE SAMUEL HUME BLAXE, ONB OF THK VICS-CHANCELL0B8 OF THE COURT OP CHAMCBBI FOR THE lie ypnr ot liciilinrc. PROVINCE OF ONTARIO, is ^ohm IB, WITH HIS PERMISSION, MOST RESPECTFULLY DEDICATED. PREFACE. fhi V t ?w " '\' P'°^'^"°"' ^^" ^^^^« been anticipating this book, that an explanation should be made of the delav in i^s pubhcation. When far advanced, towards completion' t w^s deemed advisable, in expectation of further legislation in the Law of Mortgages and Sales of Personal Property, to stop all further progress in the work, until it was ascertain d with some reliability, what changes were likely to be effected Con sequent upon the amendment to the law, made by "Tit Moit gages and Sales of Personal Property Amendment Act," 18 J a period of nearly two months was necessarily lost, between the stoppage and the continuation of the work in the iZT f O^ePublishors ThisAct,inthep.ssageofS^^^^^^^ House of Assembly, was spoken of and discussed as "An A intended to remove doubts known to exist in the law of Bmf of ^e and Chattel Mortgages, under Revd. Stat. Ont., Chap 9 » Indeed, the necessity for such a removal would Lve been a fitting preamble to the Act itself, for, among other matters the new statute sets at rest a moot question, under certl c remt stances, as to the place of registration of instruments within tie operation of the Statutes relating to Bills of Sale and C^t Mortgages (post p. 174, 195); and practically it disposes o any further argument as to the correctness, on the one hand o the judgments of the Court of Common Ple'is in O'W" ,77 on (12JJ r C V irA\ ■ o ,^^^^^'^^^^^^'i^(uranv. Sills 111 J, ; . ^' '" ^"""^^'^ ^- Garruthers (9 U. C L J 1581 and ,n Reynolds v. Williamson (25 U. C C P 49 and on f J Sloan V. MaugKan, (3 App. R. 222) ^post p. 194). PossiWy there tilt ▼111 PREFACE. yet is room for much amendment ; but, as each new amend- ment creates fresh subject matter for doubting and questioning, perliaps it would be wiser, in many instances, to be conserva- tive in legislation, and rely more upon the Courts in cases of doubt, for a definite and final construction of existing Statutes, when that construction is in keeping with the spirit and policy of the law. UntU the 30th of May, 1849, there was no Statute in force in Upper Canada requiring registration of Mortgages of Per- sonal Property. On that day, the Statute, 12 Victoria, Chap. 74, became law. This Statute is the foundation of the subsequent Acts relating to Mortgages of Goods and Chattels. Though long since repealed, the Statute law, in many instances, is the same now, as then. For this reason, it would be convenient, and of Msistance to the enquirer, that an epitome of the provisions of the Statute, 12 Victoria, Chap. 74, should here be given. In many instances, authorities (and there are many such) decided under this Statute will, where not overruled, necessarily be authorities under the Statute law, as at present existing. By a comparison of the Statutes, the enquirer can then conveniently satisfy himself of the adaptability of his references. This Statute enacted : Mortgages of personals in Upper Cana- da made after the pa.s8ing of this Act, to be void unless filed as here- in directed. Section I. > ' That every Mortgage or conveyance intended " to operate as a Mortgage of Goods and Chattels made after " the passing of this Act, in Upper Canada, which shall not " be accompanied by an immediate delivery, and be followed " by an actual and continued change of possession of the "things mortgaged, shall be absolutely void as against the " creditors of the mortgagor, and as against subsequent pur- " chasers and mortgagees in good faith, unless the Mortgage " or conveyance or a true copy thereof, together with an affi- " davit of a witness thereto, sworn before a Commissioner of the " Queen's Bench, of the duo execution of the Mortgage or " conveyance, or of the due execution of the Mortgage or " conveyance of which the copy to be filed purports to be a " copy, shall be filed as directed in the succeeding section of "this Act." .;# h new amend - id qnestioning, be conserva- irts in cases of sting Statutes, irit and policy tatute in force ;gages of Per- oria, Chap. 74, he subsequent . Though long IS, is tlie same enient, and of s provisions of be given. In such) decided necessarily be listing. By a 1 conveniently es. eyance intended ttols made after which shall not and be followed asession uf the 1 as against the lubsequent pur- 58 the Mortgage lier with an affi- missionerof the he Mortgage or le Mortgage or lurports to be a eding section of PREFACE. Sbotioh II. "That the instruments mentioned in the " preceding section shall be tiled in tlie office of the Clerk of " the District Court of the District where the mortgagor " therein, if a resident in Upper Canada, shall reside at the " time of the execution thereof, and if not a resident, then in ' the office of the Clerk of the District Court of the District ' where the property so mortgaged shall be at the time of ' the execution of such instrument : And such Clerks are ' hereby required to file all such instruments as aforesaid, ' presented to them respectively for that purpose, and to en- ' dorse thereon the time of receiving the same, and shall de- ' posit the same in their respective offices to be kept there ' for the inspection of all persons interested." Section III. " That every Mortgage or copy thereof filed m pursuance of this Act, slmll cease to be valid as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of the said term of one year, a trtie copy of such Mortgage, together with a statement exhibiting the interest of the mortgagee in the property thereby claimed by virtue thereof, shall be again filed in the office of the Clerk of the said District Court." IX Such Mort- Rages to be nled in otiic» of Clerk of DiHtrict Court, and open for inspection. Copy of Mortgage to be tiled again one year after first filing. Copies of Mortgages filed with certificate of Clerk to be evidence of such filing. ^^ Section IV. " That a copy of any such original instru- 'I ment, or of any copy thereof, so filed as aforesaid, including l^any statement made in pursuance of this Act, certified by '■• the Clerk in whose office the same shall be filed, shall be " received in evidence, but only of the fact that such instru- " ment, or copy and statement, was re . , .;d and filed accord- "ing to the endorsement of the Ck k thereon, and of no ^1 other fact; and in all cases the original endorsement by ^^ the Clerk, made in pursuance of this Act upon such instru- ment or copy, shall be received in evidence only of the facts stated in such endorsement." Section V. "That the Clerks of the Courts aforesaid Clerks of the shall respectively number every such instrument or copy ^''^d Courts to ;; whieh shall be filed in their offices, and shall enter in books "tZ^n^"' to be provided by them, alphabetically, the names of all the SllS PREFACE. •'parties to such instruments, with the number endorsed •* thereon opposite to each name, which entry shall be re- "peated alphabetically under the nan.e of evu.y party "thereto." i V Y Thin Act not t'l apply to M()rtca(,'eH of VeBsels regiBterod nnder 8 Vic. cap, 5, Fees allowed to Clerks for 'fgisterin),' •MortgagcH. ^^ Section VI. " That this Act shall nol, apply to Mortgages "of Vessels registered under the provisions of an Act passed " in the eighth year of Flor Majesty's Uoign, and intituled ^" An Act to secure the right of jwopcrty in IJritUh Plantation " Vessels mivigatiwj the inland waters of this Proline, and not ^'' registered under the Act of the Imperial Parliament of the " United Kingdom passed in the third and fourth gears of the yieign of His late Majestg Kin,j William the Fourth, in- '•^ tituled An Act for the registering of British Vesiels, and to 'yacilHate transfers of the same, and to prevent the fraudulent " assignment of any property in awc/i Vessels." SE.moN VII. "That for services under this Act, the ♦'Clerks aforesaid shall bo entitled to receive the following " fees : for filing each instrument and affidavit, and entering "the same in a book as aforesaid, one shilling and three '' pence ; for searching each paper, six pence ; and for copies " of any documents filed under this Act, six pence for every "hundred words." From a perusal of the foregoing provi.sions, it will at once be observed, that tlie Statute did not extend to tlie case of a sale ot goods and chattels, nor did the Statute require that which now IS such an important essential in every registered Chattel Mortgage or Bill of Sale, nam.ly, the affidavit of bona Jules. Consequently wo find, in the next session of the same Parliament, that an Act— 13 & 14 Victoria Chap. 62— was passed. This Statute altered and amended the Statute 12 Victoria Chap. 74, by adding to the end of the first section of the latter Act, the following : ^^ " And that every sale of goods and chattels, which shall " not be accompanied by an immediate delivery and followed "by an actual and continued "change of possession of the " goods and chattels sold, shall be in writing, and such nimber ondorRed Eintry shall be re- of every party ply to Mortgages of au Act paflBod ;n, and intituled 'rilijih Plantation Province, and nut utiiamcnt of the nrth years of the the Fourth, in- h Vestela, and io it the fraudulent r this Act, the 'o the following it, and entering illing and three ; and for copies pence for every will at once the case of a require that, ly registered avit of bona of the same ap. 62— was Statute 12 'st section of Is, which shall r and followed session of the ing, and such PREFACE. ^•^ •' writing shall be a conveyance under the provisions of the " said Act ; and that the Mortgages and conveyances men- " tioned in the said Act, and the writing or cnveyanco I' mentioned in this Act, shall be accompanied with an a«i- " davit of the mortgagee or bargainoo of such goods, sworn I before a CommiHsioner of the Queen's Bench or Common • Pleas, to the effect,-in the case of a Mortgage, that the • mortgagor therein named is justly and truly indebted to the mortgagee in the sum mentioned in the said Mortgage, ' that It was executed in good faith, and for the express pur- pose of securing the payment of the money so justly due ; and not for the purpose of protecting the goods and •chattels mentioned therein against the creditors of the m.,rtgagor,-and in case of an absolute sale, that the sale 18 bona fide and for good consideration (setting it forth) and not for the purpose of holding or enabling the bargainee to hold the goods mentioned therein against the creditors of the bargainor; otherwise such Mortgage or sale shall be absolutely void as against the creditors of the mortgagor and as against the subsetjuent purchasers and mortgagees in good faith. " Sales of personal property (when not accompanied by an immediate delivery and followed by an actual an.l continued change of possession), were thus put upon the same footing Tfi U TnTlZ""^^^'^f registration (Harris v. Com. Bank, of t. ^"m t ^' ^"'^ '^' '^^^"^'^ «f bo^iajides, in the case of either a Mortgage or conveyance, was by this amendment first made necessary. The requisites in this affidavit, were the Ze ttrnSl -i' "' T' '"''P* '^'''- ^" '^'' ^-« "f - Mort- gage, the affidavit must now state, in addition to what then purpose of preventmg the creditors of the mortgagor from ob- rvTvaS"'; /"^ '^^'" 'Against him; andtnlhecaseof a conveyance the affidavit may now refer to the deed for the con- sideration, instead of setting it forth (per Burns T H Com. Bank, 10 U. C. Q. B. 448). ^ ' ' "^ '^• Under these Statutes, the question never wa.s raised, as to Xll PREFACE. whether or not a copy of an instrument of sale, instead of the original, could be registered. Very probably the registration of a copy would have been allowed, because the Statute " 13 and 14 Victoria, Chap. 62," provided that what was therein en- acted should be added to the first section of the Statute " 12 Victoria, Chap. 74," and thus, by forming part thereof, have secured the application of the law to both Sales and Mortgages. But those Statutes were both repealed, and the subsequent Acts all clearly draw a distinction between Mortgages and Sales and it is the received opinion now that the registration of a copy of an instrument of sale, is not a compliance with the law {Harris v. Com. Bank, 10 U. C. Q, B. 437). These Statutes, It will further be observed, did not provide for the affidavit of bona fides being made by an agent of a mortgagee or bargainee. Tlie Statute, 13 and 14 Victoria, Chap. G2, imperatively required that the mortgagee himself should make this affidavit. It was, therefore, decided in Holmes v. Vancamp (10 U. C. Q. B. all)' that this affidavit could not be made by an agent of the mort- gagee. It was in consequence of this decision, no doubt that when the Statute, " 20 Victoria, Chap. 3," became law (1st of August, 1857), provision was therein made, whereby this affi- davit could be made by the agent of a mortgagee or bargainee. This Statute it was too, which first made necessary the refiling of a Mortgage to be accompanied by an affidavit of the mort° gagee (2)ost p. 197). A year or two later the provisions of the Statute, " 20 Victoria, Cliap. 3." were all incorporated and con- solidated in the Consolidated Statutes of Upper Canada By far the greater number of authorities, bearing upon Chattel Mortgages and Bills of Sale, have been decided under the Con- solidated Statutes of Upper Canada, Chap. 45. For this reason the provisions of this latter Statute are here given, thus facil- itat...g a comparison with the provisions of Eevd. Stat. Ont., Chap. 119. The practitioner can thus conveniently ascertain the application of his authorities. The Consolidated Statutes of Upper Canada, chap. 45 en- act as follows :— 4. e, instead of the the registration he Statute "13 was therein en- he Statute " 12 t thereof, have 1 and Mortgages, the subsequent gages and Sales jgistratiou of a iance with the These Statutes, the affidavit of ee or bargainee, itively required fidavit. It was, J.C.q. B. 511), it of the niort- no doubt, that, aie law (1st of ereby this affi- le or bargainee, ary the refiling it of the inort- ovisions of the I'ated and con- " Canada. By upon Chattel aider the Con- i'or this reason ven, thus facil- i^d. Stat. Ont., intly ascertain , ehap. 45, en- PREFACE. 1. " Every Mortgage, or conveyance, intended to operate •' as a Mortgage, of goods and chattels made in Upper Cana- " da, which is not accompanied by an immediate delivery, "and an actual and continued change of possession of the " things mortgaged, or a true copy thereof, shall, within five " days from the execution thereof, be registered as herein- " after provided, together with the affidavit of a witness " thereto, of the due execution of snch Mortgage, orconvey- " ance, or of the due execution of the Mortgage, or convey- " ance, of which the copy filed purports to be a copy, and also " with the affidavit of the mortgagee or his agent, if such " agent be aware of all the circumstances connected therewith " and properly authorized in writing, to ta' .ch Mortgage " (in which case a copy of such authority sliail be re-ristered " therewith). 20 V. c. 3, s. 1." 2. " Such last mentioned affidavit, whether of the mort- " gagee or liis agent, shall state that the mortgagor therein " named is justly and truly indebted to the mortgagee in the 1^' sum mentioned in the Mortgage, that it was executed in '' good faith and for the express purpose of securing the pay- " ment of money justly due, or accruing due, and not for the II purpose of protecting the goods and chattels mentioned "therein against the creditors of the mortgagor, or of pre- " venting the creditors of such mortgagor from obtaining j.ay- " ment of any claim against him." 3. "In case such Mortgage, or conveyance, and affidavits " be not registered as hereinbefore provided, the Mortga-e or "conveyance, shall bo absolutely null and void as against " creditors of the mortgagor, and against subsequent pur- " chasers or mortgagees in good faith for valuable considera- "tion. 20 V. c. 3, s. ]." Xiii Mortgages of goods not at- tended with change of pos- session, shall be registered, or else be void as against creditorsi.&c., of the mort- giigor with an aiHdavit, Ac. Contents of affidavit. Unless regis- tered, mort- gage void. 4. " Every sale of goods and chattels, not accompanied by ^^ an immediate delivery and followed by an actual and c„n- tuiued change of possession of the goods and chattels sold, ^ shall be m writing, and such writing shall be a conveyance ^^ under the provisions of this Act, and shall be accompanied byanaflidflvitof a witness thereto of the due execution thereof, and an affidavit of the bargainee, or his agent duly Salee of goods not attended with delivery shall be regis- tered, or else be void as against credi- tors, &.O., of the Vendor. X17 Mortgages of goods to secure ad- Tances on, or to indemnify indorser, &c. , to be valid, if duly regis- tered. PREFACE. authorized in writing to take such conreyanoe (a copy of whicli authority shall be attached to such conveyance), that the sale is bona fide and for good consideration, as set forth in the said conveyance, and not for the purpose of holding or enabling the bargainee to hold the goods mentioned therein against the creditors of the bargainor, and such conveyance " and affidavits shall be registered, as hereinafter provided, ".within five days from the executing thereof, otherwise the' " sale shall be absolutely void as against the creditors of the " bargainor and as against subsequent purchasers or mort- " gagees in good faith. 20 V. c. 3, s. 2." 5. " In case of an agreement in writing for future advances, ' for the purpose of enabling the borrower to enter into and' ' carry on business with such advances, the time of repay- ' ment thereof not beiag longer than one year from the ' making of the agreement, and in case of a Mortgage of ' goods and chattels for securing the mortgagee, repayment ' of such advances, or in case of a Mortgage of goods and ' chattels for securing the mortgagee against the indorsement ' of any bills or promissory notes, or any other liability by ' him incurred for the mortgagor, not extending for a longer ' period than one year from the date of such Mortgage, and ' in case the Mortgage is executed in good faith, and sets ' forth fully, by recital or otherwise, the terms, nature and effect of the agreement, and the amount of liability intended to be created, and in case such Mortgage is accompanied by the affidavit of a witness thereto of the due execution thereof, and by the affidavit of the mortgagee, or in case the agreement has been entered into and the Mortgage taken by an agent duly authorized in writing to make such agreement and to take such Mortgage, and if the agent is aware of the circumstances connected therewith, then, if accompanied by the affidavit of such agent, such affidavit, whether of the mortgagee or his agent, stating that the Mortgage truly sets .forth the agreement entered into be- tween the parties Hereto, and truly states the extent of the liability intended to be created by such agreement and covered by such Mortgage, and that such Mortgage is exe- cuted in good faith and for the express purpose of securing 'w nveyance (a copy of ih conveyance), that eration, aa set forth urpoae of holding op s mentioned tlierein id such conveyance ireinafter provided, reof, otherwise the ;he creditors of the urchaaers or mort- or future advances, T to enter into and the time of repay- jne year from the of a Mortgage of tgagee, repayment gage of goods and at the indorsyement y other liability by mding for a longer iich Mortgage, and od faith, and sets terms, nature and I liability intended is accompanied by 'le due execution igagee, or in case nd the Mortgage ting to make such nd if the agent is herewith, then, if !nt, auch affidavit, , atating that the t entered into be- .tes the extent of 3h agreement and Mortgage la oxe- irpose of securing XV •1 i PREFACE. " the mortgagee repayment of his advances or against the pay- " ment of the amount of his liability for the mortgagor, aa " the case may be, and not for the purpose of securing the " goods and chattels mentioned therein against the creditors " of the mortgagor, nor to prevent such creditors from recov- « ering any claims which they may have against such mort- " gagor, and in case such Mortgage is registered aa hereinafter " provided, the same shall be as valid and binding aa Mort- " gages mentioned in the preceding section of this Act 20 " V. c. 3, a. 3." 6. "All the inatrumenta mentioned in this Act, whether for Th " the sale or Mortgage of goods and chattela, ahall contain *" b?we'lT'"'^ " such aufficient and full description thereof, that the same •^**""'*''- " may bo thereby readily and easily known and distineuished "20 V. c.3,s. 4." HOW REGISTERED. 7. "The inatrumenta mentioned in the preceding aectiona ahall be registered in the office of the Clerk of the County Court of the county or union of counties where the mort- gagor or bargainor, if a resident in Upper Canada, resides at the time of the execution thereof, f..nd if he be not a re- sident, then in the office of the Clerk of the Cou,ity Court of the county or union of counties, where the property so mortgaged or sold is at the time of the execution of such instrument ; and such clerks ahall file all such inatrumenta preaented to them reapectively for that purpose, and siiall endorse thereon the time of receiving the same in their re- ' spective offices, and the same shall be kept there for the ' inspection of all persons interested therein, or intending or ' desiring to acquire any interest in all or any portion of the ' property covered thereby. 20 V. c. 3 s. 5." 8. " The said clerks, 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 auch instruments, with the num- bers endoraed thereon oppoaite to each name, and such en- try shall be repeated alphabetically under the name of every party thereto. 20 V. c. 3, s. 6." Chattel mort- gages to be legirttered in ofiice of County clerk. \Vho shall enter the same. ■I XVI How to pro- ceed if gooda mortgaged are removed to another county. PREFACE. 9. " In the event of tlie permanent removal of goods and " chattels mortgaged as aforesaid from the county or union of " counties in which they were at the time of the execution of " the mortgage, to another county or union of counties, be- " fore the payment and discharge of the Mortgage, a certified " copy of such Mortgage, under the hand of the Clerk of the " County Court in whose office it was first registered, and " under the seal of the said Court, and of the affidavits and " documents and instruments relating thereto filed in such "office, shall be filed with the Clerk of the County Court of " the county or union of counties to which such goods and "chattels are removed, within two months from such re- "nioval, otherwise the said goods and chattels shall be liable " to seizure and sale under execution, and, in such case, the " Mortgage shall be null and void as against subsequent " purchasers and mortg.igees for valuable consideration, as if " never executed. 20 V. c. 3, s. 7." KEust „ ^^- '.' ^''^'■y *l°''tg'*go. or copy thereof, filed in pursuance be period!- " of this Act, shall cease to be valid as against the creditors cally renewed (< „r 41 , • ., . e!se cease to °* "'® persons making the same, and against subsequent be valid. "purchasers or mortgagees in good faith for valuable con- " side!ation, after the expiration of one year from the filin" " thereof, unless within thirty days next preceding the ex° " piration of the said term of one year, a true copy of such " Mortgage, together with a statement exhibiting the interest " of the mortgagee in the property claimed by virtue thereof, " and a full statement of the amount still due for principal " and interest thereon, and of all payments made on account " thereof, be again filed in the office of the Clerk of the said " County Court of the county or union of counties wherein " such goods and chattels may be then situate, with an afflda- " vit of the mortgagee or his agent, duly authorized in writ- " ing for that purpose (which authority shall be filed there- " with), stating that such statements are true, and that the "said Mortgage has not beeti kept on foot for any fraudulent " purpose. 20 V. c. 3, s. 8." 11. " A copy of such original instrument, or of a copy The clerk's certificate to ,, ,, r c j , . , . ' " be evidence of tnereot, 80 tiled as aforesaid, including anv statement made registration. ■# xvu removal of goods and ihe county or union of ne of the execution of anion of counties, be- I Mortgage, a certified id of the Clerk of the first registered, and of the aflSdavits and thereto filed in such the County Court of iiicli such goods and lonths from such re- lattels shall be liable nd, in such case, the against subsequent 3 consideration, as if f, filed in pursuance igainst the creditors against subsequent h for valuable con- year from the filing t preceding the ox- a true copy of such hibiting the interest d by virtue thereof, II due for principal ts made on account le Clerk of the said i counties wherein late, with an afiida- authorized in writ- hall be filed there- true, and that the for any fraudulent ent, or of a copy ny statement made PREFACK. "in pursuance of thte Act, certified by the clerk in whose ^^ office the same has been filed, under the seal of the Court ^^ shaU be received in evidence in all Courts, but only of the fact that such mstrument, or copy and statement were re- ceived and filed according to the endorsement of the clerk thereon, and of no other fact ; and in all cases the original ^ endorsement by the clerk, made in pursuance of this Act upon any such instrument or copy, shall be received in evidence only of the fact stated in such endorsement. 20 V. c. 3, s. 0." 12. "All aflidavits and affirmations required bv th,-« am ;; shall be taken and administered by an^ J^' l^'ctl^nltt. missioner of the Courts of Queen's Bench or Common Pleas fe^^''"* """^ ; or Justice of the Peace in Upper Canada, and the sum"; twenty cents shall be paid for each and every oath thus ad- ministered. 20 V. c. 3, s. 13. » 13. " On any writ, preceptor warrant of execution against t) • ^^ goods and chattels, the sherifl" or other officer to whom such "f moSor writ, warrant or precept is directed, may seize and sell the of reS"iL^„ interest or equity of redemption in any goods and chattels -'-^We fn""* of the party against whom such writ has issued, and such "'"'''""""• ^" sale shall be held to convey whatever interest the mort-a- gor had m such goods and chattels at the time of seizure "20 V. 0. 3, s. 11." « I*' ''1°';''''"'' ""'J^'- ^^''' Act the clerks aforesaid shall Fee, for be entitled to receive the following fees : serviced ^ (1.) " For filing each instrument and affidavit, and for en- tering the same in a book as aforesaid, twenty-five cents ; (2.) " For searching each paper ten cents ; and (3.) '' For copies of any document with certificate pre- pared, Wed under this Act, ten cents for every hundred "words. 20 V. c. 3, 8. 12." ^^ pstered under the provisions of any Act in that behalf. 20 ^PP'^^ '° -«"• V, c. J, g. 10,— see 8 V. c. 5 " b sela duly- registered. II! XVlll PREFACE. righte^lved. ^^' " ^" "^oHg&gea and sales of goods and chattels regis- " tered under the provisions of any former Acta in that be- " half, shall be held and taken to bo as valid and binding as if the said Acts had not been repealed. 20 V. c. 3 s. 14. " It was but a short time after the foregoing Statute came into force, when a new gi-ound of dispute arose. An examination of its provisions will discover no enactment as to the period of time from whence a Mortgage or conveyance, registered under tlic Act, should take effect. Owing to the absence of any such provision, a direct conflict of judgment arose between the Courts of Queen's Bench and Common Pleas, the former sup- porting, the latter opposing the view that when registered within the proper period, the Mortgage or conveyancer-elated back, and took effect from the time of its execution {Feehan v. Bank of Toronto, 10 U. C. C. P. 32 ; Shaiv v. Gault 10 U C C P. 236 ; Haight v. Mclnnis, 11 U. C. C. P. 518 ; Feehan v. Banh of Toronto, 19 U. C. Q. B. 474). It was this contrariety of opinion, no doubt, which resulted in the passing of the Statute " 20 Vic. cap. 4G." This Statute amended the Con. Stat, of U. C. Cap. 45 by adding to the end of section one the followino- : "And every such Mortgage or conveyance shall operate " and take effect upon, from and after the day and time of " the execution thereof." This provib.on now forms a section by itself in Rev. Stat. Ont., cap. 119 (see post p. 14G). The next amending Statute on the subject of Mortgages and Sales of Personal Property was the Statute " 32 Vic. Cap. 49," Ont., which, however, merely gave greater facilities for the registration of Chattel Mortgages and conveyances, when made or executed, or which affected personal property Avithin the District of Muskoka, and then was passed the Statute " 40 Vic. cap. 8," sec. 29. This latter amendment was induced by the juilgment of the Court of Queen's Bench in Morrow v. Rourke, (39 U. C. Q, B. 500). The argument in this case was that the Legislature intended to use the words " in good faith," in sec- ■•3f! PREFACE. is and chattels regis- •mer Acts in that be- valid and binding as 20 V. 0.3, s. 14." Statute came into An examination IS to the period of , registered under iscnee of any such rose between the s, the former sup- ' when registered )nveyance related icution (Fechan v. Gault, 10 U. C. C. i ; Feehan v. Bank lis contrariety of ing of the Statute e Con. Stat, of U. mo the followincf : iyance shall operate ;he day and time of iself in Rev. Stat. of Mortgages and ;e " 32 Vic. Cap. r facilities for the mces, when made perty within the ! Statute " 40 Vic. ; induced by the 'orrow V. Rourkp, case was that the od faith," in sec- XIX tion nine (9) of Con. Stat. U. C. Cap. 45 after the words pur- chasers and mortgagees, just as these words were to be found in sections three and four of this Statute : that the omission of them in section nine (9) wa.s accidental, and reading all the sections together, the Court ought to supply the omLssion. The Court, however, declined to incorporate these words " in o-ood faith " into section nine (J)), and said, " Looking at the Act as Judges, we have no more power to insert the words ' in good faith ' in section nine than we have to strike them out of*sec- tions three and four. Such a change would be so violent as to amount to framing a new section instead of interpreting what we find (also per Williams, J., in Green v. Wood, 7 Q. B. 179) When we notice the language of Harrison, C.J.,' in Morrow v iU«ir/:e, wherein he says: "It is much safer for the Court to" read the section as it finds it, leaving to the Legislature to amend tlie section, if the reading be not that which the Legis- lature intended," and then observe that the Legislature at once amended the Statute so as to operate against the construction put upon it by the Court, it then becomes evident that the Court did not give that reading to the section which it was in- tended by the Legislature it should have. The last amending Statute, prior to the Revised Statutes of of Ontario, Cap. 119, wiis the Statute 40 Vic. Cap. 21. The provisions of this statute, as well as of 40 Vic. Cap. 8, sec. 29 are re-enacted in the Rev. Statutes of Ont. Chap. 119, so need not therefore here be given. q In issuing this book, I ask the indulgent criticism of my pro- I fessional orethren. Since reperusing its pages I can see in re- .^ peated instances wherein my text could have been improved ,| and my references perfected. I have avoided givin<. niy own I cyimon, and confined myself^ as much as possible, to inciting ^ the opinions of others. The limited library at my command h^ XX PREFACE. necessarily interfered with the extent of the work', though, at most, the Statutes are not such as admit of a very extensive annotation. The Imperial Statutes (17 & 18 Vic. Cap. 36, and 41 and 42 Vic. Chap. 31), differing so materially from our own, prevent the application to our law of many of the English au- thorities ; but I have given such of the American authorities as I believed would be found useful. I indulge the hope, amounting to confidence, that my efforts will prove of service, since that able jurist, the Honoural)lo Vice-Chancellor Blake, with characteristic kindness, found time, amid his many calls of duty, to glance through the greater part of the proof. For the condescension, kind advice, and friendly counsel of such a person I am very grateful. I am indebted to Alfred Passmore Poussettc, Esq., of Peter- borough, for the completeness of the index of subjects ; and 1 here thank him for his kind and efficient assistance. If I am to be so happy as to find the work esteemed worthy of a place on the library shelves of the profession, I shall have received my reward. JOHN A. B. Lindsay, June, 1880. rork-; though, at I very extensive /^ic. Cap. 36, and y from our own, the Englisli au- in authorities as TABLE OF C0:N-TENTS. , that my efforts the Honourable nesa, found time, the greater part ice, and friendly ), Esq., of Peter- subjects ; and I ;anee. stccmed worthy on, I shall have JOHN A. B. An Dedication '*•■• Preface ^ Table of Abbreviations ^ | ^ Table of Cases cited "' X jix Intboductios Revised SUtutes of Ontario-Chapter 119, Sec. 1 ^^ ^° f 'o " 2.."::::::;::;::::;:::::;; m ^^ ^'^ do '• 3 „s ^° "J" do " 4 ■ ^° do do " 5 151 ^^ do do '■ 6 160 ^^ do do " 7 lyi ^° do do " 8 177 li f ^'^ " 9 ;:.:.".■ m ^" f •'° " 10 184 ^; ^" ^» " 11 199 ^" do do " 12 „, ^» do do .. 13 :: z Do do do .. 14 ^ n- , , " 206 r* do do «. 16 2^.. Do do do « 16 ^ Do do do .. n ^ Do do do «• 18 ^" IV, , ™ " 215 S; f f " " 217 Z^ do do « 20 o,„ S: f ^° "21 ::::::::::: 'Js •"o do do " 99 n„ , ^"^ 219 , " do do " 23 219 ^ do do " ?4 ■ ■■■■ gg^ Do do do "OS *..' nOK to provide certain amendments in th ' (41 Vict., chap. 8, Ont). . . 236 xxii TABLE OF CONTENTS. PAOI The Mortgageg and Sules of FersoniJ Property Amendment ' Act, 1880 (43 Vict, chap. 15, Ont.) ^39 An Act to amend the Law of Property in Ontario (Rev. Stat. Ont., chap. 96, Bee. 13) ^** An Act respecting the Fraudulent Preference of Creditors by Persons in In. solvent Circumstances (Rev. Stat. Ont., chap. 118) 24',' An Act respecting Writs of Execution (Rev. Stat. Ont., chap. 66) 248 An Act respecting the Transfer of Ileal Property (Rev. Stat. Ont., chap. 08, sec.l8) •■• 250 An Act to amend the Law of Property and Trusts in Upper Canada (29 Vict., chap. 28, D.) 251 Appendix of Forms 253 Index of subjects ^^ PAOI ment Act, 1880 239 t. Ont., chap. 96, 244 t)y Persons in In- 24',' p. 66) 248 ;. Ont., chap. 98, 250 Canada (29 Vict., 251 263 301 TABLE OF ABBREVIATIONS. ■^- * ^ Adolphns and EUis' Report*. Ad. & E •< <■ II ■^* Alabama Reports. •^^- ^' J Albany Law Journal. ■^'^*" Allen, Massachusetts. t^'P- i^"*"" Law Reports, H. of L. and Jud. Com. N. S. •^PP' "' Appeal Reports for Ontario. ^'^ Arkansas Reports. ^^^ Atkyn 8 Reports. ^- * -^ BamewaU and Adolphus' Reports. ; B. & Ad " ' «"p«"»' Court. B»»l8t Bulstrode's Reports. B"" Burrows' Reports. ' ^'^ California Reports. \: ^*"P Campbell'sNisi Prius Reports. ^- B Common Bench. C. B. N. S " 11 xr a . .-,, „. NewSenes. , Chaa Cham Chancery Chamber Reports, l^*"*- • ■ Chitty's Reports. C. & J. . . .Crompton and Jervis Reports. ^^vlnrke s InsoL Act. .Clarke's Insolvent Act. 1876. II m i ! iJiii XXIV TADLE OF ABBREVIATIOKS. CI. ft F Clarke »ud Finnelly'g ReporU. C L. J Canada Law Journal. C. M. & R Cromptou, Meeion and Roaco* Report*. Conn Connecticut Reporti. Con. Stat. U. C Cnniolidated Statute* of Upper Canada. Cow Cowper'i Reports. Cowp " " Cowen Cowen New York. Cox Cox'g Reports Chancery. C. ft P Carrint^on anu Payne Reports. Cubh Cushing, Massaobunett's Reports. T)e G. F. & J De Gex, Fisher and Jones' Reports. De G. ft J De Gex and Jones' Reports. De G. M. ft G De Gex, Maonaghton and Gordon. Denlo Denio New York. C ft L Dowling and Lownde. Doug Douglass' Reports. Dow Dow's Reports in Parliament. Dowl Dowling's Prao. Cases- Do wl. N. S " " " New Series. Dowl. P. C " " " " Drap. K. B. Rep — Drajvi-'s Reports King's Bench, U. C. Drew Drowry's Reports Chancery. D. ft R Dowling and Ryland. Duer. Duer N. Y. Superior. E. ft App. K Error and Appeal Reports, Upper Canad»i East East's Reports. E. ft B Ellis and Blackburn. E. B. ft £ ElUs, Blackburn and Ellis. E. B. ft S Ellis, Best and Smith. Edm. Sel. Cases Edmond Select Cases, N. Y. E. D. Smith Smith E. D., N. Y. C. P. Edw Edwards Chancery, N. Y. E. ft E Ellis and Ellis. ElLft HI Ellis and Blackburn. Eq Equity Reports. Eq. Ca. Ab Equir.y Cases Abridged. Esp Espinasse. Ex Exchequer. Exch " Ex. D Law Reports, Exchequer Division. Exch. D F. ft F Foster and Finlayson's N. P. R. i""!* Florida Reports. Iv, ft Fin Foster and Finlayson's N. P. R. Gs - , - . — .Georgia Reports • Geo. .. Oiff. . . . G. ft J. Gr Grunt. . Gratl. I Gray, . Ure«b.. /$ 111 Ind Inst Iowa. . . , Ir. CTi. I Ir. C. L. Ir. Eq.., ■^-*La '^^ TABLE OF ABBREVIATIONS. ''»" OeoFKe Mim: Rei)ort* «iff Oiff»nrii Re|M)rt». ^' * -^ Olynii and Jamenon Benkruptcy Roporta. ^"^ (Jrant'« Chancery Reports U. C. and Ontario. Grint " " <' << II 'irail, K. * A Error and Appeal Reports U. C. and Ontario. Cfr*^ Gray Ma«a: Reports. i Crevu Green, New Jersey. H*(«. Con HftKKard'ii ConHistory lieporta. Hare Hare'n Reports (Chy). Hawks Hawke'H Reports, N. C. Hayes (Ir.) Hayes' Report.t Exch., Ireland. H- * C Hurlstone and Coltmau's Reports (Eq.) Hilt Hilton's Reports, N. Y. C. P. Hobart Hobart's Reports, K. B. !l"^ Howard's Reports, U. S. Supreme Court. ""™P Humphrey's Reports, Tenn. „• * ^ Hurlstone and Norman's Reports. HurUt. * Colt Hurlstone and Coltman's Eq. Reports; I" Illinois Reports. ^^^ Indiana " I"»t Coke's Inst. J°*» Iowa Reports. f ■■• ^- K Irish Chancery Reports. Ir. C. L. R " Common Law Reports. ^'■•*!l " Equity Report*. * J»c. ft Wal Jacob and Walker's Reports. i"^"' Johnson's Reports, N. Y. Johnson •• n ,, Jut. N. S. . . . XXV ...Jurist, New Series. K. ft J. Kay ft .Kay and Johnstone's Reports. r*' Louwiana Reports. , I^'O" Leonard's " I'-'l'^}^. Law Journal Chancery. L. J. Ch, App. •' L. J. C. P .' .< L. J. Ex « L. J. Q. B " L.J. U. C. N.s!!." " Chancery Appeal. Common Pleas. Exchequer. Queen's Bench. TnrH K»^ T ,« Upper Canada, New Series. Lord Raym Lord Raymond's Report^s. T ■ « n ''J" ■'^ ^"'' Reports, Chancery Division. ^•?-^-^- " " CommonPleas. L. R. C. P. D " '< « , ^- ^•^'^ " " Exchequer. nivio ^^^^ TABLE OF ABBREVIATIONS. J'-^-^X.D .. " .. Di^i,;„„_ I'- ^ M " " Equity; L. R. Q. B. Law Reports, Queen's Bench. J^-^Q-B-D .. .. Division. ^- ^ Law Times. ^■T.N. S " " New Series. ^^' * Cr Manning and Granger. ^tarsh MarshaU. ■"'^"■'^ Massachusetts Reports. Mau. A Sel Maule and Selwyn's Reports. ^^"' Maryland Reports. ^- ^ * D Montagu, Deacon & De Ge^. ^i>i-Ch Maddocks Chy. Reports. ■^^® Maine Reports. Met Metcalfe's " Mich Michigan " Miss Missouri " Miss Mississippi " Mo Missouri " Moo Moore's " Moore C. P Moore's Common Pleas Reports. Moore P. C " Privy Council Cases. Moore Q. B Sir F. Moore's Reports. Mood Moody's Chy. Cases Moore, J. B J. B. Moore's Reports C. P. Morris Morris' Iowa Reports. M. & Rob M«Kly and Robinson's Reports. M. & S Maule aud Selwyn's " M. &W Meeson and Welsby's " McLean McLean's Reports (U. S. 7th Circuit). N. C Bingham's New Cases. N- C North Carolina Reports. N- C?hip N. Chipman'8 R«ports. Vermont. N. J- Eq New Jersey Equity Reports. N- H New Hampshire Reports. "•^ New Reports, Bosanquet and PuUen. ^' Y New York Reports. Ohio Ohio Reports. OhioS" Ohio State Reports. O- S Old Series, Upper Canada. X fK?6 or ) Paige, f Paige Reports,' N. Y. Chancery. Peakes N. P. C Peakes' N. P. cases. ^611 Pennsylvania Reports. Pet- Peters' Reports, N. S. Sand. Ch. Baund ficott Scott N.I Sim Sm. AG.. Sm. L. Ca Storey . . . Stra Strobb. . . Swans . . . . Taimt.... T.&C... Tex Tex. R. Ct T.R I^Vem ' Ves Ves. Jun.. Vt TABLE OF ABBREVUTIONS, ■ ;' P'«l' Pickering's Reports, Mass. Prac. Rep Practice Reports, TJ. C. and Ontario. " R " " 11 K P"«e Price's Reports (Exch). P- Wms Peere WiUiams' Reports. P. W <• " f. Q- B Adolphus and Ellis, Q. B. Report*, N. S. ^•^' ^ I-aw Reports, Queen's Bench Division. Kaym Raymond (Lord). ^"'e Rawle's Pennsylvania Reports, *• S- O Revised Statutes of Ontario. Rev. Stat. O " " ^'•'''- -El Richardson's Equity, S. Carolina. ^^- ^^' Y Robertson's N. Y. Sup. Court Reports. IwU Roll of the Term. Band. Ch Sandford Chancery, N. Y. Baind Saunders. Scott Scott's Reports. ScoHN. R Scott's New Reports. ™°' Simon's Reports. S™- * G SmaU and Gifford's Reports. Sm. L. Cases Smith's Leading Cases. S*<«'«y Storey U. S. (1st Circuit). S*''* Strange's Reports. ^iro^^h Stobbarts Law South Carolin a. Swans Swanston Reports. Taunt Taunton's Rep-rts. ?!,'*^ Thompsonar ook, N. Y. Superior Court Tex Texas Repcd. Tex.R.Ct.App.... " '. Court of Appeal. TK Term Reports. *^' ^- 1^- J Upper (y'anada Law Journal. U.C.L.J.,N.S " .. " .. New Series. )^C- C. P '. .. Common Pleas. K-^-Q-^ " " Queen's Bench. ^•^■R " " Queen's Bench. ^e™ Vernon's Reports. ^*^ Vesey's Senior Reports. '^*'- J"° Vesey's Junior Reports. ^' Vermont Reports. : '^Vend Wendell's Reports, N. Y. Wendell " << << Whart. Law Lix.... Wharton's Law Lexicon. xxvu XXVlil TABLE OF ABBREVIATIONS. Wh. & T. Lg. Cm. . .White and Tudor's Leading Cases. ^"' • Wisconsin Reports. Z'u WUliam Blackstone's Reports. ^'"f Willes- Reports. J;-?- Weekly Reporter. * ** Walls and Sirgent's Reports, Penn. !^®'^ Yelverton's Reporta. ^®'| Yerge, Tennessee. • * *^ Younge and Jervis. Younge & Coll Younge and Collyer. Y°"°»e Younge's Reports. TABLE OF CASES CITED. V follows the name of the Plaintiff. PAGE Adams v Graham i;j;} Adams v Wlieeler , 117 Adams v Wildes 229 Aiken v Appleby 127 Albert v Grosvenor Inv Co ." 131 Aldridge v Johnston 43 Alexander v Gardner ," 44 : Allan V ("larkson 16 Allan V Lathrop I67 * llatt V Kerr no, ] 12 lien V Arme 77 lien V Cowan ' 85 Hen V Thompson 133, 138^ 13!) j Ames V iJornan 85 I Ames V Phelps 201 Ancona v Rogers , . iijjj 125 Anderson v Howard ......' 224 Anderson v Maltby 80 150 Andrew, In re 78, 145, 150 * --hn V Mmms C4 Barton v Dawes ^"^^.? Barton v Vanheythuysen in Bates V Wilbur..... li" Beales v Tenant yA Beam's Glanville .... .'.'.■.' - BcaHy v Fowler. 190 Beaumont on Bills of Sale'.V.'.'l', 33* V Thorpe ' ' Beecher v Austin, 102,' miuh', 143, Beekman V Jarvis 73, 74, 130 Beers v Waterbury Belcher ex parte .193, 192 72 1.50 144 191 195 102 ni Ang Appleby v Meyers 43 Appleton V Bancroft .' ' " 12 Archibald v Haldan C7 231 Argue V McNeely '." '133 Armstrong v Ausnian, 132, 155, 191' 192, 193, 200, 203, 200, 210 Armstrong v Moodie no Arnoli' " • • Anindi Ash In re [[ jy Ash worth v Dark ......'....['.'..,', ', 126 Atkinson v Bell 43 44 Atkinson v Settree ....*..'.,. ' 29 ■- V Tondinsou 87 Austin V Sawjer 113 Avery v Stewart ..........'. 127 Babcock V MFarlane 53 ' Bacon's Abr Tit Mtge 2 Bailey ex parte , , , [ 15 Baldwin v Benjamin, 28, 10,5, 140 ■R 1. 1. T, jj ^*^' 1^2, 144, 1.53 164 Balkwell v Beddome 1.34, 222, 231 Banbury v White 129 147 i()4 Bankof Montreal vMoWhirter.. ' 1.50 ' Toronto v McDougall, 87, ,T ^ . , 1"5, 136, 141 — -— Upper Canada v Killaly .... 103 Barber v Maughan . . .193, 194, 195, 198 Barker v Richardson wn Barnctt v Timberlake ... . "r^ Belding V Read . . .'. ■.■.'.■.■. 36, 47,' UQ, Bell V Carter ' j. Benedict v Smitli . . .'.'. 1 -S Benjamin on Sales j . Bennett V Cooper nit Bennett V Wade . . IS Benton v Thornhill ... 1 iS Bertram v Pendry ".si',' uK, 150 Bessy v Windham ^^'^' ^l Bevans v Bolton .... 1 L, Biddulph V Goold. i!", Bigelow V Wilson loV Bill vBament '.'.■. i^a ^'" Bishop " <■'.•"..•.! — ' ' ' trongvMoodie:, ..;... ..-::: U9 Bi^WiTc^shay '''' ''t d V Robertson 157, 162 BittleLtone v Cooti i V IP1 JeUvPhipps 157 Blackmore V Sheila, ^''' J^l Blackmore v Shelly. 110 Blake v Buchanan .' 209 V Crowuinshield .....' 127 V Izard ' ' ' jo.^, Blakely v Patrick " " ' oou »it «in.H Ex parte ' ^^'^ Bland, 15 Bloom V Noggle 07 Blunt V Hialop '. 197' 19H Bond V Newbiirn '' \f, Botcherby V Lancaster {4 Bough ton V BoUBht(m 77 14.*i Boulbyv Bell... .... "' \}.7. Boulton V Ruttan. lo-- IJoulton V Smith '. 145 ,,.,'. Box V IVov. Ins. Co. . . . ' 44 Boydell V McMiehel . . 230 Boynton V Boyd '.'.■..'.■. '.isii', 187 Boys V Smith 48 49 77 Bracket vBuUard ' ' IL Bradley v Holdsworth ..'..[ if)fi Br-intom v Griffits 'lb? 21 ^ Brierlyv Kendall .' .' ! ! ['"s," f- ii BriggH V Bngg ' j,..-. XXX TABLE OF CASES CITED. Brodie v Ruttan, 104, 105, 132, 138, 139, 141, 198 Brodrick v Scale 194 Bromley v HoUandJ 37 Brooks V Lester 103 Brown v Bateman 102 V Hare 44 V Jones 157 V Kempton 16 V Kirkman 146, 176 Browne v Saxe 229 Bryans v Nix 41 Buckley \ Landon 209 Bullis V Montgomery 118, 120 Bulmer v Hunter 157 Com. Steamship Co. v Ijoultor. VJl Conard v At. Ins. Co loi Congreve v Evetts . . 110, 111, 112, 224 Conklin v Shelly 222 Cook V Flood 9 (j)j V Pritchard ' l(; V Grey 128 V Stephen 209 Coolev V Hobart ij), 143 Coombs V Beaumont 230 Cooper V Smith '. . . . . "2 Ex iiarte ;jo Coote on Mortgages Ho Corbett V Sheppard 89 Cornell v Moulton ., , , 127 Bunker v Emany 52, 61, 125 | Cornish v Clarke ...'.'.' 156 Bunn V Bunn 82 I Cort v Sager 230 Corvall V Uuvall iifj^ 170 Cottington v Fletcher 140 Cotton V Marsh 58 V Guy. 82 30 Burdett V Hunt 98 Burke v McWhirter 06, 77 Burrows v Stebbins 123 Burton v Bellhouse 123, 231 Cadbury v Nolan 123 Oadogan v Kennett 10, 11, 172 ('alcutta V Dewattos 44 Calkens v Lookwood 113 CiUl V Gray 220 Calombine v Penhall 157 Cameron v Stephenson 18 Campbell v Mersy Docks 43, 44 V Strangeway 191 Campion v Cotton 24, 157 Carpenter v Meyer , 123 V Blote 163 Carr v Burdis 16 Carrington v Roots 2, 114 Carnithers v Reynolds 121 V Shedden 91 Carscallen v Moodie 123, 128, 146 Case V Jewett 188 Castle V Ruttan 72, 73, 179 Chamberlin v Green 55, .58, 119 Chambers v Smith 128 Chapen v Crane 221 (.^hapman v Weimar 40 Charter v Stephens 88 Chedclell v Gale.sworthy 110 f !hinery v Viall 88 Claflin V Carpenter 115 Clarke v Garrett 127 V Bates. . . . 144, 165, 180, 184 's V Insolvent Act 56, 67 Clavering v Clavering 77 Clint, In re 1,57 ( 'loster V Headley 60 Clute V Robinson 209 Cobbett V Oldtield l;»8 Cohen Ex parte 17 Coldwell V Reeves 48, 229 Cole V Kernott 69, 81 V Middle 209 Coleman v Crocker 78, 1.50 Dixon v Yutes . . Coty V Barnes 51; Couch V Smith 115 Courtis V Webb 189 Crawford v Meldrum i;j v Hunter 90 Crombie v Jackson . . 65 Crosbie v Murphy l.j.j Crosby v Wadsworth II4 v Chase 204 C'rossley v Elworthye 86 CrossweU v AUis 228J 231 Crowley v Cohen ' 91 CuUoden v McDowell 12^ 190 Cummings V Morgan,110,113,120,154', 224 Cunliffe v Harrison 44 Cunoeus . . 12, 13, 14, Anc. Univeks Hist : vol. 2,-2 Curd v Wunder ry.i Curtis v Auber 112 v T, 140 Doyle V Steijlieiis 120, 122 Duke V Strickland 48 Dumble v White 66, 67, 231 Diincroft v Albrecht 100 Dunn V p'erguson 114 Dunning v Stearns 48, 229 Dupree v McClonahans 109 Dutton V Morrison 14 V Solomonson 44 Dyson v Morris 9 15, J20 75 IG 103 20i> 2.30 120 Edgar and C^hrysler's Insol. Act.. . . Edwards v BauL'h . 14 30 ; V Edwards 87, 151, 188 V English 140, 151 : -— V Harben 40, 50, 51, 153 : Elder V Miller 2''1 i Elliott V Phybhus '.'.'.'.'.'..'. '. '. 44 , Elmore v Kingseote 2 Ely V Caruley j ' " 192 Emmctt V Marchant 127 | Ei-skine v 'J'ownsend 101 j Eslick, Re Exparte Alexander.. . ] . . 115 j Evans v Roberts 2 114 ! Everleigh v Purssord ' 85 i Evertsoii V Evertson . .' .' ' 209 ' Exparte Alexander In re Eslick '. '. '. 115 j Bailey 15 I Baum 65 I " Belcher 102 — Bland 15 (Johen In re Sparks 17 — Ooo|)er In re Bauin.. , . 30, 152 Crawcour In re Robertson 102 " rallon 127 ■ J>'"^,'' 15,' ifl, 101 ■■ r letcher 124 ^^ Foxley, Re Nurse. .... 13 if, ^1^]^ Hawker, In re Kecly 16 Heyman l33, 140' Fenn v Bittlestone. Ferrie v (Jleghorn ■ Fisher, Ex parte ; Fiteh V Humphreys. I — ; — V Cotheal '.], , ' Fitzgerald v Johnson . . . I landers v Ohamberlin .... ^ ,„ F eming v MoNaughton, 28, 80, 143, 230 l< letcher, Ex parte . i'>^ Flory V Denny V.' 6,' iosi 102 Folsoui V I'lemence . 17s Forbes v Shattuck . 1 1 ? F'ord V .Stuart .... iij Forest v Tiiikman {r't t osdick V Barr j-j. F'oster v Smith .....' 79 ' i •)•<' 1 7(1 Foulgerv Taylor..... ' ' \V Fowler V Hoffman "y. Fox V Burns. .. -ion -;— V Mackreth.....' .'.■.■.'.■ ^,, Foxley, Ex parte in re Nurse '. '. ' \6, vj F ranklin v Neate .... 5 Fraser v Bank of Toronto, ']' 70,' 103 „ P, , , 198. 222, 225, 220,' 229 V Gladstone 1157 V Hilliard .' jjo V Lazier, 3, 4, 83. 'lOO,' 107', „ 122, 213 ^,PfK« 64 "1 hompson 1,57 Frederick v Barr JVeehold, L. & S, 14U vBk. of Com, Freeman V Pope \\' "Ja FrinkvBranch '^' 1^7 Frost V WiUard ia a"'* Fry V Miller.... ' ft;* F^uller V Paige .■;.■.■;.' T^ F'umeaux v Fotherhy ....'...'. 6-1 rr • -^y ■ • ■ • l'.*^. I-IO, 233 I Gale V iJurnell 40 110 m •>')n Hooym.an,ReVinning,118, 133 v Wrie ' ' ' off Cook 1l! KM .. H7.1,. ■'•" " ■ Izaril, Re Cook .' lo' 101 Jj^.y 125 ~I~-^"'f;- •■■•;• 15, 10, 161 — i-fwiH, Re Henderson Us ■•" Marsli yr O'Dell, Re Walde'n.'. '.'.'.'..' 152 ■ —■ I ayne. Re Cross 31, 107 • Pearson 44 r~ — ?''y?''*' '.'■'..'.'.'.'.'. 102 ''^ Scudamore 14 — Stephens, Re Stephens i'7, *— Stephens Re Pearson . . 86,' 150 ~ loss 220 — Trevor, Re Burghaidt. .','.'. 10 I V Williamson .. 2I I Gardner v Lane .'.'.'.'.'.'.'.' .' .' 152 ~ ; — 7 McEwan \ ,\\\ 222 Ireach V lugall ni I Gerry v White \ io5 102 j Gilchrist V Ramsay ' 17 1 Gildersleeve V ..uit 19'> I Oillv Penny .■.'.'.'.'.'.■.'; IC7 i Gillet V Balcom 70 Glover v Black '.',", 9J, Goddard v Gould u,; Godts vRose '.'//_ 4|j' 44 Golden v Cockrill ... ' 031 Googins v Gilmorc, , "75 Gordon v Ross ^7 XXXll TABLE OF CASES CITED. PAGE Cottwalls V MulhoUand 85, 87 < iough V R vei ard us Grace v Whitehead 18 Graham v < Chapman ' 18 V Furber ' 77, ' i^j 17;{ V CJracie 221 V Juhnson 2't Grant v MoLean .....'.'. 150 Grantham v Hawley 108 Grn ves v Wild 114 (iregg V SaTidford ....'.'..' 173 (Gregory V ThoniaH 188 Grirtith on Bankruptcy 16 Grimsby v Ball . . jjlj 151 Grindell v Brendon 131* ms Hornblower v Proud infi Hosmer v Sargent go Hough V Bailey ' jgy Howard v Cantiy !!!...!!. 72 — V Ames ' ' ' ' gg 1"; ■■ V Gresham ona Howe vKelly jgjt HowelvMcParlane 220,' 222! 230 Howell V Ooupland . . 43 44 Hickey v Burt ' ono HillvBeebe ..]'.'.'.'.['" 188 Hiscott V Murray 231 Humbler v Mitchell ' .' .' '.".'.". [ '. '. '. ,' .' ;.' 1^ G. T. R. V Leys 1(J8 ,, „ . 1!»0 Gunn V Ruttan 3;-, Gurney v Jame.s 122 Hackett v Maulvere 174 Haight V Mclnncs ' " 120 I4(i Halpeniiy v Pennock. . . 6, 19, 105,' l(i2 Holcomb V Shaw (jj Hall V Simiwon '. . .. . 53 Hallen v Hunder ..'....' 11,5 Holt V Carunchel, 220, 221, 228 220 230 Hamill v (jillespie .'.".' 07 Hamilton v Rogers '.'...'.' 48 Haiuy V ( 'arroll 200 Hansen v Meyer 44 Harding v ( 'o'lburn 40 Harding v Kuowlson .... 145,' 158, 108 Hams V Com. Bank, 123, 124 127 'J • l'?3. V'***. 222, 227, 230,' 231 Jlarrison v Blackburn loi; Hart V Milts " 44 Hartley v Tatliam ..'. ouy Harvey v Ashley .' ' " ' "04 Hawes v TiCader ] ". ]4() Hawker, E.\ parte .'. ' k'j Head V Goodwin '. '. ' io!)' 201 Heath v West ig Hellawell v Eastwood . . . . ..... ()2' 115 Henderson v Kerr 07^ os' 69 In re ex parte Lewis'. . , ' 118 V Morgan 173 Henry v J (mes j27 Herman on Mortgages . . 2, 3 ' '4' ' 7 H. i.n .. '^^' 28. 0". «0, '71', 92 Hersee v White g,-. Hesseltine v Siggers Hunt Hun' Ho ,,7.r'«r 72, 179 V Jtobinson ig? Hutcheson v Kay !!!!!! 102 — V Roberts 220 vOrutUyell 15, iij; ihi V J^>it'li«h 194, 198 Inglebright v Hammond 43 In re ShiiiWarre no Hutto 112 13 I In re .Shi|)Uarre I Insol. Act, 1875 Isaacs V Roy Ins Co 127 Izard e.x parte lu re Cook . . . . . . ] ' .' If, Jackson v Willard jqi ''v'''''",, ''■'■'■'■'■'■'.'■■'■'. 102 V Kassell jgg ~ V Htackhouse 204 •lacpies V Worthington .'."■■ 130 James v Murray ' 20(i Janiiison v Kerr yf; .Fenkyn v Vaughan '.'.'. 13 ir,„ .Tenner V Smith ' 44 Johnson v Jeffries '///] 174 V H<)l(lsw(5rth ..'.,' 208 ~ V ( 'rofoot 192 Jones V rant W2 114 • V Stathara g V Harter 14 ■ • V Aslibutnham 30 V Atherton ■.■.'.■.'7'2, 179 V Richardson log, ]09 ">' ]j"well 189 vHarns. ,.... 194 V Herbert 209 Heward v Mitchell . 106 119, 121, 134 141, 153, 1.55, 237 106, 107, 124, 230 133, 140 Hewitt vCorbett,, Heyman, Ex parte ^^o, nu Hoadley v M Laine 2 Holmes v Grant 7 V Matthews ......] g V Penny... 21, 28, Sl.'isoi Wli -— V Vancamp ^35 Holroyd v Marshall 45, 46, 110, 111', 234 Hooman.Ex parte, in re Vinning 118, 133 Hope V Hayley 40, 110, 111, 112 I Joseph V Ingram. .' ....['.'.'.'.'.'.'.'..',[ 51 Kalus V Hergert 13 ik Karetv Kosher. •■■•J.o, jn Kemp V Westbrook. . . . .' 5 9 Kempland v Macaulay. . : '179 Kennedy v Brown 110 Kerr v Jeston 127 Kerwan V Jennings. ..■...'.■.'. '. '. '. '. ^3, 179 K.ul(l V Rawlinson 15 153 Kidney v dmssmaker. . . 77' 110 King V England '..'.■. 63 ex parte 1 V 16 Kingsley v Holbrook '. ' 1I4 Kingston V Chapman .35, 226, 230 Kissock V Jarvis 153, igg,' 190 Knox V Meld Kough V Pri( Kramer v Jiii Lai V Stael. . Lalflin v Grif Langton v He V Hi Lanoy v Duki Latimer v Bat V Wh, Lawler v Grit Leake v Lovei Leary v Rose. Le Banfiue Nn Legh V Legh . '. Leonard v Bak Lcpard v Vein Lester V Garla Le Targe v De Levy V Green. Leys V McPhei Lewis V Palmei Liffin V Pitchei Lillburne re . . Linden v Sharj: Lindley on Pari Lindsay v Gibb Llewellyn v Lie Lloyd V Lloyd. r V Lee . . . Lockwood V Eu Logan V LeMesi Lomax v Buxtoi London Co v Dr Longman v Trip Longridge v Doi Loufjuet V Scaw Loucks V McSlo Low V Pen. :; — V McGilL .' '. Lunn V Thorntoi Lund V Lund... MacKay v Doug] Macklow V MaiiE Maitland v Citizt Mangles v Dixon Manning v Mona r—- ; — V Cox . , Mapleback In re Marples v Hartle Marshall v Green' Martin v Porter. Martindale v Booi MartynvPodijer, Mason v McDona rr~, V 'J'lioniai Mathers v Lynch, Matthews v Peave V Walw C TABLE OP CASES CITED. KnoxvMeldnmi... ^f/i Kramer v Bunk ' , .- U>i MiiUKliaii M:iu1r< XXXlll 85 Lai V Stael. . . Lalflinv GriffltiiH', ] '. ' " Langton v Horton. ... : vHigtriim...;; Lanoy v Duke of Atliol Latimer v Batsnn : — V Wheeler.!. . JUV!,'(ltt V Mills Mellish V Viuiormaii' Alem.s V Mi'itis. Meuzies v l)(i,Ii| Afercerv l\.ter.-<.,,r. ■.■;.;. ;-i,; •,:,,>■ if" Merrill.s V Swift . ' "•'• '.'} 10 181) 15 irs 177 120 Leake v Loveilav. X' i '^fr'^''^ ^ '<>'efcr. . . V-n Leary v Hose. i" ^ !^' ' I>i« ( '» v lirowu '. l/.ll Le Kangue Nationalev Sparks ir;ii m'"' '•"'' V^'^y •'••.' 82 Legh V Le.rl, . . , ' '" '^'^ J'> ^i!<-;liie v JJeynol.l.s ... So 201) 50 ,'!7 127 JiBonarcl v Haker Lepard v Veiiioii Lestrr V (Jurland Le Tarye v l)e Tuvll. .'. ^"L Levy V Green..,.. ," Leys V McPherson .....'.' .^ 23 ' 24 i w Lewis V Palmer... ' ^*' ^;'J. Lifflnv Pitcher :.' ^^ Lillburne re . . . t'V^ Linden V Shari>e','.'. it ,, Lindley on Partnersliip '.'.V. j,, i ^f "-; ][ i^: Lmdsay v Gibb . . . it;; ^}"ntehori Llewellyn v lylewellyn. Lloyd V Lloyd '.'.'.'."" 23 ~ V Lee ' 112 2!) 24 Aliddlebrnok V Thoiup.sou Ml arHBill.s„f,s,de... i' Ml erv().stramt-r. Mills V iJa vis ■"■ — — V Kinif Milne V Henry. . . Milton V Mo.siier Mitchell V Wiiislow . ." " 7r~~ — V Fester . ..' Moffat y ( 'oulson M(i I'ockwood V Ewer. ". '^- Logan V LeMesuriei- a-' Lomax v Buxton i V i,-i' London Co V iJrake ' -i Longman v Tripp ... , ;!J^ Lon.rridge V DorviUe. . . '.Z'.'^'.'.'^w, 30 Lon^ o- . „„. .„ Louquet'v Scawen Loucks vMcSloy... an r LowvPen ^ •^"' ,^}, r-vMcGiii : X MacKay v Douglass 77 s,; Macklow V Ml'"-'- ' ' -.langles Maitland v Citizens' Nat Bank Mangles V Dixon... Manning v Monahan. .' r— - — V Cox . Mapleback In re 150 44 143 20!) (i8 20!) 81 83 ■ . . . 103, 120 , (>, 7, !), 31) 17 17 20, 227, 231 123 ....11), 105 113 V ouison ... 14,._i_.- ii') . ireen Martin v Porter Martindalev Booth... tl 57 Martyn V Podger. , . . 70' ikn Mason V MM ;.,„„,., 35 -ii.Va.'s' °° Mason v McDonald,' „ -,,, 220, 220 V J homas 1 45 1 .=«' hers V T.„„„i, i m ,- ^^.X' f™' 158 Mathers v Lynch, 140;i('i4,' 105, 10!), Matthews vFeave...''''''''^i'>f^i V Walwyn. . . . ;.:.• ' ' ^^' 209 C 52, 50, 59,88, McCabe v Wragg ^'^^'' }f^ McCord V Cooper .'.::;'. l^H Mc( ormick v Dif.Ijy .... |^« McEdwardsvPulrffer. ^?? MoGeev Smith ....... ■■io.Vi4V At V Bentley . . . . ' ' " ' ■^"''' jtV }if. MoGivernvMctWand .•.■.; •■^^"•^^'^ Mcllhargey v Martin .... 44 m> 1 Vi Mcintosh V Vansteenburg ' ' lia McLaren v Thompson . .° h^ McLeod V -ArcrcT . ''LI v Fortune, 76, 132,' isij 155, ' '^ 237, 238 XXXI V TAULK OV CASKS dTKI). AFoMartin v MuDdugall, 103, 120 ' ' IL'H, IW, v.n V Mdore 117 McMillan v McSheriv 11"), lU'l Ali'N:;,'lit V (ioi'liiii. . ' r,4 Mcl'lu'isdii V Heyii'il.ts 'J'J-i — MoPdrtliiud V IJead 122 I' Noel! V I'ell 227 y;);; Nat IJank v SjiraLMiu ....,' 1!)() Nat Mur Hank v 'i'liDniimoii , .'.'...'. 1J4 Nath V Crowcll 14;{^ i(;7 NattraflH v I'liair ',,',,', .go,' 2;U Ni'lson V Wliceloek V, Newby v Ko^ors 12S Newman v Tynu'son ]X8 Newton vCh'iiMilliT 14 NfWton V Ontario liank . ....... . 1(1 Nia,^'ara IJank v linsenft-lt ... . . 2(10 Nicliolsiin V Cci(i|)i!r ];i<) NiooUh V Lee yO'l Nisliet vC'ock 1;{.{, I3!l, ui), 145! IW, 2;« Nudell V Williams ]H4 Noorse, Ke ex ])arte Foxley V-i N Y Life V Smith 95, 208 O'JJrien in re ■i;jo O'Connor in re i;j;{ O'Donohne v WilMm. .ICJJ, 104, liiii, 100 Ogden vMon In.s Co yo, 01 Ogg V Shnter ' 152 V Randoli)h 17.5 Drew . . parte. I'AOK 72, 17!» l, 19, 5(i, 08, I 81, 105, 153, 162, 164, 105 i Patrick V Meserve 122 Patten v Moore , . , [ <5(j Patton V l"oy ...102, 234 Randall v Payner ILS iiatcliff V Davis .....,' ,5 Ki" Andrew \ ' yjj Peed V Markle ((5 208 Ke Kslick ex parte Alexander'. ' ' 115 J»eeve v Wliitmore .iO; 47 114 •>23 Keeves V Capper 5, 6, 105*, 162 , Ke J air v Bnest 73 40 I Regina v Jus. of Shropshire'. '.'.'.'.'" 128 -vAtkiiLson 145, 234 Regnall, Ex parte. . . . .'.'.'. ' iqo Keidv Blades.. ■;.'.'."50, 51 - — V McDonald 192 Reigg V Minnett 44 Re Lillbnrne -ij ReMapleback '.'.[[['.'.'. gj Reynolds V Williamson, 103, 194,198 233 tivx. V Jus. of Herefordshire ......! 128 Rice V Sto Rich V Rol Ricliards v Richardsor J{i Kohinson v MrlJ„iiell . . 40 77 71)' 107 rz — ;;{t"-" '■■■'■ •«« V l,ri;,-j,' ij^ V J'atersoii .... iji' i,;.j V MrI)on;,|,l ■.■.■.■,.' UH Simpson V MarKitHon '''*,^ ^MhM V S-rgeant V " \% Made V liiKi; .1 -K sioiiii V u.,.,.:i.„.. ■■•■,;.:. ••..■.••:•". >>i^ Nli'cl<;in Smith V A don I. '''iiiiiian < '11 Milan. Al},'ar. . . , Hiitclicr. Mcl.iaii. • 1!»2, ]!).|, V V V V V V V V iiiu'iiian V Moore lil, i''«'"" m, hiu'iiian r— ■ — v\Viii,„i^i,iiv..!' IJodwell V Phillips. ..;.... lioe V liopi-r Hohdes V I'liwaitiw.! Knse V Scott iiim V I'^lliott.. ..'.'.' .'.'■■■ r — V t'onger .','...'.'. JioRHe vHranestede.. Kussell V Uutterfit'ld l!«ii ]!I2 U ... 14 .... 20 . . 3;j 40, 2.n 7.'-. 87 11.5 120 44 •■<7 11 11.5 ... (W .. 43 ... 41 . .. 187 22, 223 . .. f, 1.57 SpiirkeHv Marsliall.. Spoom-r V .Saiidilftnd.s . ■,. ^<|niiir V Fortune .. 1,, «tat.. V I'laiHt«l . . ■■■ Vf ^^"^"^'■''' (f L^'h II cap 3) . ; 1: liV 12; 72 ('•'<,eo4 ca)) 14) j - (27 thz e 4 <» im (Insol Act im) .. ' 1 ., (H S O cap 180 8 i)ii) ; ^-^ ^;^ (KevStatO cap OGh 27) 74 r ■ V Hammond jjjj Huttan V l^eami.sh . . 52, .O!) <)2 9'{ RyallvRowlen... ' "^'"'l^s; 130 , — vRoUe...... :::::::v:v:io;i]8! Sainsbury v Matthews.. 2 iu Samuel v Colter 52, 5(i; 59;i25; 130 ' ZZIZ - — — V Dwke etnl 70 1711, hands V Standard Ins Co .■.■;;.•. ' ioi — ZZ nanee In re v roronto lou >-; ,\'^ '^"J' ''i"*' ui. . , lOi Sauge V Eastwood. . . 1 «« I ('^O Ed 3 cap 6). ... . {Vl Sanger v Eastwood. J^ : ' J^ Vic cap 74) 110 -(C.mStat-UCcap2iiV2) m — (KSO cap 53 8 3). jj(j — C,,n^/?''Tw*',''2)71.78,87, 118 — ton Stat IT (■ cap 458 13 74 75 75 77 82 s28) } :: ;; 53«2)'.. < ' 98 8 18).. OS 20V,ccap28LP&rAct) 82 (34 Vie cap 58 41 D) 10,5 Saulter v Carruthers .... 1 04 haundersv Frost.... q, Scoble V Hensi Scott 91 -(i.M4Viccap62):.::::;:: hq - Kev Stat cap 1 s 8 .^ubs 15) 183 vdIJK"::;:;: •••••• "8 'steeivsUvn ;'..':'.^^"''««>?J2 Well V Bo.xall ." ' " ' ' H Stephens ex parte ^V ^3{ Scudamore ex parte. ...■■■. HI ^J^I' Benson v Rice l62,i52 231 Seamanv Eager i,* g*""¥'*b" v Dunlop f' '"-' ^^ Severn v (!larke '.V ' ' ' isV l'^ ^1°""^ ' *"] Jnriaprudence. ... 5 Sharpley v Wentworth. ' <« ! «»'"''', ?" ^^'^T""^ 5 Shawv Ganlt ' ' " ' iW u ^*»^«W ^ Hughes jj Shearer V Balxson ' ,^^ §'""« ^' Messerve i£2 Sheara v Jacob ... ihV i'« Strange v Jarvis H^ Sheldon V Edwards ' J^l. T. — T.- ^ Dillon -1? IK) Streble v f:urt 164 'ouchst-me. ... " : CV,"« l^''^ 5I 'Sheppards Shejipard v Sheppard ni? ^.-r,-- • "";"""""i ono Showegan Rank v' krron'. ■.::;■■•■ I'ii , |;'t*J;r,j':»j',;t ^ixon I63; m, 23? Swayne y Ruttan.".' .■.'.' .■.■;.: ' ,'fjl hwctland V Swetland Swift V Thompson lo-, Swire V Leach . ,.„ P'vitzer v Mea. tlL' n;i, 21.f, 'j-.'ii, -2:;, 224, 22!» V UIiU'v 2!l '~ *' 1 V'HaiiKei ......'." 12,S Ihomiisiin V Webster 21, im;, Ki*; 7,7 V (■(.hen iJh' hi IhDinH.iri V Vnuvechen 18k I tidiiie V 'I'illmry " <(■{ Th'iriitiiii V WiKi'd .. 7!- 'I'ift V Hortnn 11,'. hiius V Wilson ij] 'I'oHM ex |)arte j.)() Towimheiiil v Windham '.'.'. 157 I misley v T„„,sl,,y i^,;^ ^.j^ jy^, Webb V haimmmT. . . . 127 ^^t'-i^l .■.':.■.'"■'■ 20!) 11 TliDinas 201 96 Ifi i") 87 44 1'7 VVed^e v Newlivn W..i,d vStaiilrv ]„., W.H.ksvHall.;... . ^"- Weld V (!iitler .'.■,".' West V Skip ,V. . . ilH l-'O Westbroiik V Ra"er . ifd Westoott V (Juiin.. Wcthert'll V SpeucT Whart. /.aw. Lex., Wheeler v XiuhollB 122 Wheler v Mnntetinre j jo White V ^[oins yjj ^kn winr '' !!'■'"''" • • "'4Vi4i'/22l' m White V 1 )eiimaii j^jj V Hai'dit.. . •) ./. Whitniaiv), v"' " ''■'" Wich V I'.irk . Wick V Him|.'h( ■'i. 127 122 17.S IMS 5 V \\'alKer 113 82 . - ■'• I" 11.^ VV i^'KUi V I'eteiH ... '"197 Wild V Williams.... OOT Wilkins v Hiomhead ....'.'.'.' .' 4^ Willard V Rice ' lis 990 Williams V Owens .....'.'.■.■.;.'.■...• g V Hur(,'ess ] ' 127 ~.", ^' Sorrell 209 Williamson V Berrv. iko Wilson V Day ..•...':.■.■.'.■ if V Wilson 109,' iio, ll;j rracey v leiiks rravis V Hishop Trevor ex parte In re Bur-hanit I ncker V Wilson Tiler V Harrison 'l'ii!,'el!eH V Sewoll Tnlley v Smith Turner v Mills 'iV)4, Tuton V Sanoner. Twyne's f 'ase .... Tyns V MoMaster ^ ,„ Tyler v Strange .'.8 117 Valentine v Smith 142, wr, VandenliorLth v Spooner 2 Vernon v Cook ' " 2;j3 Wade V Simcm 39 Walcott V Sidlivan , .'. 2O8 Waldie v Grange 1 94 Walker V Walker :.'.:; g ■*' R'.'rrowes 21,"8i5', 150 V Niles. . 140, 144, 16.5, 192 > \v 11 r, , 212, 2.S0 I Wallace V Cook... . v/ v. Matthmvs, 1 M. & W, 343 ; Smith v, Surman, 9 B. & C. 561 ; Jones v. Flini, 10 Ad. & El, 753 ; Carrington v. Roots, 2 M, & VV, 248 ; Rodwell v, Phillips, 9 M, 6i VV. 505, see post sec. 1, note (c). The law, applicable to absolute and conditional sales, will, to a great extent, be found embodied in the law relating to the latter, so in the following pages, though it may appear that the difference il lost sight of; a reference to absolute transfers, when necessary, will not be omitted. The Jews are said, by some, to have originated the notion of mortgaging and redemption (Cuncwus 11, 12, 13, 14, Ancient Univers, History, vol, 2, 130, 131 ; Bacon's Abr. Tit. Mortgage), and to have transmitted it to the Greeks and Romans (Herman on Mortgages, p, 23). INTRODUf. j^ or Chattel Mortgage of all or the main part of his goods and effects to secure a pre-existing debt, with- out first obtaining the consent of his creditors, or satisfying their claim (Insolvent Act of 1875, s. 3, ss. j; Kalm v. Hcrgsrt, 1 App. R. 75 ; McEihvavds v Palmer, 2S U. C. C. P. 132). It must be taken, that every person intends that which is the necessary consequence of his own act • and if a trader makes a Chattel Mortgage or Bill of Sale which to the knowledge of the creditor neces- sarily has the effect of defeating or delaying his cre- ditors, he must be taken to have made the deed with that intent, and the deed in consequence will generallybeadjudgedfraudulent(J"ew%?iv.FaMY/Aftw, 3 Drew. 419; 2 Jur. N. S. 109; 25 L. J. Ch. 338; Freeman v. Pope, L. II., 5 Ch., App. 541 ; per Jervis, C.J., in Graham V. Chapvian, 21 L.J. 172, C. P. ; Crawford V. Mcldrum, 3 Grant, E. & A., 101). When a trader "gets a present equivalent for his Present goods," and the sale is strictly in the course of his ^'i"'^"'-^"'- business, a Bill of Sale or Mortgage on the whole of his stock to a bond fide purchaser or mortgagee will not necessarily be invalid, though creditors may be ultimately delayed or defeated in their claims ; but because a pre-existing debt is not a present equiva- lent, a mortgage to secure such on all the debtor's effects, having the effect of delaying and hindering creditors, is a fraudulent transfer, with intent to effect that object. Such a mortgage constitutes of itself an act of p„. j^, Act of bankruptcy (Insolvent Act of 1875, s. 3 ; Woodhouse Bankruptcy. V. Murray, L. R. 2 Q. B. 634, 4 Q. B. 27; Ex parte Foxley, Re Nurse, L. R. 3 Ch. App. 515 ; Siehert v- Spooner, 1 M. & W. 714 ; Wilson v. Dmj, 2 Burr- 14 V QualiHcatiun of Doctrine. I.VTRDDUCTION. '^nmde to c,oditor,s as sLZfl ' ^'' '' ''ebuheniti3f..u.ie„:r^Hf:.rtu^^ P y ^£.dgai S. Chrysler's Insolvent Act of 187-, P- 48, and cases there cited, viz Button v \r ' 17 Vos IQ'i. IT , '""^^'^i^^on V.Morrison, vcs. ijj ifo,.,;^^ ^, Z)ma«o,, 1 Burr 4S1 linden v. % V. Z«nca«<,,., 1 wMe'a^"'' "" ''^*"'" ^« -^^blished "that wniie an assitrnment nf *i,« i. 1 estate to secure an! • ""^"^^ "^ " ^^^^^^^'s {oieroeit v. S2Moner, 1 M. & W 77^. nr . <:Vm7i«er, 7 East iW- w, ' ^'^''^^'^ ^• ^;»^VA V r ' '^'""^ ''• ^"y- 2 Burr. 827- 't-rray, L. E. 2 Q. B. 63-5, 4 Q B :7 • u 'T " 12 L. T N S 900 V '^'t "' ^ LillhuTue, i. JN. b. 209 ; Young v. Fletcher, 3 H. & C. 732 ■ IXTRODUCTION. Ex pane Bailey, ti DoG. M. & G. 534 ; Ex parte Bland, ^ DeG. M. & G. 757; Pkilps v. Ifomstedf, L. R 1 tx.D. 62), a similar assignment is valid where a further advance is made, and there is a bona fide intention and expectation, that thereby th« business of the debtor will bo carried on " (Moss, J. A., Kalus y.Hergert, 1 App. R, 78; nee Biitlestone v. Cook 6 E k B^206 ; Meggot v. 31UL., Lord Raym. 280 ; Kidd V. Bawhnson. 2 Bos. & Pull. :,y; Martindale v Sooth, 3 B. & Ad. 504; Ex parte Fisher, L. R. 7 Chy. App. 63G ; Ex parte King, L. R 2 Ch D '>56 • Zomax V. Buxton, L. R. ♦! C. P. 107), although^hJ advance be made for the purpose of paying off a pre-existing debt (ffutton v. Cruttwell, 1 Ell. & Bl 20; 22 L. J., 78 Q. B.; Lormx v. Buxton, supra) The fresh advance mu .t, however, be a substantial The a.We advance. As a matter of law the snmllness of the T^^C'' amount of the advance does not make the assign- ment an act of bankruptcy, but it must be such an advance as not merely to give colour to a security which, m reality, is made only for the purpose of se- curing a pre-existing debt. And a mere nominal exception from the debtor's property is a sign and mark ox fraud (see Ticyne^s case, 1 Sm. L. Cases), and will not prevent the application of the rule that an alignment of all a debtor's property in security for a pre-existing debt is an act of bankruptcy ouf ofthe " l""" :^?""''^ '' '^'^ ^" '^^^^^--^^ ^--«'>«- exception of part of the property be one of such a ""*""•■*'• substantial part, as will not prevent the debtor carrying on his business in the ordinary and usual course. If an assignment includes all the property and IS made in con..ideration of a past debt and of a 15 16 intentiuii to carry on Ijuti ueas, tij lit? Assignment and advance, need not be contempor- aneuua. INTRODUCTION. a furtlier advance miulc at the time, the further advance, if sulmtantial, lias tlio same effect as a sub- stantial exception out of the i)roi)crty, and a sub- stantial excei)tif)n out of the property has the same effect a.s a substantial advance (Kc parte Hawker, In re Kcehj, L. R. 7 Ch. 214; Ex parte King, In re King, L. R. 2 (Jh. D. 256; Ex parte Trevor, In re Burghardf, L. R. 1 Ch. D. 297 ; Ex parte Foxley, In re Nurse, L. R. 3 Ch. .515 ; Carr v. Burdis, 4 L. J. GO Ex. ; Cook v. Prltchard, 12 L. J. 121 C. P.; Brown v. Kempton, 19 L. J. 109 C. P.). But, even though there be made a substantial advance, at the time of the assignment, it will avail nothing- as against the above rule, unless there be a bona ^fide intention, with such advance, to carry on the debtor's business {Ex parte Winder, In re Win- Stanley, L. R. 1 Ch. D. 290 ; Ex parte King, hi re. King, L. R. 2 Ch. D. 256; Ex parte Fisher,' L. R. 7 Ch. 636 ; Newton v. Ont. Bank, 15 Gr. 283; Risk v. Sleeman, 21 Gr. 250; In re Ash, L. R. 7 Ch. 636). " The crucial test is the existence of a bona fide in- tention to carry . n the business" (Moss, J. A,, Kalm V. Hergert, 1 App. R. 79). It is not obligatory that tho iissignment be made contemporaneously with the ; Jvance. If executed in good Jaith, by the debtor at a subsequent date, in pursuance of a prior agreement entered into at the time the advances were made, the assignment will not necessarily be treated as an act of bankruptcy, and therefore void (Ex parte Izard, In re Cook, L. R. 9 Ch. 271 ; Mercer v. Peterson, L. R. 2 Ex. 304 ; 3 Ex. (Ex. Ch.) 105; Allan v. Clarkson, 17 Gr. 570 ; GrifHth & Holmes on Bankruptcy, p. 1097 ; Button v. Crutt- ivell, 22 L. J. 78 Q. B.), and an assignment of sub- ruptcy, i; ment on advances are after re Winsti But wl advances, make the I laim the II C. B. r Ch. 615). It may mortgage given by ' secure &d\ advance be ruptcy and Stevens, In Cohen, In Conveya by him, or on attainin Q.B.500;J Miller V. Oi C. C. P. 51( a party to i at liberty 1 not ratified one years, and at the fore, an inl 2 INTUODUCTIOX. 17 stantially the wliolo of a mortgagor'« property to secure a previously existing debt, and further ad- vances will not in itself constitute an act of bank- ruptcy, if there is a contcmporanoous parol agree- ('..ntempor. ment on the part of the mortgagee to make further ^reemJiT' advances to a substantial amount, and such advances are after wards in fact made {Ex parte. Winder, In re Wimtunlcy, L. R. 1 Ch. I). 290). But where there is no stipulation for further Voiw„tury advances, ,f the mortgagee afterwards voluntarily n}:':^^".^^^ make them, he cannot, thereby, be permitted to rlaim the assignment as valid {Pennell v. Reynokh 11 C. B. N. S. 70y ; Ex parte Foxhy, Law Rep. 3 Ch. 615). ^ It may not be out of place here to notice that a /;.„„.. mortgage of the whole of a mortgagor's property ^'''"''• given by way of renewal of a former one given to secure advances, but not registered, is. if uu fresh advance be made by the mortgagee, t of bank- ruptcy and void though duly registered {Ex parte Stevens, In re Stevens, 20 E,j. 78^1 ; see also Ex paHe Cohen, In re Sparks, L. R. 7 Ch 20). Conveyances by an infant ire generally voidable ^'""veyaneeH by him, or his heirs, either before or if not ratified "^ '*" ^"'''"^• on attaining majority (Gilchrist v. Ramsay, 27 U. C. Q. B. 500; Featherstont v.McDonell, 15 U C C P 162- Miller V. Ostrander, 12 Gr. 349 ; Mills v. Davis^B u! C. C. P. 510), therefore, although an infant may be a party to a Bill of Sale or Chattel Mortgage, lie is at liberty to avoid the same either prior °to or if not ratified, after he reaches the age of twenty- one years But an infant cannot avoid a contract, I... ea„„..t fore aninf Tr T ""^'r ''' " '''^"' *here-LtXJL lore, an infant bought .a honse, and gave back a ''"'''"'' m IH Mortgage by one of a Part- nership. INTRODUCTION. mortgage for the balance of the unpaid purcha«. money, ho cannot repudiate the mortgage, and keep the horse, or maintain an action against the mort- gagee for taking the hor.e" by virtue of the mort- gage (Grace y. Whitehead, 7 Gr. 591 ; see^...A...^„, a •! .V ?'""*" °" Mortgages, p. 478. cases here c.ted I an infant is of sufficient disiretion to be capable of committing a fraud, he will be af- fected by It ; therefore, if an infant misrepresents his age, and thus induces another to take a conveyance or mortgage from him, he will not be permitted to afterwards dispute the fact, upon the faith of which that other took the mortgage or conveyance (Lear, Ab. 510,) and a Bill of Sale or Mortgage from an infant, may be upheld, and the infant bound by it where It is given in payment of or to secure pay- ment for necessaries supplied to such infant If a blind or illiterate person desire to hav. read over a Mortgage or Bill of Sale presented to him for execution, and such is not done, and he is induced to execute it; the execution will not be sufficient. If the party that is to seal it be a blind or an ill- iterate man, and desire to hear it read, it must be so read for. if such man be to seal a deed, and he desire to hear it. or U> hear the contend of it read or declared to him fii^t, and it be not done, and h afterwards seal and deliver it, this is no good deed" Shep. Touch, 56, see Owens v. Thomas, 6 U. C. C P 383; Bennett v. Wade, 2 Atk. 327). A blind or Illiterate man camiot therefore, b. bound by an mstrument. not read over and explained to him which he has improvidently signed, but which 2 ha. requested to have read over, before signing INTnODUCTION tr.lr*"'^ ^f"«y exists between members of a Mort«a«e, b, trading co-partnership, and therefore one partner f,"''"'^' '""^ has an implied authority to pledge the partLl^ '"^ """"• effects lor 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 any one partner can borrow money on the credit of the firm; but the mutual agency existing between partners does not empower one partner to bind his co-partners by deed U C C pTs^r'^^ ^— V. Stephenson, 12 underseal(seepostsec.l,ll.S.O.,note(b)aMortgage ''"''- hy one of a firm of partners, of all tho stock in trade to' raise money, or secure endorsements, or other assist- ance IS perfectly valid ; his authority to do the act anses from implication, and cannot be questioned for want ot expi.ss authority (Paterson v. Mau"- J. 90 ; see also Thompson v. Webster, 4 Drew. 628 ; H. of L., 7 Jur. N. S. 531). A Bill of Sale founded on a voluntary consideration may yet be good ; but, if the wi„ n deemed bargainor be indebted at the time it was executed, ^'•'""'"i^nt. it will be deemed fraudulent. Lord Hardwicke (in Walker v. Burrowe.% 1 Atk. 94) says, "he had hardly known one ca.se of a voluntary settlement, where, the person making it, was indebted at the time, that had not been deemed fraudulent." Natural love and Natu al love affection, not beinga valuabl consideration, will not »"J « Section. suffice to support a J'.! .? Sale against creditors (Matthews v. Feaver, i * o> . - 30). 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. In Peacock v. Monk, 1 Ves. 128, Lord Hardwicke in his judgment says : " where any consideration is mentioned, as of love and affection only, if it is not also said 'and for other considerations' you cannot enter into the proof of any other; the reason is because it would be contrary to the deed, for when the deed says it is in consideration of such a parti- ciJar thing, that imports the whole consideration and is negative to any other." But notwithstanding this sound reasoning, in Gale v. Williamson, 8 M. & W.405, wherein the facts were that a father, by deed, www\,mn. assigned to his son, " in consideration of natural love and affection " his dwelling house and all his per- sonal estate, and the son brought an action against tl)e Sheriff, for levying on goods, part of such estate, under a ^^, /a. against the father, the Court of Esche- <]iier decided that it was competent to the plaintiff (rait V. 22 Consideratioii of natural love, &c., prima facie fraud. 13 Eli/, cup, 5. Bxtrinsic evi- dence admissi- ble to negative fraud. INTRODUCTION. to prove that by a bond, bearing even date with the deed of as.signment, he bound himself to maintaiit his father'.s wife and children ; and that the jury having found that it was a part of the same trans- action, and that the assignment was bona Jide, it was not void against cieditors under the Statute' V.] Eliz. c. 5. Alderson, B in that case, said "The rule of law IS, that a deed made merely in '.onsideration of na- tural love and affection prima facie imports fraud, that alone shows, not conclusively, but only pre- sumptively, that it is fraudulent. It follows, there- fore, that evidence may be adduced to show that no fraud was in fact intended. This is not a case in which the parties to a deed are contesting some right arising out of the deed; the question is, whether there was in the transaction in question an intention to defeat or delay creditors. Under such circumstances surely it is reasonable that the party should be allowed to show, by a bond of even date with the assignment to which the fraudulent purpose i,s ascribed, that it was made, not volun- tarily witli intent to delay creditors, but in truth as a consideration for the support of his father's family." (Seo MulhoUand v. Williamaov, 12Gr. 91.) The Courts in construing the Statute of Elizabetli (13 Eliz. cap. 5) have held it to include deeds made without consideration, as being prima facie fraudu- lent, because necessarily, tending to delay creditors • and for the reason that conveyances made on volun- tary considerations arc presumed to be fraudulent extrinsic evidence is admissible to establish or nega- tive the existence of fraud (Taylor's Law of Evid- ence, 6th edition, p. 992, ca-scs cited p. 993). INTRODUCTION. Tlie Chattel Mortgage Acts do not repeal the Sta- tutes of Elizabeth concerning fraudulent convey- ances. They only add other grounds upon which assignment;: absolute or conditional can be attacked and declared void. And an instrument filed under the Chattel Mortgage Acts is still a.s open to the presumption of fraud as ever. The Chattel Mortgage Acts, however, make neces- sary to a valid Bill of Sale within its operation, that the bargainee shall make an affidavit that the sale is bona fide, and for good consideration, and that, in the affidavit, the consideration be set out. Having sworn to a consideration of " natural love and affec- tion," it would hardly avail the bargainee anything, to be permitted to show a further and other consi- deration, for, by so doing, he would be contradicting his own affidavit, whinh alone would render the assignment void within the Chattel Mortgage Act. The consideration of marriage is a good considera- tion. It is the highest consideration recognised by law. A marriage consideration in a settlement made prior to marriage, or in pursuance of articles entered into before man-iage, runs through the whole settle- ment, as far as it relates to the husband and wife and issue, and it protects them (Whart. Law Lex. 474). A marriage contract differs somewhat from other agreements "For as soon as the marriage is had, the estate and capacities of the persons are altered ; and, as children are usually provided for, they become purchasere equally under the settlement with their parents, and are entitled to enforce their rights, although all the named contracting parties to the settlement agree in disregarding it" (A. Wilson. J., Leya v. McPherson, 17 U. C.C. P. 272 ; and see Ll&yd 23 Fraud pre- sumed under Rev'l Stot. O. cap. 119, tut under Statute Aifida\ it ne- cessary under Revd."atat. O. cap. 119. Consideration r( Marriage, the highest consideration. 24 Bill of .SaK- upon consM. eration nf marri.ige. Campiini v. C'ltUiii, m INTRODUCTION. V Lloyd. 2 M. & Cr. 192; Randiff v. Farkyns-, 6 iJow, 208 ; Harvey v. Ashley, 3 Atk. CIO). A Bill of Sale upon a consideration of marriage IS a valid instrument .vithin our Chattel Mortgage Act (Leys v. McPherson, ante) when the settlement or agr-^ement for a settlement is antenuptial In Campion v. Cotton. 17 Ves. 264, one I. L., a trader in an ante-nuptial settlement declared that in con' sideration of marriage, he settled to the sole and separate use of his intenued wife, goods, household furniture, jewels, &c., which, it was recited, were possessed by the intended wife. I. L. died, and a bil was filed by creditors against the executor and widow, allc-ving that the recitals in the deed of settlement, were false and untrue, and praying that the same might be declared fraudulent and void upon the ground that I. L. had no property of his' own, and that the property comprised in the settle- ment was placed there for the purpose of defeatLig his creditors. Sir W. Grant, M.R., in his judgment «aid It IS clear that supposing the whole to have been I. L. s property, he might have settled it upon his marriage. According to the cases decided at law even the moveable effects might be so settled, and neither the joint possession which I. L. had of the furniture, nor the want of an inventory, would in- validate the settlement. It is clear also, that the |act of his being indebted at the time, and of his intended wife knowing him to be so, would not affec Its validity. Then, assuming the falsehood of the declaration that the property had been pur- chased with the money of the intended wife will that circumstance prevent her acquiring, as against !iim, and those claiming under him, all the rights INTRODUCTION. 25 which the settlement acknowledged her to have and professed to secure to her? I apprehend it to be- clear, that the husband not only could not contro- vert her right to any part of the propej-ty, but was compellable to do whatever acts might be necessaiy to invest her with a complete title to it. lie has expressly covenanted to do so, and the marriage was a sufficient consideration for the covenant. Then how is it fraudulent against the creditors ? The utmost they can make of the falsehood in the deed is that the property was in truth Mr. L's, though it was asserted to be hers ; but if he could settle this property, and has done what bound him to give a title to it, supposing it to be his, how are they advanced by establishing that fact ?****! do not think that it can be li^ferred from the evid- ence, that she knew he was in such circumstances as to make his bounty to her a fraud upon any one." The Statute of Elizabeth (13 Eliz. c. 5) provided 13 Ejiz. cap. .% that nothing contained in the Statute itself should ra»«d^goiKi' _ , lAitn and a make it extend " to any estate or interest in * * consideration. * * * goods or chattels, had made, conveyed or assured, or thereafter to be had, made, conveyed or assured, which estate or, interest is or shall beAipon good consideration and bona fide." It is now settled that a good con.sideration alone will not suffice, the conveyance must also be bona fide ; It was re- solved in Twyne's case, that although there was a debt really due from Twyne to Pierce, yet the con- veyance was not within the proviso of the Statute of Elizabeth because it was not also made bona fide. Under the Chattel Mortgage Acts, conveyances Under Kevd. are likewise required to be bona fide, ^rx(\ f< >r r/ooff iio,'g^;i'f«?th consideration, and the bargainee must in his affidavit sWerfH^i'"'"' required. "' 'Km I m ■h '|l 26 Twyne'g cnee. INTRODUCTION. shew these two qualities to exist. For thic leadou it may not be out of phice to here refer more fully to Twyne's case (1 Smith'.s Leading Cases), the facts of which were : one Pierce was indebted to Twyne in .£400, and was also indebted to C. in £200. ' C. brought an action of debt against Pierce, and pend- ing the writ, Pierce, being j)osses3ed of goods and chattels of the value of £300, made in .secret a general deed of gift of all his goods and chattels, real and personal, whatsoever, to Twyne, in satisfac- tion of his debt. Nevertheless Pierce continued in possession of the said goods, and some of them he sold ; he shore the sheep and marked them with his own mark ; and afterwards C. had judgment against Pierce, and had & fieri facias directed to the Sheriff- of Southampton, who by force of the said writ came to make execution of the said goods; but divers pei-sons, by command of the said Twyne, did, with force, resist the said Sheriff, claiming them to be the goods of the .said Twyne by force of the said gift, and openly declared by the commandment of Twyne,' that it was a good gift, and made on a good and' lawful consideration. And whether this gift, on the whole matter was fraudulent and of no effect by th.^ said Act of 13 Eliz. or not, was the question, * * and in this ca.se divers points were resolved. (1) That this deed had the signs and mark.^ of fraud, because the gift is general, without exception of his apparel, or anything of necessity, for it is com- monly said quod dolosm versatur in gensralihus. (2) The aonor continued in possession, and used them as his own; and by reason thereof he traded and trafficked with others, and defrauded and de- ceived them. INTRODUCTION. gy (3) It was .mado in secret, et (lona clandeatina auyit semper auapicioaa. (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, truly and bona fide et clausula inconsuet semper inducunt auspicionem. Secondly, it was resolved, that notwithstanding here was a true debt due to Twyne, and a good coasideration of the gift, yet it was not, within the proviso of the said Act of 13 Eliz., by which it was provided that the said Act shall not extend to any estate or interest in the lands, &c., 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 accom- panied with any trust. ^ It is not difficult to perceive how very easily the Statute ea«ii, Statute could be evaded, were an assignment per- ' mitted 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 chat- ties of the debtor, and preserve them thus from seizure, or the amount might be wholly dispropor- tioned to the value of the good.s, which of itself is such a suspicious circumstance as to justify a strong conviction that the object of the assignment was not for the sake of the creditor intended to be evaded. 28 Affidavit of good faith anil of n good con- sideration. tjo ''ideration from whom, move?. Consideration not within the Act. Contingent liability of. consideration of. INTRODUCTION. secured, but for the convenience nnd protection of the debtor (Fleming v. McNauijhton, IG U. C. Q. B. 194). Hence it was in Twyne's ca.so. that the advice was given '■■ Let the goods and chattels be appraised by good peoi)le to the very value, and take a gift in particular in satisfactiim of your debt." But when, in addition to a good consideration, the conveyance must be in -ood faith, and still further under the Ohuttel Mortgage Acts, the bargainee mu.'^t make affidavit to the bona fides of the trans- action, creditors are given the protection of statu- tory requisites which shew to persons desirous of shielding creditors, the uselessne.ss of the attempt, and the bonajide^ to be d(>alt with, where a consid- eration passes, being that of the person from whom the considcnation moves (Holmes v. Peymy, 3 Kay & J. 90; 3 Jur. N. S. 80 ; 20 L. J. Ch. 179), places the responsibility upon the bargainee of preventing dis- honest dealing. In general the consideration moves directly from the mortgagee to the mortgagor, but this is not absolutely necessary. It is a sufficient legal consideration for a mortgage, that the consideiation moves from one party, and the mortgage is taken to another (Her- man on Mortgages, p. 103). But when the consider- ation is of such a nature that the affidavits of bona nd^s required under the Chattel Mortgage Act can not be properly taken, then the mortgage is none the less valid, because it cannot come within the scope of the Act (Baldwin v. Benjamin, 16 U C Q. B. 52). ■ ■ A contingent indebtedness or liability is a good consideration, and is expressly provided for by the 6th section of the Chattel Mortgage Act. Due j.re- INTRODUCTION. 2» caution must bo taken in mortgages executed under this section to set forth fully by recital or otherwise the nature of the transaction between the parties (see Thomas v. Olney, 10 111. 53). Forbearance of legal proceedings is a good con- Forbearance .sideration for a mortgag.. by a third person, though ceoKfcon. such person derive no actual benefit (Smithv.Alyar. "''"'-''""'"" '''• 1 B. & A. G03), and .so is an undertaking to accept payment of a debt at a future date, and give time in the meanwhile to the mortgagor (Morton v. Bum and Vaux, 7 A. & E. 19), and the abandoning a suit, instituted to try a question respecting which the law is doubtful, is a good consideration for a mortgage for a stipulated sum (Longridge v. Dor- ville, 5 Barn. & Aid. 117; Llewellyn v. LUwdhjn 15 L.J.Q. B. 4). But the consideration for a mortgage will fail, if Where no it is the abandonment of a suit where the mortgagee '''"'" "^ '*"*'"' has no causo of action ; for instance, where the qu° s- tion to be tried is one respecting which the law is certain, and the mortgagor could in no event be made liable {^Yade v. 8imon, 15 L. J. C. P. 114; Qrahmx v. Johnson, L. R. 8 Eq. 36; Longridge v. Dorville, supra). Forbearance to sue is no consider- ation where clearly there was originally no cause of action {Llo7jd v. Lee, 1 Stra. 94). If a person is about to sue another for a debt, for which the latter is undoubtedly not answerable, tho ' mere consideration of forbearance in such a case is not sufficient to support a mortgage (per Holroyd, J., Longridge v. Dorville, supra). If a party is illegally arrested, his release is no Release f^m consideration for a mortgage given under arrest to b;l!f!'i:!^7d«*' secure the debt (Atkitison v. Settree, Willes, 482). **'''°' va it i ' I I'M /If « SO When forbear auco It good oonsideration. fNTRODUCTION. Benefit or anranco may be a good considera- . tion ,t ,8 neceasary to show some right in one party wh.cJ, he can exorcise with probable effect against the other (Jones v. A shbv mham, 4 Ea.st, 45',) It i« laid down that an action docs not lie, if a party pro- mise, in consideration of a suiTender of a loa.so at will; for the lessor might determine the lea.se at any moment, unless there rvas a doubt whether it wa.s a lease at will or for years. He ..-e the giving up of a questionable right is a suffici.-nt eonsidera" tion to support a chattel mortgage. Anv act of th. mortgagee, however, from which the' mortgagor dmves a benefit or advantage, or any labour, detri- ment or inconvenience sustained by the mortgagee IS a sufficient consideration to support a mortgtgj (Joim V. AMurnham, supra; Bum, v 6'wy 4 Kast, 190; Longridue v. DorvU/e, mpra). Where disputes and doubts exist as to the exact amount due, and there be no admission as to any debt due a compromise and settlement of the claim for a sun.' certain will not support a mortgage for that sun. but the ca.so might be different if there be an admitted sum due from mortgagor to n^ortgagoc (Edivards v. Baugh, 11 M. & W. 641). Though forbearance is generally a good considera- tion a.s between the parties to an instrument- as bc- ■ tween creditors or the assignee in insolvency it somc- cT^Tll' '''f^''''''^''P-'^-reBaum,L.K 10 l.h. D 313, a trader executed a Bill of Sale of substan- tially the whole of his property to secure a debt, for which the gi-antee had recovered a judgment some eight weeks before ; and also to secure another debt Avhich he owed the grantee. The grantor had, the day after the judgment was entered, written a letter to the INTRODUCTION. g^ jfranU'.', undertaking, in tho cvont of his not iasuinj,^ execution on the judgment, to execute to him, on demand, a Bill of Sale to secure tho judgment debt and such other sums as ho owed him. It was at- tempted to sustain tho Bill of Sale given as against the trustee in liquidation, on the considcratjon of forbearance in not issuing cxerntion on the j ..gmert and seizing. But it was held that no equiv.lrr.t had been given for the Bill of Sale, and so it W: void (see Woodhome v. Murray, L. R. 2 Q. B. 634 'hiJ 4 Q. B. 27). And the Court, recognising the autho- rity of this case, in Ex fxryfr. Payne, In re Cros,«,I^ r^Cms,. L R. 11 Ch. D. 539, held, that under a Bill of Sale of the whole of the grantor's property, given for value, the forbearance of the grantee to seize the property comprised in such Bill of Sale, was not, a.^ against the trustee in bankruptcy of the grantor, good consideration for the giving of a new Bill of Sale in lieu of the first; but the new Bill of Sale given under such circumstances without any fre.sh advance to the grantor, was an act of bankruptcy, and void as against the trustee in bankruptcy of the grantor. It made no difference to the result of this case, that the first Bill of Sale was invalid (see Ex parte Stevens, Law Rep. 20 Eq. 78(j). It has been before stated that under the Chattel Mortgage. Mortgage Acts, the affidavit of bona Ms required Z^^!^^. to be made is such, that, to conform to the Act. it JS^t'ooZ'ol would be impossible to take a Mortgage given upon ^'''' a consideration not contemplated by the Statute. When such i.s the case, the instrument not being within the Statute will not require registration a't all, and will be considered and men Law principles. treated upon Cou « 32 INTRODUCTIOX. t! tJd'oouMei. ^ "^.^^^ "^'"^^^^ ^' ^'^'"''^^ ^'y ^^'^ ^*^t"*e of Limita- tion, tions is of course a good consideration for a Chattel Mortgage, and it is laid down in Merrills v. Swift, 18 Conn. 268, that it will be valid as against cred- itors. future ad Future advances, or endor.sements of notes or anv endorsements, otner liabilities incurred by a mortgagee for a mort- gagor, are regarded as a good consideration for a ( 'battel Mortgage. This consideration is one speci- ally provided for by the 6th section of the Chattel Mortgage Act, and is surrounded with certain safe- guards in the interest of creditors, subsequent pur- chasers, and mortgagees in good faith for valuable consideration; a strict attention to which is neces- sary to the validity of Chattel Mortgages based upon such considerations. For instance, it is ne- cessary that the future advances .shall be for the purpose of enabling the borrower to enter into and carry on business with such advances, and that the time of repayment thereof shall not be longer than one year from the making of the agreement. iiabiiit"iimTt. ^" *^^ ^^^ ^^ endorsements or other liability in- ed to time. curred by the mortgagee for the mortgagor, it k also necessary that the liability of the mortgagee ■shall not extend for a longer period than one year. Besides this, it is necessary that the affidavits re- quired by the Act to be made, s' all be strictly in fe:tS'''" a^'co'-dance with the Statute. An unintentional defect, even when unintentional, will, in most caaes, prove fatal, for, to overlook an unintentional omis- sion might encourage an intentional evasion of the Stakute. Liabilities to be incurred, or endorsements to be Application of future advance?. Endorsement-) Liabilities to be incurred. .1, are a good consideration for a Chattel Mort- INTRODUCTION. 33 i'age ; but such a consideration is not contemplated by the above section, and hence Mortgages given to secure such are freed from an application of the Statute (see post sec. 6, Rev. Stat. 0. cap. 119). It is explained, hereafter, how necessary it is that the real terms, nature and effect of the agreement should be truly set forth in the Mortgage, a failure in which will invalidate the instrument. The operative part of a Bill of Sale or Mortgage Operative, a. t requires consideration of theinstni- • ihe words should be such as are apt and proper, according to the mode in which the instrument is intended to operate" (Leith's Blackstone, 258). In law, chattels are indivisible; therefore, there Chattels ukU- is no such thing, in the strict sense of the term, as ""'*''*''* '"''' an esttite in them. The intention of the parties, in regard to them, a l„ Equity Court of Equity will, however, carry out; and in a settlement of chattels upon one person for life with remainder to others, the cestivis que trustem have equitable rights, which they can enforce as effectu- ally as can cestuis que trustent of lands . -d tenements (Beaumont on Bill« of Sale, U; Smith v. Butcher L, R. X Cli. D. 113). The operative words in a Bill of Sale usually Operative are "bargain, sell, assign, transfer and set over " "f°s^e'" ^'" (Beaumont on Bills of Sale, 17), and in a Mortgage ^"'^^V" • grant, bargain, sell and assign." There is no necessity to use other than the pre- P^st and ,,.e. sent tense in the operative part of the Bill of Sale '""* **""'"■ Of Mortgage, any more than in a conveyance of land. If a chattel is sold at one time, and no de- livery made, and at a later period a Bill of Sale is 3 A ;:. iieral vsi^niripnt. •^* INTRODUCTION. executed by the vendor to the vendee in pursuance of the former sale, then the past and present tense may both be properly used in analogy to the old system of feoffment and livery of seisin, when a • deed " usually accompanied the transaction which stated, as the fact was, tliat the feoffor had enfeoffed and then proceeded in the })resent tense to confirm it" (Leith's Blackstono, p. 259). It has elsewhere been shewn from the Report of Twyne's case, that it was the general assignment of all a man's goods and chattels which largely influ- enced the Court in avoiding the deed ; but the doc- trine has long since exploded, if it ever existed, that the naked fact of a general assignment of all a mort- gagor's goods and chattels, avoided the deed as fraudu- lent. We have seen, however, that if the assignor be a trader, within the Insolvent Laws, then that a general assignment is void, except it be to secure further advances, and there be a bona fide intention, with such advances, to carry on the business of the' debtor, as otherwise it is in itself an Act of Baak- tnaptcy, ^^tX re I ^^'^ ^^ ^^^ intention to assign all the goods of a -tnct^f,-eneral bargainor or mortgagor, care should be used to avoid both general and particular words in the assign- ment, for the latter may have the effect of restrict- ing the operation of the former. This often ariaea when liK-re is a description of the articles in the instrument, and they are enumerated in a schedule attached. In Wood v. Roivdiffe, 6 Ex. 407; 20 L. J. Ex. 285, the Bill of Sale assigned " all the household goods and furniture of every kind and description whatsoever in the house. No. 2 Meadow Place, more particul.nrly .set forth in an invcntoiy^or schedule of Woodw Bmoclifff sin, when a INTRODUCTION. 35 even date lierewith, and given up on the execution thereof." When the deed was executed, one chair wiis delivered to the defendant in the name of the whole of the said goods. It happened that the in- ventory did not specify all the household goods and furniture of every kind in the house, and it was held by the Court of Exchequer, upon the authority of Barton v. Dawen, 19 L. J. C. P. 302, and of Morrell V. Fisher, 19 L. J. Exch. 27:3, that the Bill of Sale only operated as an assignment of the "goods and furniture specified in the inventory." In Kingston Kinguon v. V. Chapman, 9 U. C.C.P. 130, a Bill of S' !e Was given '^'^"'"""" granting "all and singular the goods, chattels, furni- ture and household .stuff, now in Sword's Hotel, To- ronto, or particularly mentioned and expressed in a certain schedule marked 'A' hereunder written or hereunto annexed," and in this case it was held the Bill of Sale did not give the grantee any title in goods not mentioned and described in the schedule (see also (?w,?m v. RuUan, 7 U. C C. P. 51C). No matter what the intention of the parties to an Words not instrument may be, effect can only be given to ^'rn'^'f^eat to. words m the conveyance as they are found, and the Court cannot carry out the intention of the parties, under .such instninient, if the words u.sed do not show verbatim such intention {Tapjield v. Hillman, 12 L. J. C. P. 311). Therefore, if it be the intention of the paities to affect future acquired property, that intention must clearly appear upon the face of the deed (per G Wynne, J., Mason v. McDonald, 25 U C C. P. 439). A general assignment of all a man's goods and General a«- chattels in a particular house or place, will notSltll.. include goods and chattels brought into the house *''''''*' ''''^''' 36 INTRODUCTION. seizure. Powci' ndt property. after the aosigiiment was made (Sutton v. Bath, 1 Fo.s. & Fin. 152), because, by the words of such a,ssignmeiit, it is only intended to pa,s,s the property in " all the man'.s goods on the particular place at the tine of the execution of the conveyance." And unless the intention clearly appear, by the instru- ment, to pass after-acquired property, and to subject Povverto seize, it to the rights given by the instrument to an not warrant assignee, a power of seizing all goods, &c., will not waiTant a seizure of any goods not on the premises at the time of the executioi :-r the bill of sale {Reeve v. W}utwA)i'e, 33 L. J. Uh. G3 ; Tapfield v. Hlllman, 6 Scotr, N. R 967; 6 Man. & Gr. 245 • 12 L.J.C.P. 311). Power is not property, and a power to seize after- acquired proper :y, when sr^h is not affected by the terms of the deed, will not be construed in equity as an equitable assignment of the property {Belding V. Read, 3 H. & C. 955 ; 34 L. J. Ex. 212; Reeve v. Whittemore, supra). The mere licence to enter and take possession of after-acquired goods may be revoked, it not being incident to a valid grant, because the words of the assignment are not sufficient to make a valid grant of the after-acquired property. "A license under seal is as revocable as a license by parol, and on the other hand a license by parol coupled with a grant is as in-evocable as a license by deed, provided only that the grant is of a nature capable of being made by parol. But where there is a license by parol coupled with a parol grant, or pretended grant, of something which is incapable of being granted otherwise than by deed, then the license is a mere license, it is not an incident to a valid grant, and it License to en ter and seize. INTRODUCTION. 37 is therefore revocable" (per Alderson, B., Wood v. Leadhitter, 13 M. & W. 844). But the case i;i different where the intention of License when the deed is clear, as to the property it professes to '"'''■'" "^''''• pass. When it is clear that the assignment is in- tended to pass after-acquired property, and there be a novus actus interveniens (without which at law a grant of after-acquired property was of no avail) then the license to seize is something more than a mere naked license, and cannot be revoked. With- out a novus actus, however, the license was but a mere license, because at law, however decided might be the intention of the deed, a valid grant to operate in presenti could not be made of goods which were in posse. Until, tlierefore, there be a novus actus interveniens, a license to seize could be revoked. Of course where present property is comprised in the Present pro- assignment, a license will be irrevocable, for then '"'"^ the power is coupled with an interest. As we shall see hereafter, however, the rule in equity (post s. 1, R. p,„i« j,, y^^^i^y S. 0. cap. 119, note (c.) is very different, and a valid grant may be made of after-acquired property, and in equity a power to seize such is not revocable (Lepard v. Vernon, 2 Ves. & B. 51'; Broomly v. Holland, 7 Ves. 28) not even by the death of the gi-antor {Spooner v. Sandilands, 1 Y. & C. 390). Though the goods as- signed be not in esse, no wofits aciii-s is in equity need- ed to give effect to the words of the assignment, and recent legislation has so far removed the conflicting differences between law and equity, that the rules of the latter are entitled to prevail over those at law. So that at law, now, as well as in equity, a license to seize after-acquired property is irrevocable, be- cause by force of the equitable doctrines it becomes coupled with a valid grant. ■:fi. mamMiwmt,::. INTIIODUCTION. In Re Thirkill Perrin v. Wood, 21 (}r. 492, wili Words capaWe ofpassingafter- --, _- ^.. .„„, ^ i^, ^jimred pro- be found words capable of passing alter-acquirod property. At a subsequent page is considored the right a man hath at law to giant not otily that in which he hath the actual, but that in which he '„ath th,^ po- tential, owiiorship as well. And though a tiling of which a man is the owner potentially ai !-,he- date ol the grant, may be future property, yet a man cau- ii'.n. grant at law future acquired property, in which, at the time of tJie grant, he hath neither the actual nor }.o-.?htiaI ov/nership. It is quite easy to under- stand how impc^issible it is for a man tp grant or raort- gnge that which is not in existence, or that w hich he hath not, at the time of the grant or mortgage. And the principle has been well settled at law that things not in esse, are not tiie subject of a mortgage any more than those things which a man hath°not "qui non habet, Hit m dat." Lord Bacon, in com- menting on his 14th maxim, refers to the law as follows :-" The law doth not allow of grants, except there be a foundation of an interest in the grantor ; for the law will not accept of grants of titles or . things in action, which are imperfect interests, much less will it allow a man to grant or incumber that which is no interest at all, but merely future. But of declarations precedent before any interest vested the law doth allow, but with this difference, that there be some new act or conveyance to give life and vigour to the declaration precedent. Now, the best rule of distinction between grants and dec'j. ra tions is, that grants are never countermandable in respect of the nature of the conveyance or ii : ,. ment, thov.::'; sometimes in respect of th,;. .a„>.. -st INTRODUCTION. 39 p-an tliey are, whereas declarations evermore are ■couatcniiandable in their natures." The interpretation put by the Courts upon the L.tinpretatioa above maxim is that grants are good at law where "^ ^^**""«*''" ilifve i.-i a foundation for an interest. " That although ii lisposition of an after-acquired interest is inopera- tive, yet that such disposition may be considered as ji declaration precedent to derive its effect from .some new act of the grantor after the property is acquired (lAinn V. Thornton, 1 C.B. 379 ; 9 Jur. 350 ; 14 L. J. C. P. 161 ; Millar's Bills of Sale, p. 38). What this new act is required to be depends upon x,.vu.s actus, the nature and circumstances of each transaction, to^be. ''^''""^'^ In the case of Lunn v. Thornton the plaintiff by Zunnx-.Tiwr,- deed sold to the defendant " all his goods, furniture, '""• plate, linen, china, stock, and implements in trade, and other effects whatsoever then remaining and being, or which should at any time thereafter re- main and be in, upon, or about his dwelling house," and also all his other effects elsewhere. The intention to pass after-acquired property ,'it will be seen, was clearly evinced by the deed ; but because property not in es.fe, in which the grantor had not the potential ownership, could not be as- signed at law, this deed Avould be hc4d void ; but the deed evidencing the intention to pass after-acquired property was considered as a declaration precedent to pass that " which should at any time thereafter be in or upon or about his dwelling house," which would derive its effect from some new act. The new act relied on by the plaintiff was that of the defen- dant merely bringing the goods in dispute upon the plaintiff's premises ; but it was held that such an act was not a sufficient novios actus to bring the 40 INTKODUCTIOX. Chattel luutil after-acquired property within the operation of the deed. Where, however, possession is taken of the after- acquired property, by the grantee witli the acquies- cence of the grantor, then there is a subsequent act abundantly sufficient to satisfy the rule at law (Hope V. Hayley, 5 E & B 830 ; 2 Jur N. S. 486 ; 2r> L. J. Q. B. 155). But the property must be reduced into possession of the grantee, and the grantor con- sent thereto, before other rights are ac^juired by third parties {Langton v. Horton, 1 Hare 549 see Chapman v. Weimar, 4 Ohio, S. 481), and the right of seizure when exercised is equivalent only to •. present delivery, and does not relate back to th.> time of the grant {Pavott v. Gonc,reve, 18 L J. Ch. belsc^n^neT. , ^"^ *''*"''^^'" ^'^"^ "^^t of property in a chattel, the chattel must be ascertained and identified at the time of the transfer; but, between a mortgagor anri mortgagee, that specific description necessary under the Statute is not required (see post Rev. 8. 0. cap. 119 s. 23, note (b). For instance it is said that, if I grant two or more books that can be distinguished from the rest, and I grant one more of then., the grant Lsgood for this that it is certain what thing is granted {Lunn V. Thornton, 1 C. B. 379 ; Gale v. Bumell 7 Q. B. 850, 14L.J.Q.B340; liobinson y. M^u.- donell 5 Mau. & Sel. 228). "Or if a man have five horses in his stable, and he gives to me one of his horses in ids stable, now I .shall take which of the horses I will " (Perk, Prof. Bk pi 74^; Harding v. Golhum, 12 Met. 333; Smiih v McLean, 24 Iowa, 322) ; because the horse «iven is easily separable from the others. But sueh'a ^ant INTRODUCTION. 41 would be vohl as against a creditor, from the uncer- tainty of the identity of the horse. In Eose v. Scott, 17 U. G R. 385, Robinson, C. J., was of opinion that certain articles, trucks, waggons, carriages, were so described that they did not pass by the deed, and he say.s p. 388 " For these are not in any manner des- cribed, so that if Mr. Fraser owned more of any such articles of property than the number set down in the deed, it would be impossible to tell which of the class were intended to be assigned ; where a man has a number of horses or cows, and mortgages two of each, how can it be known which of them are to be passed by the deed ? It may be that the numbers mentioned in the deed were all that the mortgagor had of the kind, but it does no', say so." If, however, I grant a man twenty books, to be when .ubect taken out of my library, no right of property in any «««« not^*a^' particular books passes to the grantee (Herman on St'of^p'ro"" Mortgages, 76) because the subject of the grant was '" '' ''""" not ascertained and identified. The case of Brya7i^ V, Fh; (4 M. & W. 774) fully illustrates the law, as to the appropriation of a chattel necessary to a valid grant. In that case, the facts were as follows :— T, on the 31st of January, obtained from the master.s of two canal boats (No. 604 & No. 54) receipts signed by them for full cargoes of oats, therein stated to be shipped on board the boats, deliverable to the agent of T in Dublin, in care for, and to be shipped to,^he plaintiffs at Liverpool. At that time, boat No 604 was loaded, but no oats were then actually shipped *''""''" """' on board boat No. 54. On the 2nd February T en- closed '. receipts to the plain ii/;^ and drew a bill on them against the value of th- cargoes, which the plamtifis accepted on the seventn and paid when due m i2 WTROUUCTION. Bryanfi : A grunt In- operative bo- comert an vxc cutory con- tract, and amounts to a covenant to delivtr. Oil tlhi Gth Fobiuary, W, an agent of the ilofendant, who was T's factor for sale in London, arrived at Longford and j)ressed T for security for previous advances. T on that day jjavu V an onler on T's agent in Dublin, to deliver to W the cargoes of boats 604 and 34 on their arrival there. Boat 604 had then sailed from Longford, but boat 54 was only partially loaded. The loading was completed on the A^'>. 9th, and T then transmitted to W in Dublin a re- ceipt .signed by the master of the boat (in the same form as thuso sent to the plaintiffs) making the car- go deliverable to VV. W received this on the 10th. On their arrival in Dublin W took possession of both cargoes for the defen lant. It was held that the property in the cargo of boat 604 zested in the plaintiffs on their accei)tanee of the bill, and that tht^- were entitled to maintain trover for it; but they could not maintain trover for the cargo of boat 54, since none of it was on board, or otJierwise speciaUii appropriated to the plaintiffs when the re- ceipt for that boat jxis pas lie proj ty, the spocific chattels must be ascertained which are to pass. Now here the oats loaded on board the boat No. 54, at the time when L.ie loceipts were transmitted, were still in Tempany's premises, and he might have perforrr^e 1 his contract with the plaint'*'- uy supplying any other oats of the same i lality uid amount. Your argument must go to tl . ■ hei that Tempany would have been liable in t er he had substituted others for them." But, while a grant of 100 bus' Is of wheat does not operate as an immediate transfei unless the wheat is measured and set apart (because uccuusi: INTRODUCTION. tho transfer has nothint,' to operate upon), Godts v. iiose, 17 C. B. liiO; jA)(j(i)i V. LrJfesarier, 6 Moore I'. C. 116 ; Campbell v. Mersey Dock», U C. B. N.S. 412 ; it becomes an executory contract, and ;i mounts U) a covenant to deliver 100 bushels of wheat, on breach of which an action in sustainable ; when once the ap[>ropriation is made and assfutcd to by tho vendee, then the pro[)crty in the goods passes, and their value may be recovere.l by the vendor undei count for goods bargained and sold ; and tho action will lie as soon as a selection is made by the vendor, (if part of a largo parcel of goods is sold,) and it is at his option to make the selection. The property passes just as soon as the st lection or appropriation is made, althoc.:,di the vendor is not bound to part with the posses i until he is paid the piicc {Rohdes V, Thwaitesi, 6 B. .v C. 3S8; Aid ridge v. Johnmn, 7 E. & B. 885, 3 Jur. \ S. OLS; Afkimon v. Bell, SB. \- C. 277). VVhcti uucv the appropriation is made the property becomes spt and then the vendee is excused from a performau. of his contract, if it became impo.ssible for him to fulfil it, through causes for which he is not answerable. This is tho case when the sale is one of specific property, or a portion of pro- perty which is specific ; the contract then is subject t > the implied condition that the parties shall be excused, if before breach, performance becomes im- possible, from the perishing of the thii, without •If'fiiult of the contractor (Iloivell v. Coiipland, L. R. i Q. B. D. 258; Taylor v, Oaldivell, 3 B. & S, at p. ^.')3 ; Appleby v. Meyers, L. K. 2 C. P. 651). And the sale or raoi-tgage of crops off specific land is there- fore a sale or mortgage of specific crops, although not suwn at the time ot the sale or execution of the 4S «;>i 44 INTRODUCTION. mortgage I/owell v. Cauplanil, supra ; Mcllharg;/ V. Martin, C. C. Doan J. January Term, 1880). The law of appropriations i.s full of subtle distinctions and " the subject gives rise to an infinite number of circumstances, under which its application becomes necessary in commercial dealings." A reference to the cases found in " Benjamin on Sales," from which the above quotation is taken will be found of use (Benjamin on Sales, 290 ; Lutton v. Solomonson, I] B. & P. 219 ; Alexander v. Gardner, 1 Bing, N. ( ' (571 ; Wllkins V. Bromhead, 6 M. & (J. 963; Sparkc>< V. Marshall, 2 Bing, N. C. 761 ; OodU v. Ruae, 17 C. B. 229, & 25 L. J. C. P. 61 ; Lamjlon v. Iliggins, 4 H.&N. 402; Campbell v. The Mersey Docks, 14i(\ B. N. S. 412 ; Hanson v. Meyer, 6 East, 614; Rwjij V. Minett, 11 Ea.st, 210 ; Bmwn v. Hare, 3 H. & N. 484 ; TregeUe.^ v. Sewell, 7 H. & N. 571 ; Calcutta Co. V. De Mattos, 32 L. J. Q. B. 322 ; Jenner v. Smith, L. R. 4 C. P. 270 ; Ex parte Pearson, L. R, :} Ch. Appeal, 443 ; Cunlife v. Harrison, 6 Ex. 903 . Hart V. Mills, 15 M. & W. 85 ; Di^-oft v. Fletcher, :j M. & W. 145 ; Levy v. Gveev?., 28 L. J. Q. B. 319 : Mwiklow V. Mangles, 1 Taunt. 318 ; Bisliop v. Crair. ^ftay, 3 B. & C. 415 ; Atkinson v. Bell, 8 B. & C. 277 : Elliott V. Pybus, 10 Bing. 512) ; but see also Box v. Provincial Ins. Co. (18 Gr. 280), in which case it was held by the Court of Appeal, that the purchaser of 3500 bushels of wheat, had an insurable interest therein, although the wheat sold was never separ- ated from other wheat of the seller; but the judg- ment of the Court appears to have proceeded on the principle, not that the property was absolutely vested in the Plaintitf, but that " they clearly had a right derivable out of some contract, about the wheat contract is INTRODUCTION. 45 and that riglit might be lost sight of if tlie wlieat was destroyed hy fire before the Plaintiff' lequired a delivery. The rule of equity, as to granting after-acquirod iluii..,fK after acquired property must be exercised, else no pro- perty passes even between the {)arties. In equity the instrument operates upon the property so soon iis it comes into existence. At law, property non-existing, but to be accjuired at a future time, is not generally assignable ; in equity it is. At law, although a power is given in the deed of assignment to take possession of after-acquired property, no property is transferred even as between the parties themselves, unless possession is actually taken. In equity it is not disputed that the moment the property comes into existence, the agreement operates upon it, per Lord Chelmsford, Holroyd \. Marshall, 10 H. of L. cases 191 ; and in the same case Lord Westbury says, " But if a vendor or mortgagor agrees to sell or mortgage property, real or personal, of which he is not possessed at the time, and he receives the consideration for the contract, and after- wards 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 the contract would in equity transfer the beneficial interest to the mortgagee or purchaser, immediately on the property being ac- quired. This, of course, assumes that the supposed contract is one of that class of which a Court of KJ Holruud \. INTRODUCTION. Equity would decree the specific perfonniinco. If it be so, then, immediately on the acquisition of the property described, the vendor or mortgagor would hold it in trust for the purchavser or mortgatret', according to the terms of the contract. For if a con- tract be in other respects good and fit to be performed, and tlie consideration has been received, incapacity to perfoim it at the time of its execution will be no answer when the means of doing so are afterwards obtained." The facts in Holroyd v. Marshall, were : T sold certain machinery in a mill to one H. The machinery was not removed, but continued in the possession of T. A deed was executed, wherein it was recited that T desired to purchase the machinery, but was unable to do so ; wherefore it was conveyed to B, in trust to transfer it to T, when he should pay the money, but if he did not pay it then to hold it abso- lutely for H. T covenanted that all other machinery which should be placed in the mill should be sub- ject to the same trusts. Tsold some of tht original machinery and purchased fresh, and sent the accountn of these sales and purchases to H; but the latter did nothing to take possession of the new machinery. H subsequently served T with a demand for pay- ment, and afterwards an execution against T waa put in by a creditor. The case seems to have been often up for judicial opinion. The report of it in 2 Giff. 382, when first it was before the Court, shews a decision in favour of the mortgagees. On appeal it was brought before the then Lord Chancellor (Lord Campbell), and it is reported in 2 DeG. F. & J, 59C, that the foimer decision was reversed, on the ground of the necessity for, and absence of a novua actus INTRODUCTION. 47 The case then was brought before tlie House of Lords, and Lords Campbell and Wensleydale, for the reason reported in 2 DeG. F. & J. 506, favoured the decision there reported. The case was, however argued a second time, when (Lord Campbell in the' meanwhile having died), Lord Westbury.LordWens- leydale and Lord Chelmsford, reversed the decision of Lord Campbell (sec Reeve y. Wkitmore, 83 L. J. Ch. 63 ; Belding v. Read, 3 H. & C. 955 ; 34 L. J Ex. 212, and see more fully, R. S. O. cap. 11 9, s. 1, note (c), post. Sometimes it happens that the property of one Intemungii,., man is so intermingled, or confused with that ^^ '"'"'"''y- another, that the property of either cannot be dis- tmguished and separated. If I give a mort<.a.re upon 100 bushels of wheat, in a certain granaiy in ray barn, and then I mix with it fifty more bushels of wheat, from a different part of my barn, it is the rule of law that I lose my right to the whole 150 bushels ; but if a restoration of 100 bushels of wheat would place the mortgagee in substantially the same po^ifion, as he was in before the mixture then the rule o. law is different. It is carried no' furthei than is necessary in each particular case and each case is governed by its own circumstances' If the goods can be readily distinguished and sepa- rated, then no change of property will take place If the property of each is of the same description and a restoration to each of the same quantity or quantum. a.s they each formerly had, can be made, then the rule will not be applied. But, where, a.s in the case put, I purposely inter- mix my 50 bushels of wheat with the 100 I have ---=--o-«. -0 ttiat .ue mortgaged property cannot be dietmguishel, or the mortgagee put in substan- 48 INTRODUCTION. tially the same position by a restoration of the 100 bushels, the rule that the whole becomes the pro- perty of the mortgagee is carried to the extent that the mortgagee is entitled thereto, as against my con- signee, or even as against a purchaser for value from ray consignee, for the reason that the 50 bushels became accessorial to the property mortgaged, and subject to the lien of the mortgage (Boysv. Smith, 8 U. C. C. P. 241 ; Dunning v. Sterni^, J) Barb. 630 ; Colwell V. Reeves, 2 Camp. 575 ; Frost v. Willard, !» Barb. 440 ; MaHin v. Porter, 5 M. & W. 350 ; Wil- lard v. Rice, 11 Me. 493 ; i2o6wi„so?i v. Holt, 39 N. H. 557; Inglcbright v. Hammond If) Ohio, 337). It has been decided by the American ciise of Duke v. Stricldand (43 Ind. 494), that, where 10 acres of gi-owing wheat ware mortgaged, and the mortgag.; ,ult, or breach of any of the covenants contained in the mortgage, but he may wiiM until the whole debt matures (Martindale v. Booth, 3 B. & A. 498; Herman on Mortgages, 221). Upon condi. tion broken mortgagee m.av take pos- gage' take session. Possession of mortgagor after default, in certain States regard- ed as fraud. IMAGE EVALUATION TEST TARGET (MT-S) 5< /. / & ^ C/j 1.0 1= 11.25 ^1^ Mi «ia .22 u u 6" 2.0 1.8 lA. ill 1.6 Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 4\^ iV iV v> ' '*. 'i. S*, ^\ ^:vQ ;\ 58 INTRODUCTION. right to possession, however, will not justify Mortsragee, Th to get poB8es- „ ^ cieatXeach*^"''''*^''^^® '" Creating a breach of the Criminal of^Criminai Law in order to acquire the property {London Co. V. Drake, G C. B. N. S. 768). And, it is necessary f^^Md ^^^"^ *''"' niortgagee takes posfcssion, that some act act on taking of a public character should be done bv the mort- pUSSGSSlOIlf 1 « gagee before he can vest in himself the title, dis- charged from all eciuity of redemption on the part of the mortgagor. The change must be bona fide, and not collusive so as to mislead the public. And a mortgagee in possession may, without fraud, re- deliver possession of the property to the mortgagor, as his agent, and may bring trover against third persons for its conversion {Cotton v. Marsh, 3 Wis 221). But where, on default, a mortgagee went through the form of taking possession, without however any change in the ])ossession actually taking place, and executed a lease of the goods to the mortgagor, an execution placed in the Sheriff's hands after default and before this taking possession by the mortgagee, but not acted on until after tlie expiration of the mortgage, was held to bind the goods, and the transaction between mortgagor and mortgagee was held void {Chamberlain v. Green, 20 U. C. C. P. 304). 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 owner- ship, it was held to avoid the Bill of Sale as against a subsequent bona fide execution {Paget v.Perchard, 1 Esp. 205). It is not enough that a person is put in to keep possession jointly with the assignor ( Wor- dall V. Smith, 1 Camp. 333, Lord Ellenborough). StCg mort- ^^"^ ordinary Chattel Mortgage usually contains INTBODUCTION. 6» a covenant on the pa)t of the mortgagor, that, gagee to enter, upon default in payment of the money secured, "" *""*'"'''• or that 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 consequences upon default), or to permit the mortgagee to take immediate pos- session, in the event of any of the property being taken in legal process at the instance of any creditor. This latter covenant, however, is unnecessary where the redemise clause is omitted, because, as we have seen, the mortgagee is entitled to posses- sion, as against everybody, and may maintain tres- pass against a Sheriff seizing goods covered by such a mortgage {Porter v. Flintoft, 6 U. C. C. P. 90; Uidtan V. Beamish, 10 U. C. C. P. 90 ; McAideij v. Allen, 20 U. C. C. P. 417; Samuel v. Colter, 28 U G C.P. 240). ■ ■ The limits usually inserted in a mortgage, beyond Limits beyond which the mortgagor is not permitted to remove ™ ^"'i'- the property, are the limits of the county within "°' 'T"^" 1.1,, •' "property. Which the goods are situate ; and then, though the debt be not due, the mortgagee may obtain posses- sion of the property if the mortgagor attempt to remove it beyond the county (Mmsell v. Butterjiekl 21 WendeU, 400). This he may also do if the mort- if mortgagor g; gor sell the property, or in any way part with it, ''^"' *''• or commit a breach of, or fail to perfoi-m any of the' covenants contained in tlio mortgage, if the mort- 60 INTRODUCTION. Ab to written consent of mortgagee. gage so stipulates (Herman on Mortgages, p. 211; Nattrass v. Fair, 37 U. C. Q. B. 158). Sometimes the mortgage provides that in case the mortgagor should attempt to sell or otherwise part with the goods, without the mortgagee's written consent, the mortgagee may enter and take the goods. And where a written consent is given author- izing the mortgagor to proceed to sell the goods mortgaged, " and to continue selling the same until further notice in writing (subject, nevertheless, to the proviso of the said Bill of Sale in other respects)," and the instrument provides that in case of default, or in case the mortgagor should attempt to sell or dispose of the goods without the mortgagee's con- sent first had in writing, it should be lawful for the mortgagee to enter and take the goods, then it will be a violation of the agreement between the mort- gagor and mortgagee for the mortgagor to execute a second mortgage to another party, and the ir.o^<~ gagee, notwithstanding his written consent, is titled to enter and take possession of the goo^>. The authority to sell cannot be a power by which the mortgagor can charge the mortgaged property with a debt he owed, or to enable him to borrow a sum of money upon it (Closter v. Headley, 12 U. C. Q. B. 364). Senr''^'^ J'^ *h« event of a sale upon a verbal consent of the mortgagee, the mortgagee will not be permitted afterwards to claim the goods and set up the want of a written consent (Loucks v. McSloy, 29 U.C.C.P. 54 ; Shearer v. JBabson, 1 Allen, 486). " Where the verbal assent was either admitted or proved clearly to have been given and acted upon, it is a very intelligible equity to prevent the setting up of the I , INTRODUCTION. gl formal provision as to a written assent" (per Hag- arty, C. J., Bunker v. Emminy, 28 U. C. C, P. 442). And a mortgagee may so act as to estop himself Mortgagee from denying that the property passed to the pur- ".'ffr^n d?; chafer when even there is an absence of either a "Sy'* verbal or written assent, as e.g., where he acquiesces """'• m a sale by the mortgagor, or knowingly permits the property to be levied on and sold to an innocent purchaser, or receives the proceeds of the sale or by concealing the fact of his security induces another to buy the property {Loucks v. McSlo^j, 29 U.C.C P 54; M^aKer V. r«;e, 4 B. Monroe, 529). In some of the New England States it is made a crime for a mortgagor to sell without the consent of the mortgagee thei-eto in writing, and if he does sell it is no answer to an indictment that a verbal con- sent was first obtained by the mortgao-or {Side v Plaktcd, 43 N. H. 413). In some of the'statos, also' possession of the mortgagor coupled with a power to sell, defeats the instrument as being fraudulent (see numerous authorities, Herman on Mortgagees p 233) But many United States' authorities have°also o^ab- hshed that a mortgage of a stock of goods with power to sell is valid (Herman on Mortgages, p. 233 cases cited). ' According to the cases above mentioned the or- dinary stipulations entitling a mortgagee to take possession will not interfere with his right to take possession under a mortgage wherein there is no redemise clause. It is important, therefore, and in the interest of a mortgagee, when the redemise clause is inserted in a mortgage, that the mortgage should likewise contain the ordinary stipulations above mentioned for taking possession upon broach 62 INTRODUCTION. Rights of Landlorfis. of any of the covenants or conditions contained therein. Though it is said a mortgagee is entitled to the possession of goods mortgaged as against everybody including the mortgagor (see Porter v. Flintoft, su2rra), this must not be understood to be an in- flexible rule. For as against landlords and other persons having a right of distress against the grantor the rule may find exceptions. "A distress" is defined as the taking, without legal process, cattle or goods, as a pledge, to compel the satisfaction of a demand, the performance of a duty, or the redress of an injury (Woodfall's L. & T., 11th edition, p. 374;; Witli the exception of fixtures (Hellawell v. East- wood, 6 Ex. 295) animals ferw naturce (Co. Lit. 47, BullenOO), things in actual use (Simpson y.Hartopp, 1 Smith L. C, 4 Am. Edn. 187), things in the cus- tody of the law (Woodfall's L. & T., p. 403), goods delivered to a thii-d person in the way of his trade (Swire v. Leach, 34 L. J. C. P. 150), goods of a lodger, and a few other exce{)tions, all cattle, goods and chattels, found upon the demised premises, whether they be the goods of the tenant or of a stranger, may be distiained for rent due to a landlord from his tenant. Therefore though a mortgagee may have the right to possession of the mortgaged pro- perty, that right may be lost by a distress being regularly made at the instance of a landlord of the pren)ises, upon which the goods are, at the time of the distress. The reason is that the landlord has a lien upon these goods, in respect of the place in which they are found, and not in respect of the person to whom they belong (Woodfall's L, & T., p. 396). INTRODUCTION. 68 s contained cap. 19. But the landlord, even after distress, may lose his How landlord right to the goods, when the distress is not sue- Tem^efe '"" eeeded by the goods continuing in the custody of the law; as. for instjince, where they are allowed to remain in the possession of the tenant for a consid- erable time, he being constituted the landlord's agent for that purpose; in such a case a mortgagee, who succeeds in removing the goods under his mortgage, will be preferred (Roe v. Iio2m\ 23 U. C. C P° 76 • King v. England, 4 B. &; S. 784). ' By 11 Geo. 2, cap. 19, s. 1, a landlord may within li G... 2. thirty days seize the goods and chattels of the tenant """ '" wheresoever they are found, provided the tenant hius fraudulently or clandestinely removed them to prevent the landlord distraining. But this Statute only relates to the goods of the tenant not to the goods of a stranger (Foidger v. Taylor. 5 H. & N 202) ; therefore goods, to the possession of which a mortgagee has the right, when once removed from off the demised premises are no longer liable to dis- tress. Where, however, default has not been made in the mortgage, and the mortgage contains a redemise clause, then the property mortgaged, if fraudulently or clandestinely removed, can be followed and seized withm the thirty days allowed by Statute; but the landlord must be satisfied that the goods were re- moved to elude a distress (Parnj v. Duncan, 7 Bing. 243), and the rent must have been in arrear at th^e time of the fraudulent removal (Watson v. Main, 3 Esp. 1.5; Rand v. Vaughan, 1 Bing. N C 767 • Dibble V. Bowater, 2 El. & Bl. .564), though it was' at one time, doubted if a landlord could not follow and distrain goods, fraudulently removed from the :|| i (;.i 64 INTUODUCTION. Revd. Stat. 0.,cap. 180, 8. 93. Rights of an Assignee in insolvency. pvemiHes the night before the rent became due {Furneux v. Fotherhij, 4 Camp. 13G). By Revised Statute.s Ontario, cap. 180, .s. 93, it is provided that in case any person neglects to pay his taxes for fourteen days after demand, the collector may by himself, or his agent, levy the same with Costs by distress of the goods and chattels of the person who ought to pay the same, or of any goods or chattels in his possession wherever the same may be found within the county in which the local muni- cipality lies, or of any goods or chattels found on the premises, the property of, or in the possession of, any other occupant of the premises. It will thus be seen that a mortgagee has greater risk to run at the hands of the collector of taxes than at the hands of a landlord. A landlord can only distrain the mortgaged goods when on the premises out of which the rent issues, or follow them and distrain them ofi' the premises within thirty days next ensuing the day of their removal, when by the terms of the mortgage, the mortgagee has not the right of possession, and the goods have been fraudulently removed, after the rent became due, to purposely elude a disti-ess. But the collector of taxes may seize and sell the goods mortgaged, if they be the goods of the person who ought to pay the taxes {Holcomb v. Shaiv, 22 U.C.Q.B. 92), or any goods in his possession whether on or off the premises, but within the county (see Fraser v. Page et al, 18 U. C. Q. B. 340; Atigliii v. Minis, 18 U. C. C. P. 170). An assignee in insolvency, to whom is transferred the possession of goods by a mortgagor, who had mortgaged his property, and who, at the time of his became due INTRODUCTION. 65 insolvency, was himself in possession of the goods assigned, does not become a wrongdoer by simply taking possession of the goods assigned ; therefore the mortgagee cannot maintain trover against such assignee, but his remedy, if any, is by summary ap- plication under the 125th section of the Insolvent Act {Crombie v. Jackson, 34 U. C. Q. B. 580). The remedy of a mortgagee under this .section " is Mortgagee'^ certainly better for ail parties than any remedy Sfar which replevin or a bill for specific performance & ^"^^ would aftbrd, and it is better than treating the ' assignee as a trespasser or a wrongdoer by some sup- posed or implied act of conversion, merely because by process or provision of law ],e has performed a qmsi public duty, not for his own benefit, but for others of whose rights he is the guardian" (per Wilson, J., Crombie. v. JacJcson supra; Ex parte Baum, In re Echvards, L. R. 9 Ch. 673). In the case of an insolvent mortgagor, the as- signee is interested in the property affected by the mortgage, more or less, according to its value rela- tively to the claim upon it; and, if the mortga..or be in possession of it, and transfer that possession to the assignee, the latter cannot be a wrongdoer by taking that possession, and keeping possession in right of the creditors he represents. The mortgagee cannot (where actual possession is in the mortgagor and the goods are assigned by the mortgagor or by the sheriff to an assignee in insolvency) enforce any claim for a right of property in the goods in the possession of the assignee by a suit at law. Nor. in such a case, does it better the possession of the mortgagee, that default has been made in the pay- ment of the mortgage, so long a.s the goods remain t 1 \ '{ IJ 1 ' 66 INTRODUCTIOX. in the actual possession of the mortgagor (Dumble V. White, 32 U. C. Q. B. 601). In either case a mort- gagee's remedy is under the 125th section of the In- solvent Act (Clarke's Insolvent Acts, 1877, p. 295). 125th section But this section is not to be construed so as to not applicable to strangers, compel a person (not a creditor of the insolvent, nor having anything to do with the distribution of his estate, and who claims the goods in question as his own, and denies that they are, or ever were, the property of the debtor), to apply to the Judge of the County Court for relief, and to debar him from every other remedy. Therefore where the goods of A, having been seized by the Sheriff, under an execution against B, have been handed over by the Sheriff to an assignee, to whom B had made a volun- tary assignment in insolvency, it was held that A might maintain replevin against the assignee, and also that section 50 of the Insolvent Act of 1869 could not apply against the plaintiff who was not a creditor, or in any way interested in the estate of the insolvent (Burke v. j}fcWhh'te); 35 U. C. Q. B. 1). The ordinary remedies at law are still open to p person who.se goods and effects have been wrongfully taken as the property of the debtor or insolvent, and the fact that the goods are in cmtodia legis does not deprive him of his legal redress (Burke y.McWhirter, supra). It was decided in this case even that the remedv by replevin was open to him notwithstanding Con. Stat. U. C. cap. 29, s. 2. This latter Statute has since been repealed by 40 Vic. cap. 7, sched. A, 92 (see Revd. Stat. Ont., cap. 53, s. 3), and the substituted section may not admit of the same construction as the one repealed (see the full judgment of Gwynne, J., in Jamiesun v. Kerr, 6 Prac. Rep. 3). I.VTnODUCTION. Prior to tlio provision in tho Insolvent Act (whore- by "all remedies sought or demanded for enforcinff any claun for a debt, privilege, mortgage, hypothec hen or nght of property, upon, in or to any effects or property in the hands, possession, or custody of the assignee, might be obtained by the onler of the Judge on summary petition, and not by any suit") a creditor who had a mortgage could enforce his remedy without regard to the Insolvent Law as he was not obliged to rank on the' estate unless he chose to do so {Gordon v. Rosh, 11 Grant. 124). The effect of this provision in the Insolvent Act now is to compel all creditors who have proved, or. who can prove on the estate, although they have not made themselves parties to the insolvency, to enforce their rights by way of summary petition, but. notwith- standing this, a mortgagee is not deprived of his re- medy by way of foreclosure. Henderson v. Kerr. But this provision cannot exempt the assignee A.i,n.ee .tm i om respons. dity for an illegal act; and. "a mort- liSt^ ^'agee of goods who is entitled to the immediate possession of them may bring an action of trespa< . against the assignee for a wrongful taking of them and he is not obliged to apply to a Judge on sum- mary petition as provided by the above section" U C Q. B. 30)''''' '''^' ""'"'"'"'^ "• ^'^'^"^^ ^" calfTT.' '"' T'^'^'' " ^" P^^«-«-»' he When. OH. cannot have the goods taken from him (if he is law- ST ^'"" fully m possession), unless on payment of his claim or ou an adjudication of his rights under the Insol- vent Act {Dumhle V. White, 32 U. C. Q. B. 601). A Sheriff has no rif^ht ei'^hp" no re-.v-=o«<.- /, , iio-it,ei„iie, as representing an attach- 67 •m When In»«il vj-nt Act applieH. ^'^ INTRODUCTION. ing creditor or an assignee, to deprive a mortgage*' of the possession of the goods, without first satis- fying the amount of the lien {fer Harrison, C.J,, Pateraon v. Maughan, 39 U. C. Q. B. 371), and if he does so he will bo liable for the full amount of the mortgagee's interest therein (Pariah v. Wheeler, 22 N. Y. 494 ; Mannimj v. Monnahan, 1 Bosw. 459). " In every case in which the Insolvent Cou.t can work out all the rights and remedies of pereon.s having claims against the estate, the Court may, and therefore it is bound to work out complete justict; between the parties; but, beyond this, the Insolvent Court cannot go, and cases not brought within this rule are outside the jurisdiction of such Court" {per MortKa^ee (if Blake, V. C, Hendevson v. KeiT, 22 Gr. 92). We titieiiV. f!m . have seen that the mortgagee of chattels, like a c.wure. mortgagee of real estate, is entitled to a foreclo- sure in default of payment of the amount secured thereby (Cook v. Flood, 5 Or. 463 ; Slade v. Rigi/, 3 Hare, 35 ; Wayne v. ITanham, 9 Hare, 02). When default has once taken place in the payment of the mortgage, the mortgagee thereupon becomes the OAvner of the mortgaged property, subject to the rights of the assignee (if the mortgagor has become insolvent since the execution of the mortgage) to exercise his equity of redeeming. A mortgagee, filing his bill for foreclosure, does not then " come as a creditor and ask for payment out of the assets of the estate, but he asks that, within a specified time, the defendant shall avail himself of the equity which allows him to redeem, and that, in default, it shall be barred;" and it is because the Insolvent Court has no machinery for calling in claimants ; for service out of the jurisdiction ; and for working out all the INTIIODUCTION. Wetails „f a f..roclosure suit, that the jinisdiction of the Court of Chancery to decree foreclosure upou a •"ortgage is not tak.n away by the Insolvent Act- un.l a mortgagee nn.st still procoo.l in the Court of Chancery to obtain relief by fon-elosure against the oftml assignee of the i..ortgagor(//c.,J.m,H v. A'^.r. If an insolvent mortgagor obtain his tif)n. When payable on demand. 70 INTRODUCTION. EflFectof punc- tual payment, ■ f cfef Kight to redeem. in such case may commence legal proceedings with- out previous demand, the commencement of pro- ceedings being a sufticient demand [Gillet v.Balcom, 6 Barb. 370). If the mortgage-money and interest are punctu- ando'f cfefault: ally paid then the property revests in the mortgagor, freed and absolutely discharged from the mortgage encumbrance ; but, if default be made by the mort- gagor, immediately thereupon the mortgagee has the right to actual possession and control of the mortgaged property. The mortgagor still, however, has a remedy left; viz., the equity of redemption. At Common Law, under the ancient system of • mortgaging, the right to redeem did not exist ; but Courts of Equity, looking at the intention of the parties, have established the i-ight, and Courts of Law have adopted it. The equity of redemption is the right which the mortgagor has of redeeming his property after it has been forfeited at law for non-i)ayment of the mort- gage debt at the time stipulated in the Mortgage, and the right will only be gianted on payment of the whole debt, and, if they are incurred, costs also. The right to redeem exists so long as the mortgagee has possession and until, by legal sale of the goods, or foreclosure, he cuts off the equity of redemption, or the right to redeem has become barred by the Statute of Limitations. If the mortgagee sells and the Mortgage pro- ^ro «r''saf^.""' ^^^^^^ ^'^^ manner in which the goods may be sold upon default, then, to get rid of the right to redeem, the mortgagee must have followed the mode of sell- ing pointed out by the Mortgage. If notice has to be given before sale, and no notice is given, or the Equity of re- demption, what it is. Redemption not eitm INTRODUCTION. 71 >tion. sale is not fair and bonafitU, the mortgagor's equity to redeem is not thereby extinguished Foreclosure is in default of redemption: where i-VeCosure, the right to foreclose exists, the right to redeem JeWi"' °^ exists also. The mortgagee and mortgagor occupy the relative position of creditor and debtor; the creditor being secured by the debtor, through means of a hen. Any holder of a subsequent lien may therefore, pay off a prior lien to prevent liis own lien from being cut off As a mortgagee of chattels, hke a mortgagee of real estate, is entitled to a fore- closure, so a mortgagor of chattels, like a inort..a Car. 2, cap, S), which enacts that "no writ of execution shall bind the goods of the party against whom such writ of execution is sued fortii, but from the time that such writ shall be delivered to the Sheriff, Under-Sheriff or Coroners, to be exe- cuted" (Beaumont on Bills of Sale, i)2). A creditor then, by force of this Statute, will be preferred to a mortgagee or bargainee of a debtor's goods, if against such goods the creditor has delivered to the Sheriff for execution a writ o{ fi. fa. anterior to the execu- tion of the instrument under which the mortga<'ce or bargainee claims. It will be observed that the Avords of the Statute are "delivered to the Sheriff for execution." Hence it is that if a writ of ji. fa. is delivei'ed to a Sheriff with instructions not to levy, or it be otherwise coimtermanded, it is not a writ " delivered to the Sheriff for execution" upon which he can act, and therefore it loses its priority (Pai/,: ^ v. Dreive.i East, 523; J,n)c.« v. Athcrton. 7 Taunt. 5U; Samuel v. Duh et a^., G Dowl. P. C. 530 ; J J ant v. Hooper et al, 1 D. & L. G2G; Hoivard v. Cautry, 2 D. & L. 115; Foster v. Smith, 13 U. C. Q. B. 24.3; CaMh v. Ruttan, When !v writ delivered to Sheriff Iobi's its priority. INTltODUCTION. 4 U. C. C. P. 252 ; Kerwan v. Jennings, 3 Ir. C.L R 48 ; Strange v. Jarvis, G 0. S. IGO ; IteFair v. Baest 2 U. a L. J., N.S., 210). At a subsoquont pa-^o it is sl.own by a,„tl,ori- Fr«,ti„„of ties that tlio Courts will c«,.isi.l,,r a fraction of a day '^*y^"""'''«'- when the justice of the ca.iso rc.iuiros tliein to do so (Beekman y. Jarvi., 3 U. C. Q. li. 280). Hence it is advisable in anticipation of a possible conHiot be- twecn an execution credito)- and a mortgagee, that the conveyancer should always note the day and hour of the execution of the instnunent, as the Hhenft- does tlie recipt of the execution. Of course the carrftd pmctUloner never fails to exann-ne the Sheriff's Office for encumbrances against the pro- pcrty mortgaged or to be morfcgage.l; but, it is as well, always to take the extra precaution of notin- the day and hour of the execution of the instru"- inent. It is from the execution of the instrument, not from its date, that the Mortgage or Bill of Sale, as the case may b,., relates ane goods of a debtor only from actual seizure As *'"", ''""1* between Division Court executions, therefore, and '" "' ■mortgagees or bargainees of goods, priority is deter- ■inned differently than it is between the latter and .Superior or County Court execution ceditoi-s, But should the goods mortgaged happen to be in the custody of the law, then probably they would be 7S 74 INTRODUCTION. Goodo, in cuatodia Ugii. Rights of creditors. R. S. 0.,cap, 6C, a. 27. nights of Mortgagee. bound from the delivery of the execution to the Division Court Bailiff; because when goods are already in custodta ley is, a writ of/, fa. binds upon them at once without any actual seizure. The writ in such oases attaches upon the goods, as if there had been a seizure (Beekman v. Jarvis, 3 U. C. Q. B. 280). Prior to default and foreclosure or sale, creditors of the mortgagor have rights which will be protects] both at law and in equity. The Con. Stat. U. ( '. cap. 45 (sec. 13) made provision for the sale under any writ, precept, or warrant of execution, by the Sheriff or other officer to whom such writ, warrant, or precept was directed, of the interest of a mort- gagor or of his equity of redemption. In the con- solidation of this Statute, by the Eevised Statutes of Ontario, cap. 119, this section (13) was omitted, but inserted, as section 27 in cap. 60 of the Rcviseti Statutes of Ontario as follows : " On any writ, precept, or waiTant of execution against goods and chattels, tlie Sheriff or other officer to whom the same is directed niiiy seize and sell the interest or equity of redemption in any goods or chattels, in- cluding leasehold interests in any lands, of the party again;.t whom the writ has issued, and such sale shall convey whatever interest the mortgagor had in such goods and chattels at the time of the seizure." Whilst, however. Courts will consider the interest of a creditor, they will also protect the rights of a mortgagee, and, if property is taken from the pos- session of a debtor, by an execution creditor, the mortgagee may, if his Mortgage so provide (and the ordinary form of Mortgage usually does so pro- ' M INTRODUCTION. Vide) recover possession of the property mortgaged The mortgagee has such a special ownership in the property, as to give him the right to recover it for the purpose of satisfying his claim Whatever interest the mortgagor has in goods, I„tor.t oU thatmterest can be sold and the Revd. Stat. Ont.. Sfi^ 23Gr.oo2). The purchaser will be placed in the position of the mortgagor, and in the opinion of Burns, J., the Shenlf has the right to seize goods in the possession of the mortgagee, so that he may expose them to view, in order to sell the equity of redeu^t,o. That was the effect, ho considlrecUf Con. Mat U. C cap. 45, s. 13 (Smith v. Cobo^crJ & Peter oro'Ji,w. Co., 8 FracK US). But the 1- terest of a mortgagee in goods mortgaged was not, -t was held, such an interest as could be sold under a>./a. (Ferrte v. Cleghoryi, 19 U. C. Q. B 241) be cause his claim was a mere chose in action (P.^i v^ Roat m Ma.s. 410; Thornton v. Wood, 42 Me. 282). But see Revd. Stat. Ont., cap. 6G, s. 28, Rev stat o whereby It IS provided that a Sheriff, actin. upon -p-^ ^^l' a writ issued out of the Superior or County Court may seize any mortgages, or other securities fo; money belonging to the person against whom the writ of Jieri facias was issued. The moment any of the covenants or conditions Wh • u. are broken or violated through the instrumltn y [ P-^ of an execution creditor, then the rights of the mort- gagee accrue to him. The right of property may by the terms of the instrument (when the redem se' e-ause IS omitted), be possessed by the mortgagee pnor to default or violation of the terms of C ■nstmrneat; and after default, or breach of the con- 76 76 INTnODUCTlON. dition.s, tho right to possession at once arises, so tliat in either of these events trespass can be maintained AKiviuRt wliom a;:,'ainHt an ofHcor soizinL' and scllinij luider a fi. fa inaintftinoa. (Porfcv V. Flivloft, (> U. C. V. V. S.So), and a mort- gagee may nlso luiiintain an action for damage to liis reversiuniiry interest against a porson selling mort- gaged property, when the right of imssession is in the mortgagor and the reversionary interest in liini- self {McLvod V. Mercer, (i U. C. C. P. 107; Cwoijtm v. GUmore, 47 Me. 9). The action may he had also ugahist the execution creditor, if he has authorizwl, or in any way ratilied and adojjted the action of tliu .Sheritfor other officer seizing ( Watson v. Henderson, 25 U. C. C. P. 502). Ihit a jicrson who indemnifies the Sheriff for seizing goods, does nut hy that act become liable as a trespasser, when there is no other evidence to connect him with the Sheriff's act. A person who executes an indemnity bond, when lu' does nothing and says nothing to shew that he has any interest or desire in the matter, may be assumed to be entirely indifferent whether the Sheriff persists in his seizure or no^ lie neither directs nor pi-ociires the act to be done, and the Sheriff is left perfectly free to act as he thiidvs proper, and, if he (.a h reasonably held to ratify and adopt the act of seizure, wliich is the original trespass, he is not ratifying or adopting anything for his own benefit {McLeod v, Fortune, 1!) U. C. Q. B. 9 U. C. Q B 1 •' Boys V. Smith, 9 U. C. C. P. 27). • • • . The Statute of Elizabeth makes void frau.lulent gifts or conveyances "only as against that person or persons, his or their heirs, successors, administrators and assigns whose actions, kc, ♦ * * » shall, or might bo in anywise disturbed, hindered' delayed or defrauded." it has been elsewhere stated' that such a conveyance as against the party makin.. •t remains valid and etfbctual (see Hobinson v McDonnell, 2 B. & A. lU), and a subsequent vohmtery conveyance wili not be preferre.1 to it (Bmighton v. Jhughfon, 1 Atk. (525 • Allen v ^m..l Vern. .%'5; Claverino r.ClavnL,, 2 Vern. 473). But vvhen the conveyance is obtained from the settlor by fraud, then the property will pass unckT a subsequent voluntary convevance (Younn V. C/o«^cM P. Wins. 102). ^ ^ It was, at one time, doubted if the Statute of Eli;, app hej to any creditors but those who were such tJVT 1o "^^ <^«nveyance (KUne, v. Coussnu.. ^r 12 Ves. 136). But there is no doubt that the Act makes no distinction between creditors; and a fraudulent assignment is void against both subse- quent and existing creditors (Graham v. Furbur These remarks have reference more particularly to -n Assignment or Mortgage not within the Chattel 77 13 Kliiabeth. Existing and »ub8e((uent creditors con- templated bv l.i Eliz. and by Chattel Mortgage Act, 78 INTRODUCTION. Bights of Auiunee in Insolvency. He Andreio, 2 App. Mortgage Act. This latter Statute will have to be read, in relation to instruments within its scope, and section (4) recognizes no distinction between existinij and subso((uent creditors (see post). Both the Statute of Elizabeth and the Chattel Mortgage Act as well as R. S. 0. cap. 118, s. 2, make use of the term creditors ; and though, by merely trusting or giving credit, a person brings him- self within the definition of a creditor, yet, if he wants to attack an instrument as being void under either of these Statutes, he must put himself in a situation to complain by getting a judgment for his debt {per Gwynne, J., McGiverin v. McCnusland, 19 17. C. 0. P. 460; Colman v. Croker, 1 Ves„ jun., ICl ; Porter v. Flintoft, G U. C. C. P.33;J Martyn v. Padger, 5 Burr. 2G31 ; White v. Morris, 11 C. B. 1015, overruling Bcssey v. Wlndkanx, 6 Q.B. 106). It has been decided that an assignee in insolvency represents the creditors for the purpose of avoiding a mortgage, for want ox compliance with the Chattel Mortgage Act {Re Andrew, 2 App. R. 24). The con- tention against this view, is, that the assignee, taking the position of the debtor, so far represents him and him only, that he cannot do that which the debtor himself could not do, and, as a technical defect, or non-compliance with the Act, will avail the debtor nothing, therefore the assignee, representing the debtor, should not be placed in a better position than the debtor himself. The point seems to be involved in considerable doubt, and is now, the writer understands, before the Court of Appeal. The language of Mr. Justice Paterson, therefore, taken from the case of Me, An- drew, 2 App. R. 24, is given in full. INTllODUCTION. He says, Hfc page 29: "But it is contondo.l that the Mortgage, being g„od as hotwocn the parti,.s to It. 18 good against the a.ssignce in insulvonc-y of the mortgagors. The Statute (Con. Stat. U. (! cap 45 sec. 3) declares that in case the Mortgage and affi- davits are not registered as provided, the Mort-a-o shall be absolutely null and void as against creditors of the mortgagor. The argument is that the asshmoe does not represent the creditors for the purpos^e of avoiding the mortgage, but takes only su.h interest in the assets of the in.solvent as the insolvent could himself have asserted. (,^arrying this a step farther towards Its legitimate eonserpiences, it maintains that a tran.saction, which a creditor could successfully im- l.each, becomes impregnable, and excludes the credi- tors as soon as insolvency intervenes. The law is not so defective as to permit this result. Treatin.. of the Statute. 13 Eliz. cap. 5, and of the rights of credi- tors to avoid conveyances under the Statute, the following pas.sage from May on Fraudulent Con- veyances at page 149, states the English doctrine "The representatives of creditors are considered as creditors within the Statute. An assignee, therefore or trustee of an insolvent or bankrupt, althou-h in >ight of the debtor, he only takes such interest as the debtor was beneficially entitled to. Yet he re- presents the creditors also for all purposes; and if any fraud against creditors exists in a transaction to which the insolvent or bankrupt was a party the' assignee or trustee may take advantage of it' A deed, which is void as against creditors, is void also as agamst those who represent creditors. It was mdeed said by Abbott, C.J., in Rohimon v. McDon- nell, 2 B. & Aid. 137-(i, ' The Bill of Sale might be 7J 80 INTIlonUCTION. void under the Statute of Elizabeth as apainst credi- tors, liut not as nj,'ainst tlie jiaities wlio executed it, and tlieir assiffuces are in tiiis respect in no better situation.' Hut it is sidnnitted that tlie assignees are to he looked at in a double character ; not only as representing the bankrupt (one of the parties to the deed), but also as standing in place of and en- titled to exercise all the rights of cr",ditors — (pui, the representatives of the bankrupt tliey can havi; no power to set aside the deed, but qua the repre- sentatives of the creditors they have that power; for. as Lord Loughborough said, in AvdcvHoii v. Malth}/ 2 V'es. 24-l-i!4o, 'assignees have all the e(|uity which th(! cretlitors liave, ami may impeach transactions which the bankrupt himself would be stopped from impeaching,' in fact, assignees have frecpiently bei'ii allowed as creditors under the Statute without (jucs- tion." Whatever tpiestion may have been possible under the Insolvent Act of 18(J4, see. 4, of which sub-section 9 empowered the assignee only to sue for the recovery of debts due to the insolvent, and to take proceedings that the insolvent nnght have taken >vitli respect to the estate, and to intervene and rej)resent the insolvent in all suits and proceed- ings by or against him, was removed by the Act of 1809, sec. 42, which is followed by sec. y9 of the Act of 1875. " Those sections'add to the powers <;xpressly given by the Act of 18G4, the power to sue for the rescinding of agreements, deeds and instruments made in fraud of creditors, and for the recovery back of moneys alleged to have been paid in fraud of creditors, and to take, both in the prosecution and defence of all suits, all the nroceediniis that the creditors might have taken for the benefit of creditors generally. INTUODUCTION. This loaves no footlu,!.! for tl.o argument that umJer our htututo tho assi^n,oo ropr.sor.ts tho insol- vent only.' S..0 also fia-tram v. I'endn, (27 U f aP.:^0)who.-^nM....,..tie.,ra,a,.ty':Ltiono; the point, but loft ,t „n.K3ci,lod (sooalso I'at.r.m v L.Il.4('h.I). ir,(); Doe , Inn. (inm.!>,, y Ball li L.R7H .7). It was tho ,..n....ally roooivod opuuon that tho assignee in insolvency stoo.l «,. fa,. .ntl.pos,t,on of the insolvent as toVool,.,h.hi,n tak.ng tochMu.al ohj.etions to tho instrnn.ent, nn.h.- w. eh ho, o.- the insolvent. olain.e.l; hut that ho is allowe,l. whorove,. there exists fraud to set asi-lo tho transaetion, as a creditor hin.self would ho allowed to do: but the Court of Appeal has, the writer has ascertame.1, docidcl tho law in favour of the iud-r- "K^t of Mr. Justice Paterson. in Re A adrews rsupra) cred to , the cons.dorat.on for the Mortgage is tho etlSC .1 bt and .t remains a debt until discharged or sat- ■shed by payment or sale under tho Mortgage, or by legal process. Tho essonco and object of a Mort^a^o ^s that It shall be a mere security for a debt, andlt .s no ,„ore than a lien on a particular subject for a t .s because a Chattel Mortg.tgo is a mere security "^l!^^ for a debt that .t becomes void (so far as tho ,nort- ^'.IX'-^y gagor « habihty on his covenant is concerned) when the debtor has been released by a discharge in bank- niptcy {Fhomp^on v. Cohen, L. R. 7 Q. B. 527- Cole V. iTemo^, L. R. 7 Q. B. 534). ^-^ > ^ole 6 81 If m INTH0»»>U0TI0N. U.-T. sut ( ', Till" ReviHocl SUitutes of Ontario, cnp. I>a, at m>c, tidii IS, proviilti f«»r lodicMa W\\\\f liall in (liima^'«H by II pmrliaNci i>r inortj^a^foo Hi^ainnt. a Ncllir or niort- Ah tci fitiii.l pifi;oi- of any riuittels, real or iicrsonal, for fraud'. oil iiiirt <'f I , 111- II 1 M..rtKiiK»i. 'i'»t c'onc'enlin»>nt of any deoUs or encuinnranco, . ?■■ ,)lgage. When a mortgagee has possession, ;\v..' *'^lls under ' lio power of sale ordinarily cop- MortyuK" iNTiionrcTioN. tain...i i,. MurtKHKOH. tl..,, tl.o cre.litorM pronor rcmcly t., rocov...- th. Lalanco in tlu, J.an.ls of tl.o ...ortK.^.... i„ l.y ^jarnislu.. ^n■ncvss n^r^m^t tho mort- gagoe (Pde v. r„lvn,, (^ III. 227). liut thoud. tl.o m..rtgnKo.l projMW.y ..|i f,.,- .....ro tl.n„ „„oud. to pay tl.o ^!.,.t,ra^„. ,|,u. intcrc-st a.ui roHts, if tl.o property .s .xon.pt tl.on tho n..„.tKa,.,r is ctitlo-l t. ,,«...„ t .« H„r,.lu,s an.I „„t tl.o en-ditors Ka.nisl.i,,. (Mi, -<'"'tr. clue V. 7e.v/«W./.w, 24 IJ. C. Q. B. ;J0.'J). SuppoHoa m t .nort^ra^au, fin.ls that f..,n. Hc.n.o oaUMo Lis M.l.L... '-'^'ft"-- iH inv,tlid as against ...niitors. can I,,., l.y takin. pot- '-'^i Mo.t QDUuilktt 1ltkect of the mortgagor's interest as well as his own, if the insurers at the time of the insurance were notified that it was for the Co. INTRODUCTION. joint benent of the mortgagor and mortgagee {Og« tertii H., can ,lef..n.l his possession, ,us a-ainst the mort-a-or, by shewinfr. that the mortgagor has no property, or ri-^it of possession, because sucl, rights are veste.l in third parties-subsecp.cnt mortgagees-for instance. But the case would be different, if the .nortgagor hiniself w.Te m possession, and the administrator asserts a ri-ht un.lei- the mortgage to his intestate, and tc 'tea the goods, for which the mortgagor sues hi,n, the iulmmisti-ator then would not be permitted to sot up tliejtts tertii (Muttan v. Bmviish, 10 U. C. C. P !)0 • Lmke v. Loveda;j, 4 M. & G. 972 ; Thome v. Tilbwru .'5 H. & N. 534). '^' We have seen that the mortgagee on breach of con- On dofauit. .iitmn, or default in payment of the principal and maylTr! Hiterest, if so authorized by the instrument, may enter and take possession for the purpose of satisfy- ing the mortgage debt. By reason of the breach a forfeiture occurs, and all the remedies provided by the instrument accrue to the mortgagee. Courts do not, however, favour forfeitures, and will relieve against them whenever possible. Should the mort- gage be payable in instalments, and a forfeiture arises by reason of default in payment of the first Court will . In r'Tb ' ""T "'" 1"^ P-ceedings entered |Sr' ' upon by the mortgagee, and relieve against •;he for- feiture, on payment of the moneys then due upon the mortgage and costs. n U4 Korft'itiiiB luoy bewttiveil Aisignee of Mortgage en- titled to same reint'dieH. Surety, also. Entitled to position of Creditor. Remedy under Power of Sale. INTUonUCTIOX. A forfoituro imdor the mortgage may bo waived l>y the mortgagee, and very sliglit acts on hi.s part will be construed ))y Courts of Equity a-s a waivw of forfeiture. A demand of payment made by the mortgagci; may liave the effect of waiving lii.s rights conso- ([tient upon some breach of condition in a mortsafe But when default happens, or a breach of condition occurs, and the mortgagee does nothing to operate as a waiver, and deter liim from exercising his rights, he may maintain replevin, or bring trover, or detinue, or sue upon his covenants, or ho may exer- cise his remedies by power of sale, or lie may fore- close. He may take ])ossession of the property mortgaged, and so long as tlie right to redeem cxi.sts, he may, notwithstanding his posse.ssion, sue and re- cover on the covenant contained in the mortgage. AH tliese remedies may be enjoyed bj' an assignee of a mortixajfe. A surety also, when compelled to pay the debt to the creditor, will be entitled to the benefit of all the securities in the hanils of the creditor ; and if, besides the security of the surety, the creditor holds a chattel mortgage upon the debtor's effects, the surety upon payment by him, is entitled to be placed in the same position towards the debtor as the credi- tor was in. But if the surety take a new mortgage to secure him in the payment of the money paid by him, he will then be taken to have waived all his rights under the first mortgage to the original credi- tor. If the mortgagee, his assignee, or the surety pro- ceed to enforce the mortgage security, they may, as we have seen, adopt the remedy under the power of 9j?. •c- INTRODUCTION. sale, and, in practice, recomvso is generally had in this way, to realize the moneys secured l.y the mort- gage. And, if a mortgagor stand silently by at tlio .ale and acquiesce therein, he will not be permitted .Mon..«or , ^terwanls to set up a title as against the purchaser Ulir''''^ '" He will be estopped fron. clain.ing that the mort-nw^e ' ' w void or that it has been paid. ° " . In the event of the mortgage being assigned, the Re.iHt,.ation >>tatute now provides for the registration of f h^ 1 ^S^''^'"'"" i-tru.nent of assignment. The Statrdoel n^ ^^*^"^- However make registration of the instrument com- pulsory (see Rev-d ,Stat.Ont. cap. 1, s. 8, subs 2) ex- cept when it becomes necessary to renew a mortgage undersee. 10 of the Chattel Mortgage Act; then, by see. 11, the assignment must be registered. It is l-owover always advisable to register the assi,.^.„,ent as .speedily as poss.ble, because registrat:on is notice to the mortgagor ,iV. Y. Life v. Smith, 2 Barb. Ch. «2- Reed V Markle, 10 Paige, 409). If registration is' onutted, then the Assignee should give notice to the ^uortgagor of the assignn.ent, and thus prevent him- self being prejudiced by any further dealings be- tween the mortgagee and mortgagor in regard to the mortgage. A still better plan to adopt is to make he mortgagor a party to, and have him exe- cute the assignment as a consenting party thereto. Ihe Chattel Mortgage Act specially protects pur- p , chasers ; and registration, or delivery and change of ^^' possession, is necessary i„ order to validate mort- ''' gages as to subsequent purchasera. And. even though a purchaser has notice of an encumbrance on chat- els, he may purchase them, and will be protected in 18 purchase, if it be in good faith, and the incum- brance be not registered, or there has notice of e. been no change M'" 90 PnrchnnerH in "goixl foilli." Purchaser Bill) ject to Mort- gage bound thtreliy. Purchane valid upon yerbal asHent of the Mort- gagee. LapBe of tinie protects pur- chaser. INTRODUCTION. of poHHesion (TrttvU v. Bishop, 13 Mot. 304 ; Sfiarp. hhjh V. Wcnto'orth, 13 Mot, 3.-)«). It will bo obsoivod that tlio .statuto (Hoviaod Stat. Ont. cap. 119) montions tho piircliasorH whom it it will protect, a.s purcha,ser.s in good faith ; lience it is tliat wlieio a purchase is inado, with intent to defraud the niortj^aijoe the ptirchaso transaction as to to tho niort{.;ageo will lie void {Fuller v. Paifje, '>{', 111. 358), even thouj^h the statutory fornialitie.s have been neglected by tho mortgagee. When a mortgagor .sells property, subject to an encumbrance by way of mortgage, and the pur- f.haser buys .subject thereto, the latter canmit aftor- wards object to the Mortgage. If it is valid between the parties to it, it is good a.s against such a j>ur- chaser, ana he will not bo permitted afterwards to avail himself of objections, good only at the in.stance of creditors, subsecpient purchasers, and mortga- gees in good faith (Patten v. ^foore, 32 N. H. 382: Sanger v. Eastwood, 10 Wend, 51.5; Leivi.n v. Pal- mer, 28 N. Y. 271 ; and cases cited at p. 370 Her- man on Mtges), We have seen (ante) that though the instrument ])rovides that no .sale shall be valid without the written consent of tho mortgagee, yet a verbal as- sent will estop the mortgagee from objecting to sale. A purchaser, therefore, may establish his title, a.s against a mortgagee, to such property as he buy,s, by proving a verbal license from the mortgagee to the mortgagor to sell, although the mortgage con- tains a provision prohibiting a sale without the writ- ten assent of the mortgagee (Herman on Mtgcs, pp. 374, 375), and lapse of time may be sufficient to !)7 INTIIODUCTION. protoct a pureliasor's title, ,w whoro a luort^ajroo a«|..k'sces in a sah. Uy u niort«a;,ror (Honaaii^on Mtges, p. 375). A cl.attol mort-a-.. vali.l l.t-twoon the parties will Vaiia M.-pt- also bo binding „pon pu,cl,a,s(,r,s at an execution- fS'-K'S" .ale.wh.M. tlio property is ,soM by the ottictM- subject "1^°^^" to the Mort^ra^re. If th(! torni.s of the .sale arc that m '^f' '" the sale is subject to a Mortga-e, and th- i,..rehaser biiys upon those terms, he caiuiot afterwards ,leny tho validity of the Mortgage; but this will not fntail upon him a personal responsibility for the .Icht secured by th.« M.n-t-a.i.e subjoet to which the Hiiie took place {I'ortcr v. Pitrinh-jj, ;)2 N. V. 18.') • llam'dl V. d'iUcspic, 48 N. V, .").>6). A purchaser at an execution-sale, has all the rights of an execution creditor, and while the latter (•an impeach the Mortfrayo, the former may also, so !-ng as the terms of the sale were not sucli as to bar tlie purchaser from his right (Ilernuin on Mt.'es p. 378). The last requisite to the validity and completion "Delivery" of a Bill of Sale or Chattel Mortgage is its delivery, preparatory, of course, to filing it in compliance with' the statute. Delivery and acceptance alone, without more, will be sufficient as between the parties to the in.stru- raent, but, as against creditors, subsequent purchasers and mortgagees in good faith, a still further requisite 13 necessary, namely, a prop.n- registration un.ler the Statute; and before that can be had, the affidavit of execution and of bona fides must be made. It i: from the .lelivery, however, that the instru- i„«trume.t nient takes effect, even as against the persons pro- d'eTiver"" ^'"""' •'I 98 INTRODUCTION. Execution, in what it consists. As to date. tecfced by the Statute ; the Statute enacting that, when registered, instruments shall relate back, and have effect from and after the day and time of exe- cution thereof. Execution consists of the "signing," "sealing" and "delivery," by the parties, as their own acts in the presence of witnesses (Whart.Law Lex.). "Delivery" is the last essential to execution, therefore it is from delivery that the instrument takes effect. Without delivery an instrument will pass no title to a mort- gagee, either as against the mortgagor, or third par- ties; and with delivery but without registration, title will pass to a mortgagee as against the moit gagor, but not so as to exclude the rights acquired by third parties. In order to complete delivery, acceptance by a mortgagee or bargainee is necessary. When there is a date to the instrument, the pre- sumption is," that delivery was upon that date ; but, because a deed is good, though it mentions no date, or has a false or impossible date, this presump- tion can be rebutted, and the parties are at liberty to show the true time of delivery (2 Bla. Com,: Biirdett v. Hui}t, 25 Me. 419 ; Partridge v. Siuazey, 46 Me. 414). The expression "Delivery" is not to be taken in its popular sense as meaning a manual delivery, for the instrument may be completely exe- cuted, and yet not handed to the mortgagee; but there must be some act on the part of both parties to the instrument, which in legal contemplation will be equivalent to manual delivery. Disputes may arise on the point of delivery between a mortgagor and mortgagee as to whether or not there wa." INTRODUCTION. "delivery/- b.^, under the Statute, an affidavit of Ixymms, both in tho case of a Mortgage and Sale .ust be made ; and this being so, the^niatter would hen be less a question as to whether there was a dehvery han a question as to when it took place as settling the n.o.„ent of time, from which the instru- ment came mto force as against the persons intended to be protected by the Statute. 99 ' |Bl REVISED STATUTES OF ONTARIO, CAR OXIX. iv isr ^ c T RESPECTING MORTGAGES AND SALES OF PEKSOKAL PKOPERTY. Mortgages of goods not attenilod with change of poaaeH- Rion shall he regiattreil, or elae be void as iigainst cred- itors, &c. , of the mortga- gor, with an affidavit, &c. Aiiidavit by agent. ~| TER MAJESTY, by and with the advice and constni -' — *- of the Legislative Agsembly of the Province of On- tario, enacts as follows : — KKGISTRATION OK CHATTEL MOUTGAGKS AND SAl.KS OF GOODS, WHERE POSSESSION IS UNCHANOEO. 1. " Every Mortgage (u) or conveyance iuteiided to oper- ate as a Mortgage ('<) of goods and chattels (c) made in On- tario ((/), which is not accompanied by an immediate delivery, ' and an actual and continued change of possession of the tilings mortgaged (c), or a true copy thereof (/), shall, within iivu days from the execution thereof (g) be registered as here- inafter provided, together with the affidavit of a witness thereto, of the due execution of such Mortgage or convey- ance (/i), or of the duo execution of the Mortgage or con\i.'y- ance of which the copy tiled purports to be a copy (j), lunl also with the affidavit of the mortgagee, or of one of scviritl mortgagees (fc), or of the agent of the mortgagee or mortgn- geea, if such agent is aware of all the circumstances connected therewith, and is properly authorized in writing to take such IMortgage (in which case a copy of such authority shall be registered therewith)" (0- C. S. U. C. c. 46, s. I ; 40 V. c. 7i Schu. A, (134). MORTGAGES AND SALES. JO] (<«) A Chattel Mortgage i,s a written instrument, executed bv ..ne party, who is called the mortgagor, to another party, who is called the mortgagee. Without a consideration there cannot be a Mortgage: the very essence of a Mortgage is, that there shall be a debt, the security for which is the Mortgage. As between the parties themselves it may be a verbal Mortga<.e ; but to secure its validity, as to third persons, it must be in writing. It IS the creation of at, interest in property, defeasible or liable to be annulled upon the payment of money, or the fulfibnent of a certain condition, or the performance of some act; but should the money not be paid, or tlie condition not be fulfilled or the act not be performed, then from the moment of default, the interest of the mortgagee, becomes absolute at law in the pro- perty mortgaged, and remains vested in him {Sands v. Standard Im. Co., 2G Gr. 110), "It is a security founded on the Common Law, and perfected by a judicious and wise application of the principles of redemption of the Civil Law" (Ooote Mort). "The d.bt is the principal, and the Mortgage the incident'' {Jackson V. WiUard, 4 Johns. 4). " It is not only a lien for a debt, but a transfer of the property itself, as a security for the debt {Comml V. At. Ins. Co., 1 Pet. 380), defeasible by the per- formanceof the condition according to its legal effect" {J'JrskhP V. Townscnd, 2 Mass. 49')). The distinction between a Mortgage and a pledge enables one to comprehen.l more easily what is within the former deH- nition. By a pledge, the pawnee has but a special property in the goods, the right to detain them for his security, the 'right to withhold them, until payment of a certain sum by express stipulation; but his interest in the property never becomes absolute and indefeasible (see ante, page 5). (6) Under the words, " Every Mortgage or conveyance in- ended to operate as a Mortgage," are included all assignments transfers, declarations of trust without transfer, and assurances ■If 102 MORTOAGES AND SALES. of goods and chattels existing, as growing crops, or non-existing, as crops to be thereafter planted, {Mcllharrpj v. Martin — C. C, Dean J.,) leases, with conditions giving the lessor a lien on the tenant's property as security for tlie rent (Jachonv.Gircv, 4 Johns. 18G ; Polnnu.^ v. Tralnor, 30 Cal. 085 ; John- son V. Crofoot, 53 Barb. 574). Written agreements, jiro- perly executed, stii)ulating that the amount due for rent of land should be paid before the crops are removed, aro Mortgages of the cro))s (Weed v. Stanley, 12 Fla. 166), and all powers of attorney, authorities, or licenses to take posses- sion of goods and chattels, as security for the payment of a debt, in mone}- or .some other connnodity (Beecher v. Atistiv, 21 U. C, C. P. 334), or for the performance of a condition (Add on Contracts, p. 818 ; Morton v. Woods, L. R. 3 Q. B. 658; 4 Q.K. (Ex Ch.) 2!)3, 307; Stephenson \. Rke, 24 U. CC. P. 250) an> Mo) gages also. But a Mortgage of a vessel, registered under the provisions of any Act in that behalf (sec. 25, post), is not within the Act; nor is a Mortgage of a ves.sel with all her apparel, furni- ture, &c., as part of the vessel (Patton v. Foy, 9 U. C. C. P. 512) ; nor is the ordinary rent receipt of a piano with right of purchase (Steoensonv. Bice, 24 U. C. C. P. 245 ; ex parte Graxvcour, In re Robertson, L. R. 9 Ch., D. 419); because at no time does the property ever pass to, or vest in the lessees, or pass from the lessora ; nor is a building agree- ment, in which is a provision that all n)aterials brought upon the ground .should be considered as attached to the premises, and not removable without the landloid's assent, and that he might enter and take possession of the ma- terial on ceitain default (Broicn v. Bateman, L. R. 2 C. P. 272 ; 15 W. R. 350 ; Blah v. Izard, 16 W. R. 108). A Mortgage of what jmsses by a grant of the land need not lie registered (Kx parte Belcher,4i D. & Ch. 703 ; Ex parte Reyval, 2 M. D. & D. 443 ; Hutchinson v. Kay, 23 Beav. 413); but an agreement for giving a future Mortgage, oi' a covenant for «, MORTOAGES AND SALKS. 103 right to take possession of chattels on a proscribed default or contingency, may be defeated, as against creditors for non- cornphanco with the Act. An executory contract (as when n vendor agrees to inani.facturc and deliver certain timber to a vendee, or a tradesman agrees to make up articles for a cus- tomer) IS not within the Chattel Mortgage Act (Robertson V. ^-^ckl^rd, 28 U.O. Q. B.. 221; Mlddlehrook v. Thompson n» U. C. R. 311 ; Bank of U. C. v. KUlaly, 21 U. C. Q. B. 1). ' To be witliin the first and second sections of the Act, the Mort- gage must be given to secure an existing debt; the Legisla- ture contemplating that, at the date of the transaction, there should be a bona fi,U existing debt {Becker y. Austin 21 IT, C. C. P. 334 ; Middlebvook v. Thompson, svpm) The owner of land, upon which there are fixtures, such as nmchinery in a mill, has tlieundoubtc.l right to sever the chat- tels from the realty, and therefore a Chattel Mortga-^e by such a person upon the fixtures, is within the operation of the Act {Rose V. Hope, 22 U. C. C. P. 482; Dewar v. Mallory, 20 Gr. An instrument, in the fori of an absolute Bill of Sale is within the section of tlie Act, if it appears that the intention of the instrument was to secure a debt {McMattin v McDoucjall, 10 U. C. Q. B. 399) ; and evidence can be gone into to show what the intention was, but the proof should be clear and convincing {Dabney v. Qreen., 4 H. h N. 101 ; Herrtian on Mtgs. p. 48, ca.ses there cited). Should an instrument be of such a nature that the afiidavit required by the Act, for the purpose of registration, could not be properly made, or legally received, then the statute does not apply, for it would be mani- festly contrary to reason to hold a Mortgage void for want of registration, when to comply with the Act, the mortgagee would require to do an impossibility {Lex nan cogit ad im- possibllia). :ktl t. 104 MORTOAOES AN1> SALES. Ordinarily, iMortgaots, under tlie Act, are given by, an i taken to, tlie parties immediately interested in the transaction, by the debtor himself to the creditor himself ; still any one who is personally responsible to others for the money he ad- vances, may legally tak'> a Mortgage by way of security for it in his own name. An agent or trustee advancing a principal- money, even for the purpose of the hitter's business, can be a mortgagee, so long jvs he is personally respcnisible to his princi- pal for the money he advances (WItitc v. Brown, 12 U. C. Q. B. 477). The fact that the debt is not due to the mortgagee him- self does not prevent the Mortgage from being registered undtr the Stivtute. A treasurer of a mutual insurance company may take a Mortgage to himself under th(! Act as mortgagee for a debt due to the company; but the more obvious and proper course would be to take the Mortgage direct to the company oi corporation, for they have power to take it {Brodk v. RuUan, 16 U. C. Q. B. 207). Such treasurer, as mortgagee, may main- tain an action against a wrongdoer for taking the goods mort- gaged, although, fts a fact, iie has no beneficial interest in them whatever ; and so can any other mortgagee who is not the bene- ficial holder of the mortgage, but has it simply in trust for others; provided the transaction be not invalid on any ground of public policy or otherwise. When taken directly to the company, someperson, of course, is instrumental in its being done ; and if this person be the president or other principal ofhcer of the in- stitution, he exercises the corporate powers of the institution in the only way in which they can be exercised ; he does not act as an agent, and so the affidavit of bona fides is sufficiently made by him, without the authority in writing, necessary under the Act in the ordinary case of an agent. He acts directl\ and in chief and not by delegation. " The metaphysical body never can in fact act ; but as, in contemplation of law, it does act, its functions must be performed througli the instrument- MORTOAQES AND SALES. J05 alities of otlier., but such others are no n.ore agents in the proper acceptation of the term than the a.nanuensis who ■■vntes the name of another in his p,,sence. and at his request, or who takes hold of the hand and guides the n.ovcnent of the .narksman ,s an agent." "In both these cases the principals are acting, for then.selves. but through the co-oporatioT so.e one el.se actually present, and so it n.ay be .sll. thaUl! rres.dent, or other principal officer of a corporation, acts in like manner for the body corporate, which he represents" (Brod^ at ons, 57. Bank of Toronto v. McDo,u,all, 15 U.C.C. P 475 ; ', • , r'r ^^ '' «''»'Petent to a joint stock company estab- lished for trad.ng purposes, to give a Mortgage as .s curity or i ■■AS ■ Deffdl V. White, L. R. 2 P Ui^ ti,„ n , Act) tl,r„„gh, and ,„ the name „f, tl.c !,»,! of tl,„ Dop.,rta,°„ to wn,ch the debt b due (M.Gee v. S,«,/, i, U. C pTs) and bank, ,„ay lake, hold, and dispose of Mortgages upon Z-- traoted to^the bank, ■„ the course of its business (34 Vie. eap, ■fhore is no necessity for a Chattel Mortgage to be under cspect, that the latter can be transferred without deed the «.m.c,. on^. by deed (/>.«.„„„ v. ./„„,,„„, gr, p ^, ^g " 98, P; S,„ite,. V. Mead. 5 Mid, io?'. « f "".?"! '"''• Met, 24*; Oe,-„j V. Wi,.,47 Me 5oI) ' " ' ' XZs»i:;:rt '::;;.-"'"=: -f"'- -* "o-o.-^ uic;y must be read m conjunction with the sub- ■*l«„t word "deiivery and the subsequent wor.,s ■■ po.!." 'n M . 1 ''I ,1 );i lOtJ roUTGAGKS AND SALES. of the thing inortgageil." This being done, it will then become apparent, that the Statute applies to Mortgages of goods and chattels in the restricted sense of movable goods, and not tu Mortgages of terms for years in real estate {Frazev v. Lazier, <) U. C. Q. B. ()79 ; Harrison v.Blnckhu ni, 17 C. B. N. S. 678 ; 34 L.J.C.P.109; lOJur. N.S. 1131; 13W.R.135; UL.T.N.S, 453). If no consideration were paid to the terms "delivery,' " possession," Szc, then there could be no doubt, but that a lease or rent for a term of years, being a chattel real, would be within the meaning of the Act (Whart. Law Diet.) unless it could be argued that the conjunction "and" imparted to the words "goods and chattels" but one meaning, that of things personal, as distinguished from things real But have these words, now under discussion, the effect of so far restricting the meaning df the teiiu "chattel" as to render it no more comprehensive than the word "goods"!' A chattel, in the legal acceptation of tlu' word, includes goods movable and immovable, and has been constiiied to embi-ace debts, bills, bonds, policies of insurance, siiarcs in joint stock companies, things corporeal as well an things incorporeal (Hornbfower v. Pnmd, 2 B. & Aid. 327^ Whart. Law Diet.) ; in a word every species of property which is not real estate or a freehold (Burrit Co. Litt. 118, b): whilst the word "goods" is shewn to be far less comprehen- sive in its operation {Humbler v. Mitchell, 11 A. & E. 205; Hesseltine v. Slggers, 1 Exch. 861 ; Temiw.st v. Kilner, 3 C. B. 249 ; Bowlbi/ v. Bell, 3 C. B. 284 ; Bradley v. Holds- worth, 3 M. & W. 422; Duncroft v. Albrecht, 12 Sim. 189; Watson V. Spratley, 10 Exch. 222, and 24 L. J. Ex. 53 ; Powell v. Jessop, 18 C. B. 336 ; Lawter v. Griffin, 40 Ind. 593) being limited to what is movable personal property, to things which are tangible and visible, and have a local situation (Worcester's Diet.; Heivitt v. Corbett, 15 U. C. Q. B. 39). Whatsoever is capable of delivery, of being handed from one to another, in fact, whatever is movable personal property is within the mean- MOflTOACJEs AND SALES. 107 in" of the term "o-nnilu." i .■ 1- •! , '' '" ^''"'i 1 10 term "f>Tio<-fr>i» 18 ordinanly used to sucl) things as are ....v.! I /. from hand to hand .ivos ^o^f n ■ ' '' "^ ''•^'"" P^^'^^^'J preventing fands upon' ..edito. ^^^^ ^t'l^ ^f f^ sonalehattol.s(J7.tl8 Vi^ e-w .,,/ ''"'^/^'"^ "^ ««'" of per- expression "Personal (^hlttd.'^lZ^^r^T^'"" *^« funds or securities of any .ovon„.cn 1 T '" ''"''^• po.ty of any incorporat 'l^.- o r^I'" "''"' '''' ''''" action, stock or ..rodure „n . company, chosen in meaning articles S:o o....A^ T '''''" ''•^ "«'^J «« --tiiismJ;^:;:;:^*^^^^^ arc not witlun the En^lisJ, Act th ?•" "'"^° fe"-«^">g ^^ops -noval than the land it If yi f ' "" "'"" ^'^P^^'^ "^ Gh. I). 539). ^ ^ "^'''' ^^ ^'^ C-ro^vs. '^ L. R. 11 Pm,incial Act the torn,., M„liv„L" '' '^^' " '" "" not in»,tel with „„v ,L. ' ,1 ' ■ '"'■!*»"°". * . "'ough *. idea of"a « ^os^nt «::,' "^T' ""'" °""' *"'' ^^^ S.v™, tat when the ...o.%a..ee in,,' t, „, 1 , ''""«° '" v.a, *,r,.>«, p,„« v;,^,„, S . '!,; r'^" ^«'^''»' Now, n» ,t appea,-«, that the Statute „„lv Lt", , *.ood»,tohethe,„hieet„faChatJtCX:eZ- 108 MOHTUAtlKS AM) SAI.ICS. arises whether the Statute npi)lic.-. to existing thinys oii!\ things in esse; or can tilings not in efsc, but in posse, ln- lirought within the scope of the Act. However alienable the jji-operty in pcisonal cliattels may be, unless a party has tin- actual or potential property in that, which lie professes to alien he cannot, in law, make a valid grant. He cannot, at law gi-ant the product of that which he luitli not, but he undoubt- edly can of .that which he liatli. The owner of land may gram its future yield of fruit, and property in the fruit shall j)ass ;l^ soon as the fruit is extant; as (21 Hen. a) a parson maygnim all the tithe-wool he .shall have in such a year, yet perhaps li. .shall have none {Grantham v, Haivky, Hobart, 132; Petcks Tutin, 15 M. i: W. 1 10). So a grant is good of the next yoai > wool ofT sheep a man has got, because he has a potential pio- pciiy in such wool ; there is in such a grant, a foundaticn ini an interest in fat am ; but an actual .sale is bad in law ef tin; next year's wool off sheep a man has not ; for he may nevci have them, and the possibility of liis ever having property in the wool, is in noway connected with an actual property in the sheep {pei- Pollock, C. B., 15 M. >.t W. IIG ; Parsons on Con- tract.s, pp. 522, 523 ; Slicp. Touch., Atherly's Edn., 241, "242 , And a grant is good in law of hay to be grown on the grantor- field, or the milk that his cows will yield in the coming month ( Wood I' Foster's case. 1 Leon. 42 ; Rohinso n v. Macdonald, '. M. & S. 228), and so it was held, that a party could pass no titl- to tish, thereafter to be caught (11 Am. Rep. 357), or mortgai;.' a thing which is not his at tiie time the Mortgage is givdi (Jones V. liichardson, 10 Mete. 481), or sell something to W- afterwards acquired. It therefore is plain that, at law, things not yet in esse, having regard to their transfer, are dlvisibli' into two classes : Firstly, those things which have a potential existence, such as the next season's wool frojii a grantoi'- sheep ; and Secondly, those things not connected with the pre- sent ownershi[) of property, such as the next season's crop oti MOn-rGAlJKS AND .SALES. 109 any Inn.l tho grantor may buy within six n.ontl,.. Afc lawr tho former are tho subject of transfer ; the latter can only be unuh tho .sub.,..,,.t of an a;,^reement to sell, that is, the subject of an executory co.itract. There can tin., be no ..uestion ln,t that (he hrst u( the.e two classes is within the intention of our Statute. I„ the United States, lunvever, it can hardly l>e said rLat the law ,s so settled, though the tendency has been, of late t.sustani Mortgages given u,.on unplanto.l crop, at least, to .he extent of one season (!l>«v. Wat/,-h>s, | fi Alb L J 905. Dupm V. NcC/onahans, Tex. R. Ct. of App ) ' " ' The second class, however, covering such 'things as are not .votaciun^ed, tlungs not capable of a present positive transfer opemfve m p^-^enti '■ but things, th. snbject of a present con-' tract to take e«ect and attach as soon as the things come m -«e (Story s Kqn.ty Jurisprudents S 1040) has given rise to much d>scu.ss,on, and not a little contrariety of opinion. At law there ,s no doubt, as a general principle, that the existence of the hn.gs sold, or the subject matter of the contract, is essen- ua. .0 the validity of the contract, and a mere contingent possi- MUy, not coupled with an interest, is no subject of a .sale There n.ust be either an actual or potential ownership, at the .'"-;.";' 'f '''''' '' '=^^^ ^P---'« - Contracts, pp. 0.2 o..,) Though, as we shall afterwards .see. the rule in J.ty ,s ddlerent. To make a valid .sale of a thing, at law he vendor must have a vested interest in the article, at the me of the sale, so that a sale or mortgage of goods, not owne.l hy the vendor or mortgagor at the time of the transaction, but ^J^tenvards acquired by him, was held to be void (Jones v V t"'; " l'^ T" ''' ' '''"' '■ ^'^"^' ' ^"-' '^60 ; Head y Goodimi, 37 Me. 181 ; Lozo v. Pe^o, 108 Mass. 347) And it was held that a sale, purporting to convey present property, as ^ as all such that the vendor might afterwards acquire. passed only such property as was in the vendors po.sse,ssiou at the time of the sale^ (Wihon v. Wilson, 37 Md. 1 ■ U Am I no MORTGAGES AND SALES. Rep. 51S). Jjut, on the other hand, the Hiuiie country, thai furnishes the above autlioritien, HUpplies others ^'oing to shiw ^liat property in tliinj^s, subsequently acijuired, vests in tlii' purchase!' imniedintely the title is ac([uired by the vendor, provided the vendee has not in the uieantinio repudiated ?he transaction {Frazer v. HiUiavd, 2 Strobh. 309 ; lilad-more v. Shelby, H Hump. Tenn, 431)). However, it is well .settled with us, that when the subject of a contract is .sonicthinjjf non-existini,', or to be subsequently acquired one can, at law, make a valid agreement to .sell, but not an actual .sale {Limn v. Thornton, 1 C. B. 379 ; Cimimings v. Morgan, 12 U. C. Q. B. 565 ; Coote on Mortgages, 235; Short v. Ruttan, 12 U. C. Q. B. 79; GnU v. Burnett, 7 U. C.Q. B. 850; Beldinyv. Head, Exch. 11 Jur. N.S. 547; 3 Hurlst. ^t Colt. 955 ; Congreve v. Etwtts, 10 Exch. 298, and 23 L. J. Exch. 273 ; Hoj^e v. JIayley, 5 E. & B. 830 ; 25 L. J. Q. B. 155 ; Ckldell v. Gahmvovthj , Com. B. N. S. 471 ; Alkl v. Kerr, 1.7 L. J. Exch. 385). But though, at law, property non-existing is not assignable, or in other words, at law, there cannot be a " prophetic conveyance," importance is to bi' attached to the subsequent acts of vendor and vendee as the law la.s hold of certain acts to carry out tlu' evident intention of the parties. A .sale, though void, will bo upheld, if there is a novua actus interveniens on the part of the vendoi , whereby he evinces a desire to confirm a previous sale of aft r-acquired property. Licet dispositio de interesse futaro sit inidih tomen potest fieri declaratio prueeedena qua: sortiatur cfectum interveniente novo actu (Bacon's Maxims, 14th; Lunn v. Thornton, 1 C. B. 379 ; 9 Jur. 350 ; 14 L. J.C.P. 101 ; Re Thirkell, Woodv. Perri7i,2lGv.ry01 ; Holroydv.Marshall,33L.J.'ii.S.m: 10 H.of L.Cases,191). So also it is necessary, in order to niakea sale effectual of after-acquired property (should there be no other novun actus) for the vendee to exercise his power of seizure, should the deed contain one, and, when the power has been prupijrly exercised, to the extent of taking po,ssession of MOKTOAUES AND SALES. jjj S..e, of the Union, «,, ,a. J 1 „ ' ''^,.J:;:';;/ "? » purd.a^,, or panteo the mo,„™t of its bein. a^l , '. , °, ■ ' "" ^™''™ l"" onlj- ajK* mi nm until ho . th venJo, doe, ,o,no ,„b«,u..nt act, cloa,ly ..:■.. ,„. '.e' ...nt,„n of tl,o parties to .atify tl,„ orisinal „„.,., ft"'! .,.dg.nent aedito,- will tlK.,.ofo,e bo prefened » ^^^^ I -ga.'eo of property not in existence, or not n, th. pd^ .f h,. n,ortgas„,, at the tln.e of the exeeuti,,, „f ,|,e ICtZ JU J/„„4„«. s»^„). It has 1,.,,, argued that this ease » «clns,ve npon the point that, even „t Taw, after-al^ •Wards ac„nred, when .,0 described that itcouW bo rea • .*.«/»«, here was a novm cdu, mte,.„^fe,„ fc n„ J„ in c old mactoncry, clearly evincins the intention of .11 pa,- ■■''K.bnn, theaftcr-acuired property within the s^Vpfof ■J ^2 MORTGAGES AND SALES. the instrument. And the m-iter takes courage in his venture from the words of Blake, V. C, when discussing this case m Ins iudoment in Wood v. Perrin, 21 Gr. 504. But though the la^v- "L such with regard to assignments of things which have nr, actual or potential existence, the rule in eciuity is different, supporting also assignments of contingent interests and expect- ances (Bennett y. Cooper. 9 Beav. 2o2 ; Cart., y AuberA Jac &Wal. 532;/. r.S/u^> If arre, 8 Price 2G9, n,DouoIas. Ru^seU, 4 Sim 524 ; Li.^dsa, v. GM, 22 Bea. 522 ;La^r^ V. Morion, 1 Hare, 540 ; U L. J. Ch. 290> Rev btat^ On cap. 98, s. 5, provides for the granting at law of contmgent, executory, future interests and possihilities coupled with an rit hi land and rights of entry immediate or f uture, ves o,l or contingent, but the statute does not make valid assig • .ents of contingent interests or possibilities no coup ed w. an interest (Taylor, E^ v. Lochcood, 10 MORTGAGES AND SALES. jjj mrj ^^f^nt: ::;„T"- ^^-^-^ "'^^ -^ «- luiiy, even when the assignment is one nf . hope dependent on a chance, such as the sale l.vVfi l ot.cast of his net for a given nricefSM ""^ " ",*""™"' TI.US, it will be seen that fj • ^ " ™ **'• '*^)- the absence of s„rs 1 ^nrnh'' '™"' '' '"' '">"" of .oods whicl, (1, ■ I *" ">"8nor, or assignee r,u rl 1* h *"". ""' " '"" """*"■• '"" "Wch no. does It m insolvency proceedings, nor does it in tb. B.v,„enconrt (A„« v. roc*, 2, C.WS; R.vd Stalont !'7: "'■ »•;*■ ™'- 2), And now (since tl e ,rslg"f ^t Admm,strat,on of Justice Act of 1873, S6 Vie. Out Z 8 the »s.r that in a ZJ^^ul " .'*™'"'' '' «■■• "^^^ " «"« -t or mortCofln T '° " """^"'"i^^y. -n^ign- «f sciuare ttol^t »' """-"''■^'"■g property (such as a quantity iZZaZM ™'"^"™"y *<""> l>adand manuLured ZhIrJ, ^'■'■«'™- »«^™). or that is thereafter to be made h r!« ■ , ■ "'^™^' " ™* ^'o* " 'houM be purchased ' reafter dun ng the eunency of the Mortgage (PerrlnXo^ I property to th'erZrth?'^' '^ ™'''"' '°'°" """""^ Msnotintheho,,.. 1, ?v I °''' '""■'°* '«'«'« to J,ri , .,,„ "" ™;' •'»' t^sW i- after the execution of tha m ' ; f 114 MORTGAGES AND SALES. milman, 6 Scott, N. R. 967; 6 Man. & Gr.245; 12 L.J, C.P. 311 ; Reeve V. Whitmove, 33 L. J., Ch. C3) ; and where, m in Thh'Ml V. Perrin, supra, the mortgage covers future acquired stock yet if, having regard to the terms of the mortgage, there is an implied license for the mortgagor to caiTy on his business and sell the stock, then bonajide purchasers from the mortgagor will have a good title, notwithstanding the mortgage was duly roistered (Nat. Mer. Bank v. Thomx>son,l..^., 5. Q.B.D. 177). In seeking to ascertain what fruits of the soil are, and what are not, independent chattels within the meaning of the Act, it will be well to bear in mind the distinction between/VHcht« indudmdu .rndfractus natwrahs; under the former definition, and within the scope of the Act, are fruits produced by the annual labour of man, in sowing and reaping, planting and gathering (Jo),.. V Flint 10 A. & E. 753 ; Carrington v. Roots, 2 M. .V W. -IS , Slmsbnr>iy. Matthews, 4> M. & W. 343; Warrieky. i?7we,2 M & S 20.5 ; Forbes v. iShattuek, 22 Barb. 508 ; Mumjord v. Whitneu, 15 Wend. 387; Graces y. Wild, 5 B. & A lOo. Evans v. Roberts, 5 B. & C. 529 ; Westbrook v. Lajer lb N, J, L 81 ; Dunn v. Ferjusson, 1 Hayes (Irish), 542 ; Wms Saun- dors vol 1 277 c; Farker y. Stainland, 11 East. 302) for, ut common law, a growing crop produced by the labour ml expense of the occupier of lands was, as the represen ative o that labour and expense, considered an independent chattel (Benj. on Sales, 1 Am. Ed. 120 ; 2^er Bailey, J. m^ran.v, Roberts 5 B. & C. 836 ; Kingsley v. Holbrook, 4o N. H. AU, 318 319 ; Dwnn v. Fergiu^son, 1 Hayes (Irish) 542). Within the latter definition, 8,nd beyond the scope of the Act before sever- ance is the natural growth of the soil as grass, timber, fruit on trees &c &c. The latter are an interest in land, and, as such, embraced within the fourth section of the Statute of Frauds (Seovell V. Boxall, 1 Y. & J. 396; Crosby v. WadsuvrtK^ East, 602 ; Carrington v. Roots, 2 M. & W 248 ; Teal y.M, 4 J B. Moore, 542 ; 2 B. & B. 99 ; Rodwell v. Philhps,J) MA W 505) The former are chattels, and, as such, withm .lie im section of the same statute. But here again there is a dist.nc MORTGAGES AND SALES. 115 ere is a distinc- tion to be observed. It may, and often does happen that a sale of fruit or trees is a contract for the sale of -oods and chattels ami thus within the statute ; when fruit or timber is sold, with a view to Its immediate severance from the freehold, and with a view to passing to the vendee an interest in the property when either becomes a chattel, the contract, then, is one for the sale of yoods and chattels, and not of an interest in land. "It is the same as if the parties had contracted for so much fruit already picked, or for so many leot of timber already felled" [Marshal V. Green, L. R. 1 C. P. D. 35 ; Smith v. Surman, 9 B. & C. o()S ; Lord Abinger, Rodwell v. PhUllps, M. & W. 505 : Rolfe.B. Washhourne v. Burnms, l(i L. J. Exch. 2G0 • 1 Exch 115 ; Woodruff- v. Roberts, 4 La. 1?^: '!oack v. Smith, 1 Md. Ch" 401 ; Clajlm v. Carpenter, 4 Mr. . o..; ; Loiigla, v. Slummvay, 13 Gray, 498). If allowed to roi , u la the possession and under the control of the vendor after severance, then the statutory requisites must be 'complied with (McMillan v. McSherry, 15 Or. 13.-5). Fixtures, too, may and may not be within the opera- tion of the Act. The intention of the parties, in dealing with the fixtures, will decide their character. If they 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 will operate upon such a contract {Hallen v. Rimder, 1 C. M & R m; HeUiwellv.Eastivood, C Exch. 312; Wick v. Ifodgso^i 12 Moo). The owner of land, upon which there are fixtures, 'has the riglit to sever the fixtures from the freehold, and a Mort- gage by him upon the fixtures will not be prejudiced bv a sub- sequent Mortgage of the land (Rose v. Hope, 22 U. C. C."?. 482 ; see In re Eslkk, ex parte Alexander, L. R. 4 Ch. D. 503)1 "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 thereon to secure the purchase money, a prior mortgagee cannot claim them as subject to the lien of the Mortgage, although they are subse- quently annexed to the freehold; upon failure to pay the Chattel Mortgage, the mortgagee or vendor is entitled to theLr'delivery" fl f = 116 MORTGAGES AND SALES. (Tift v.Hovton, 53 N. Y. 377 ; Goddard v. Qouhl 14 Barb. CG2 ; Mott V. Palmer, 1 N. Y. 5G4). And, where the same person ,s mortgagee of land and of personal property, and the Mortgage. are assigned to different parties, the assignee of the Chattel Mortgage is entitled, as against the assignee of the Real Estrte Mortgage, to the personal property mortgaged which has been attached to the freehold {Sheldon y, Edward. So ^.Y. 27i)l But if the intention of the parties, as shewn by the terms o the instrument, is that fixtures should pass with, an^. as par of the freehold, then registration of a Mortgage, as a Chatte Mortgage, is not necessary to pass the interest in fixtures fixe to the soil {Potts V. N. J. Ar>m <^c., Co 2 Green (N J^ 395) In Deivar v. Mallonj, (reported in 20 Grant OlN), the owner of a mill, originally constructed for the purpose of sawing, afterwards added to it machinery for planuig the dumber, and subsequently executed a Mortgage of the land and a Chattel Mortgage of the machinery, treating and ca ling he machinery chattels, it was held by the Chancellor that tl>e mortgagee of the realty had no right to look to the madinioiy as security for his claim; although in the absence ot the acts of the owner in severing the machinery from the realty, it would have been considered part of the freehold Has case has been reheard and reversed, but on other grounds. (rf) In this Act "Ontario" is substituted for Upper Canada n Con. Statutes U. C, cap. 45, s. 1. The inference from he words "made in Ontario" certainly is, that the Act only applie. to instruments, executed under the Act within the Province, Thou.^h this appears to be the effect from the use of these words, such was clearly not contemplated, as by 41 Vic. cap. viu„ s. U, sub-s. 2, including section 24 post, persons out of the Province, authoriied to take affidavits in and for the Court of Queens Bench or Common Pleas for Ontario, are expressly empowered to administer affidavits under this Act. And, by section / pod, it would appear that provision is made for registration ot in- struments by residents out of Ontario, ot property withm the Province. MOIITGAGES AND SALES. 117 [ej If persona things are in the visible possession of a vendor, and sold by hini to another, if the vendee would have the contract to be clear of the in.p„tation of fraud, actual delivery ought to be instantly made, or as near a delivery thereof as the nature <,f the thing admits of, and an actual and continued change of possession of the things, had, or the act n w»'''r ; """ "T"^" registration (Curtis v. LeaviU, 17 1( Pick ()!) ; P«,,M V. /;^,^aW, 52 Barb, .^or) ; whether oi' not he-i^e has been an actual and continued change of possession of the things mortgaged, in order to obviate the necessity of registering an instrument under this Act, depends upon the nature and position of the property as well also as iipon the Tn\lf r'^"'%'^" ''" ^''^■^^"'""-t (Fry V. Miller, 45 Penn. 441 ; Morse v. Po^vers, 17 N. H. 28G). In determining this question, these circumstances must be looked at and con! sidered and often result in very nice decisions. From the very diversity of things, what, In one instmce, would bo possible, in another, would be impossible. The law is reason- ale, and requires not that which is \mw~^HMeiMcMartiny. Moo^'c. 2/ U. C. C. P 397; Maulson v. Com. Bank, 17 U C O B. ()). In many cases, it is not possible to make an imme- diate anrl complete delivery, and, in such cases, as near an approximation to delivery, of which the property is suscep- tib e niusi be ma.le, and if this be done, the Mortgage or Sale Ow, 29 U C. Q. 13. 3G()), and there will remain no necessity for legLstration under the Act. Thus, where goods in a shop or other occupied building, under lock and key, are sold by the owner, and the key delivered to the purchaser, who goes to the place and examines and checks over the goods and t en locks up the place again, an actual and continued change posses.sion will be constituted, so as to.satisfy the Statute and the purchaser need not, either personally or by some one or him remain in possession or remove the goods (Mc- MarUn v. Moore, mpra, Herman on Ch. Mtges., p. 203). Zi ^ it .J jjg MOUTOAGES AND SALES. SO ^vl>crc the f,n-a.»tor was tenant of rooms where ^oocls so, wneiL, ui ^ u„i.. w..r.. nlacod Vmt vcHuled else- counirised n a Bill of Sale were piacKi, '^' vh e. and, havin. nuade default in paying the sum secured ho "we the keys%.f the roo.us to the grantee, who openo them and put his name on some of the goods but d>d not en >;« then., it was held that the grantor did not occupy the rooms, and that the goods were not in his .vpparent ^. session (^d.l. on Contracts, 820; liobni>^o>i v. Jn4 Hence loo, when the goods are such as are not capable ot Sevy, but as is often done, the key of the warehouse con- ainin.Uhem is given up, but the key is afterwards wibhek :d ret nue is brought by the mortgagee, the institution o the action rebuts the presumption of conscjn to the „. remaini...' with the mortgagor (Herman on Mtges.,p 203) Ikt XI th^ assignee, under a Bill of Sale of l--^-^^ -;;'^- immediately sent a person to the house to take --^\^ who took and kept possession, but the assignor do. to th date of the bankruptcy, continued to live in the house, ml te the furniture, as he^had previously been accustomed to d. it was held that the goods were in the apparent possess,cmf the assi.^nor (E.v parte Lewis, in re He.mhvHon, L. R. b tli. b-0 , t ;::r. HooJ, m ,. nnlno, L. R. 10 Ek. (j3). And so in our Courts, where the dehtar assignor^ all his propoitj to MOUTOAOKS AND SALES. 11!) trustees, for tho benofit of l.i.s creditors, with the most minute accuracy, and his sign was taken down, l,nt lie remained on with liiH clerks in posHcssion of tho froods, selling them (IS hefoie the assignment, as if they were his own property yet still accounting to the vcn.lce, tho jury havin^r nega- lived the possession of the trustees, it was hcl.l that their verdict for the defendant should not be interfered with (Aiin- Mmni V. Moodw, O, S. 538). This decision w.. anterior to any of our Chattel Mortgage Acts; but with a determination to free every conveyance of property, whether real or iiersonal, from fraud or collusion (which are things the Oommon Law universally abhors, an7 Eliz, cap. 4 ; 21Ja. 1. cap. 1.9 ; R. S. O. cap. IIS, s. 2 ; R. S O cap. n, s. 7.'}), which open too wide a field to enter upon in a little epitome such as l,his won. is intended to be. But they may here be mentioned, as shewing the founda- tion upon which the numerous authorities are based, prior to the Chattel Mortgage Acts. Jn llcward v. Mitchell, (10 U.C. Q. B. 5.'J5), a step further was made, than in Armslromj v Modie, Hupra, to perfect the change of possession, an.l the trans- feree travelled and took possession, but at once re-delivered to the debtor, as agent of the creditors, and still thechan-e of pos- . . .on was not sutticient; for the d.divery to the fTgont was held only e.puvalent to a symbolical delivery, and therefore of a character not intended by the Statute (1 2 Vic. cap. 74; 18 & 14 Vic, cap. (i2) that the title to personal property, capable of delivery from hand to hand, should, for the future, depend upon (Pickard v. Marrimjc, L. R. 1 Ex. D. 3G4; Ancona v /Jo(/[nm that the change of possession be visible. Visible change of possession, 'however, is nowhere in the Statute mentioned, and even though the change be visible, the reciuirements of the Statute may yet not be fulfilled, for there still may lack tliat changeof possessionapparent fromanhonest transaction (11 dmi V. Kerr, 17 U. C, Q. B. 170; Ikid v. McDonald, 2G U.C.C.P. 147). The object for which the property is retpiired is a circumstance, as has before been mentioned, to be considered in ascertain- ing whether or not the Act applies. Therefore material sold and delivered, to be worked up in repairing a vessel by the plaintiffs foreman, as well as by the vendor, though it be left on the vendor's premises, where the work was to be performed, and apparently in his possession as before, was held to have sufficiently changed possession, to do away with the necessity of a registered in.strument {G'ddersleere v. Aulf, IG U. C. Q.B. ' ■)1 ; and see McFartland v. Head, 11 Allen, 231 ; Lajl'ni v. tri^ths, .35 Barb., 58 ; Wheeler v. Nichols, 32 Me. 233 ; Weld V. Cutler, 2 Gray, 195 ; Pidrick v. Meserve, 18 N. H. 300 ; Doxjle v. Stephens, 4 Mich. 87). In cases where the vendor has not the property in his possession, nor yet the right to its possession, until the happening of a subsequent event, on his part to be performed, the Act will not apply {Gum(i( v. James, 19 U. C. Q. B. 157), nor does it apply where, from the circumstances of the case, things are incapable of a change of possession, consistently with the object ul' the MORTGAOES AND SALES. 123 agreuracnt in re^'ard thereto (Burton v. Belhouse, 20 U. C Q. B. 60), nor again does it apply to goods in customs, .subject to duties, for they are not capable of delivery ; but the Act would apply if tho directions of the Customs Acts had been followed, prior to the assignment (Harris v. Com. Hank, lO U. C. Q. B. 437.) Whether or not there has been an inuuediate and suf- ficient change of possession, to satisfy the Statute, is not a ({ues- tion of law, but one of fact, and as such ■■ question for the jury ( Waldie v. Graiuje, 8 IT. C. C. P. 431 : Swift v. Tkumjmn, 9 Conn. G3; Ilowev. Kdlij, 27 Conn. 538 ; Warren v. Carlton, 22 111. 415 ; but see Young v. McClure, 2 W. & S.147 ; Carpenter V. Meyer, 5 Watts, 243 ; Milna v. Henry. 40 Penn. 302 ; Cad- hxii-y V. Nolan, 5 Penn. 320; Barrovj.s v. Stebblns, 20 Vt. 659). And, where there was clearly a delivery of goods, and it was shewn that the assignees had empowered the assignor's clerk, as their agent, to keep and sell the goods in the shop, and make weekly returns of sales to the assignees, which was done, the finding of the jury that there was an actual and continued change of po.ssession was upheld, notwithstanding in some in- stances (but without the assignees' knowledge) the agent had permitted the proceeds of the goods to be applied in payment of the assignor's claims, and once had paid money into a bank to the credit of the a.ssignor, and, indeed, had taken no steps to give public intimation of the change of po.ssession, either directly or by removing the as.signoi-s' name, as the party carrying on the business (Fo.^^ter v. Smith, 13 U. C. Q. B. 243); and though the a.ssignor remained upon the premises,aud assisted in disposing of the goods as formerly, the jury's finding that there had been sufficient change of possession was not.inter- fered with (iMauhon y. Com. Bank, 17 U. C. Q. B. 30; but see Carscallen v. Moodie, 15 U. C. Q. B. 92). For, where an assignment is made for tlie benefit of the creditors, it is not to be expected, from the nature of the transaction, that the as- signees should remove the goods, or take exclusive possession. And when the creditors put an agent in possession, even though ho bo previously in the employ of the assignor, and his duty • f -! ! 1 124 MORTOAGF.H A.ND SALES. is to dispose of the stock and collect the debts, and ho acts in this dutv, there will be a sufficient change of possession within the niiitning of the Act {Havrwon v. Com. Bank, 16 U. C. Q. B. 437 ; Tnyhr v. Com. Bank, 4 U. C. C. P. 447). A deed, though it may bo void with res])ect to one parcel of property for want of registration is not therefore avoided hi toto, or rendered invalid as to goods, which go with, and re- nmin in, the possession of the assignees {Taylor v. Whittemore, 10 U. C. Q. B. 440) ; but, it cannot be upheld as to other goods, of which possession could not, in the nature of things, have been changed at the time of making the deed {Hhort v. Ealtav, 1-2 V. C. Q. B. 95) ; nor can it be held good in part, when successfully attacked on the ground of fraud for, so far as any poilion of the deed is concerned, " it is a statute that makes the deed void and not merely a principle of the common law, and it is a maxim that in such cases the deed must be taken to be altogether void, and not merely as to that part to which the objection of illegality applies. And in the next place, it is also a maxim, that when a deed or instrument is ob- jected to on the ground of fraud, if liable to be objected to at all, it must be avoided altogether, and not allowed to stand good, so far as regards any p(jrtion of it, to which the objection of fraud may not apply" (Robinson, C. J., in Short v. Euttan, 12 U C. Q. B., p. 85 ; Olmstead v. Smith, U V. C. Q. B. 421 ; Harrison v. Com. Bank, 10 U. C. Q. B. 437 ; Hewitt v. Corhett, 15 U. C. Q. B. 39). It sometimes may happen when, after as- signment it becomes necessary to protect his interests, that the a.ssignee or mortgagee should take possession. Actual pos- session, taken by the grantee, on an unregistered bill of .sale, even though taken wrongfully, may exclude the operation of the Act. But, though when possession is taken rightfully, the possession will be extended by construction of law, beyond the actual physical possession, this will not be done in the case of a wrong-doer. His pos.session will not be extended beyond his actual physical possession (ex parte Fletcher In re Henley, L K. Ch. D. 809). Where, accor fdini: to the terms of the in- MOnTOAGES AND SALES. 125 striinient, tho grantee, upon default tnado by the grantor, is entitled to the possession of tho goods, upon demand, and makes demand, but does not take tiie goods out of the grantor's possession, there is not such a change of possession as to pre- vent tho application of the Act (Aneona v. Rogers, L. R. 1 Ex, D. 285). If a bargainee, or mortgagee, does not actuRlly, get possession, diligence, in attempting to get it, -• U no help him {per Mellish, L. J. in Ex parte Jay, L, 'i. Ch. fif)7, p. 70o). But, if tho mortgagor prevents tho n ori'.agee lidii taking possession, and the mortgagor at once 'rings detinue against him, the pursuit of the goods in a Cou , of Law [)revents the operation of the Act (Herman on Mtges. p. •203). We have seen, that the possession, which might not be sutticicnt in the case of a wrong-doer, may yet be extended to exclude the operation of the Act in the case of a rightful taking possession. A mortgagee, before default, may or may not he a wrong-doer, in taking possession. " If in a Chattel Mortgiigo there is no covenant that the mortgagor shall remain in possession, until default, yet, though such mortgagor remains in possession the application of the rule, that possession follows the jjroperty, wherever the right of possession is iu the owner, is not prevented." Hence it is, that the absence of a redemi.se clause, in a Mortgage, entitles the mortgagee rightfully to take possession of the property mortgaged, though no default may yet have been made by the mortgagor {Samuel v. Coulter, 2» U. 0. (J. P. 240 ; Bwnker v. Emany, 28 U. C. C. P. 438; McAuhy V. Alien, 20 U. C. (J. P. 417 ; Ruttan v. Beamish, 10 U. C. C" P. 90; Porter v. Fllntoft, 6 U. C. C. P. 340). As stated by Parke, J., " Where there is a sale of goods generally, no property in them passes, until delivery, because, until then, the goo'ls sold are not ascertained. But where, by the contract itself, the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel, and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pursuance of a general con- tract. The very appropriation of tho chattel is equivalent to 126 MORTGAGES AND SALES. delivery hv the vendor, and the assent of the vendee to take the specific chatteUnd to pay the price.is equivalent to his accepting possession. The effect of the contract, therefore is to vest the property in the bargainee" {Dixon v. Yates, o B^& AJd. 313). A mortgagee, taking possession before default, or breach of any of the covenants contained in a Mortgage, in which there was contained a redemise clause, will be a wrong-doer and an action will lie, at the suit of the mortgagor against the mort- „a-ee for his so doing; but the damages to which the mort- L°or' would be entitled would be only to the extent of hi.s Tnt^erest in the goods, and for the damage done to such interest, instead of, as in the case of a wrong-doer, for their full value (McAnley v. Allen, 20 U. C. C. P. 417 ; Bnebj v Kendal, 17 O B 937- Fenn v. Bittlcston, 7 Exch. 153 ; Flanders v. Cham- herlin 4 Mich. 30.5; AsJnvorth v. Dark, 20 Tex. 825). And when 'the Mortgage contains no redemise clause, and is bona Me a, mortgagee is entitled to an action of trespass against 'the Sheriff, seizing under a/, fa. against the mortgagor (i oi'ter V. Flintoft, G U. o. C. P. 335). , ,, , ., ,„ ,, (/) As the alternative of filing the Mortgage itself, the Statute gives the power of filing a true copy thereof. It gen- erally is the practice to register the Mortgage itself, and, for the party entitled thereto, to keep the copy. It is submitted that the 1 tter cour.se would be to register the copy, and tor the party entitled thereto to keep the original. By this means in the event of the in.strument being questioned in a Court ol Law the expense and trouble of the officer attending to produce the oricrinal is avoided. By section 12 (infra) a ce tified copy of the original instrument, or of a r .py thereof, is evidence only of the fact that such instrument, or copy, was received and fifed according to the endorsement, and of no other fact. To prove the execution of the instrument, the original must, of course, be produced, and, to do .his, under the system generally prevailing of recdstering the original, the Clerk of the Court, with whom it is filed, must be ubpcenaed to attend. Far more conveni- ent would it be, therefore, in view of litigation, involvmg the MORTGAGES AND SALES. 127 14 41 contents, construction, or execution of a Mortgage, to file a copy, retaining tho original, or to make duplicate orfginals, filing one, and retaining the other, having attached to the latter the Clerk's certificate (but see sec. 4 post (147) Emmott v. Marchant, L. R. 3 Q. B. D. 555). When considering section 5 (infra) we shall see that considerable doubt exists as to whether a copy of an absolute assignment or Bill of Sale may be filed, as well as a copy of a Mortgage, though the weight of authority is in favour of the affirmative (Harris v. Covi. Bank, 16 U. C. Q. B. 437). (g) The words "within five days from the execution thereof " exclude either the first or the last day, so that a Mortgage exe- cuted upon the first of January, is projierly registered upon the .sixth of January following. Should a Sunday intervene it is counted as one day, but if a Sunday .should be the first or the last day, then such Sunday becomes a dies non. The rule of computation given by 2 Geo. IV. ch. 1, does not apply, as this is a term appointed by a Statute, not by a rule of Court. When there is no provision otherwise, then the general rule as to computation must be fol'owed, which is to make the first day inclusive and the last day exclusive, or vice versa (Scott v. Dlchon, 1 Prac. R. 3G(J ; Ex parte Fallon, 5 T. R. 283; Williams V. Bitrgess, 9 Dowl. 544 ; Webb v. Fairmaner, 3 M. & W. 473 ; and see Lester v. Garland, 15 Vesey, 247; Pelloiv v.Wonsford 9 B. & C. 134 ; Younr/ v. Higgin, G M. & W. 49 ; Blunt v. Hisloi) 8 Ad. .t E. 577; Isaacs v. Roij. Ins. Co., L. R. 5 Ex. 296 ; Boulton V. Ruttan, 2 0. S. 396; Clarke v. Garrett, 28 U. C. C. P. 75). When expressed to be "so many days from," &c., then the day of the act from which the future time is to be ascertained, nmst be excluded from the computation (Wecks^v. Hall, 19 Conn. 376 ; Bigeloiv v. Wilson, 1 Pick. 485 ; Wlggin v. Peters, 1 Met. 127, 129; Henry v. Jones, 8 Mass. 453 ; Woodbridge v. Bridgham, 12 Mass. 403 ; Blake v. Growninshield, 9 N. H. 304 ; Avery v. Stewart, 2 Conn. 69 ; Aiken v. Appleby, IJMorris, S. il \ Cornell V. Moulton, 3 Denio, 12; Boulton v. Ruttan, 2 O. B. 396). When expre.ssod to be "clear days," or ^'so many days at least," or " between so many days," both the^first and last daya 128 MOKTGAGES AND SALES. are exclusive (Liffin v. PHchcr, 1 Dowl. N. S. 7G9 ; Regina v. Jiustiees of Shropuhire, 8 A. & E. 17.3 ; Dcmpscy v. Dougherty, 7 U. C. Q. B. 313 ; Rex v. Justices of HercfonMire, 3 B. & Aid, 581 ; Zoitch v. Empsey, 4 B. fc Aid. 522 ; In re Pmnglcy, 4 A. & E. 781 ; MUgJiAI v. Fo'^tei; !) Uowl. P. C. 527 ; Young v. Higgon, G M. & W. 49 ; Chambers v. Smith, 12 M. & W, 2 ; Blunt V. ires?o^, 9 Dowl. P, C. 982 ; Mcintosh v. Vanstccnhunj, 8 U. C. Q. B. 248 ; In re Sanes <£■• Toronto, 9 U. C. Q. B. 187 ; Atkins V. Boyston, F. & M. Insce. Co., 5 Met. 440; Richardmi V. Ford, 14 111. 332 ; Cool' v. Grey, G Ind. 335). So also the ex- pression from a day to a day excludes botli days in the count : thus from the loth to the 18tii of a month excludes both the 15th and the 18th {Kewhy v. Rogers, 40 Ind. 9), and the word "until" is also exclusive (People v. Walker, 17 N. Y. 502, Kerr v. Jeston, 1 Dowl. N. S. 538 ; Blunt v. Heslop, suprri). A fraction of a day will sometimes be reckoned. To carry out the ends of justice, the Court will divide a day, or even an hour, and thus give the party equitably entitled thereto, the benefit of every moment of time (hi re Sherijf of Newcastle, Drap. K.B.Rep. 503 ; Pugh v. Duke of Leeds, 2 Cowp. 720 ; Peivtress v. Annan, 9 Dowl. 828 ; McMariin v. il/cI>our/a«,10U.C.Q.B.399; Thomm V. Desanges, 2 B. & Al. 585). When time is prescribed by rules of Court, then it must be reckoned inclusively of botli the first and the last day, unless the last day shall happen to fall on any day on which the otilces are not required to be open, in which case the time shall be reckoned exclusively of the la.st day (Reg. Gen. Prac. IGG, Tiin. Term, 185G). Under the earlier Statutes, relating to Chattel Mortgages (12 Vic. ch. 74; and 13 and 14 Vic, ch. G2), there as no time allowed, within which the instrument was required to be registered, nor wa»s it re- quired that instruments should be registered immediately and forthwith. Still it was held that an execution coming in before the filing of an assignment, which required to be filed, was entitled to prevail, though a reasonable time for filing may not have elapsed since the execution of the assignment {Carscalkn v. Moodle, 15 U. C. Q. B, 92). Since MORTGAGES AND SALES. 129 ivA 20 Vic. cap. 3, however, -which repealed 12 Vic. cap. 74, and 13 and It Vic. cap. 62, a period of five days has always been allowed, from the time of the execution of the instru- ment for re^fistering the same. But here another difficulty arose. For want of statutory enactment the Common Pleas and Queen's Bench differed as to the effect of this period of fivi (lays, in relation to writs of execution placed in the Sheriff's hands, between the date of the execution of the instrument and the date of its registry ; the Common Pleas holding, that the registerini,^ of a Chattel Mortgage did not cause it to oper- ate and have relation back to the day of its date, but that it took effect only frova its registration, and, in consequence, that a fi. fa. placed in the Sheriffs hands between the execution of the deed and its registry would cut it out (Feehan v. Bank of Toronto, 10 U. C. C. P. 32 ; Shaw v Oault et al., 10 U. C. C. P. 236; Halght v. Melniies, 11 U. C. C. P. 518) ; whilst the Queen's Bench lield that, where an assignment was filed within the five days, the filing did cause it to relate back to its execution and the assignee to be entitled, as against a fi. fa. placed in the Sheriff's hands, after the assignment was executed and be- fore it was registered {Feehanv. Bank of Toronto, 19 U. C. Q. B. 475), by analogy to the cases of deeds of bargain and sale in England, enrolled within the six months allowed for that pur- pose. Under ihe Imperial Act (17 .ind 18 Vic, cap. 36), twenty-one days is the period allowed for the filing of the Bill of Sale, and the view taken by our Court of Queen's Bench was the same as that held by the English Court where it was decided that the assignee had twenty-one days in which to complete his title by registering his Bill of Sal« {Marples v. Hartley, 30 L. J. Q. B. 92); so that a Bill of Sale, not registered, is not invalid as against a seizure by the Sheriff before twenty-one days have elapsed (Banbury v. White, 2 H. & C. 300, 2 N. R. 286). The late Imperial Act, of 41 & 42 Vict. cap. 31, reduced the period to seven days). It is easy to imagine the dissatisfaction resulting from this contrariety of opinion, and the Legislature (2G Vic, cap. 46) soon set the matter at rest, by settling the law in favour of the 9 130 MORTQAOES AND SALES. view entertained by the Court of Queen's Bench, enacting that every Mortgage or conveyance shouki operate and take effect upon, from, and after the day and time of the execution thereof, and this is the law as it now stands (sec. ^ post). A Mort- ca-e or Bill of Sale, that 'ms been ineffectually registered, may durinrr the five days be taken off the file and re-registered (in n Wright, 27 L. T. 102) ; but not after the time ^^[Jjf^' ing has elapsed. In that case a new Mortgage or Bill ot bale must be made and filed with a fresh affidavit (In r. OBnen, 10 Ir C L R.App. xxxiii), and if a mortgagee take possession under his mortgage before the expiration of the f^ve dap, then he need not register the mortgage at all (pei •-•- A. Lock- bum C J., in Marples v. Hartley, sunra). The time from which the five days is t: be computed is not the date of the mstru- ment but the date of the execution. The presumption is, that the execution was upon the day of the date of the instrument, but this can be rebutted. The Jate of a deed or mstrument generally means the time when the deed was really made or delivered, not always the day that may have been inserted in the deed, which sometimes may be an impossible day {Beck- man V. J amis, 3 U. C. Q. B. 280 ; 2 Bla. Com). A Mort<-affe under this Act executed on a Sunday is not void under Revised Statutes of Ontario, cap. 189, s. 7. The g,vmg or taking in security not being a buying or selling within the Act (Lai V. Stall, 6 U. C. Q. B. 506 ; Wilt v. Lai, 7 U. C. Q. B, oS5) But, should there be no redemise clause in the Mort- gage, the well established rule applies that the possession fol- lows the property whenever the right of possession is m the o^vner, and it might be argued that such omission so far changes the character of the instrument a^ to bring it withm the meaning of the above section of the Revised Statutes (Porter v. Flintoft, 6 U. C. C. P. 335; i2«««"^^;,^;'^'«";: 10 U C C P. 90; McAuley v. Alkn, 20 U. C. C P 417, Samuel v. Coulter, 28 U. C. C. P. 240); but even with the absence of a redemise clause, the mortgagor has, by implication, a special ..opr-^y m th« ^ooda morteaged. until default ( WheUr v. Mon- MORTGAGES AND SALES. 131 tefbre. 2 Q. B. 133 ; Albert v. Gvosvenor Invest. Co., L. R., 3 Q- B. 123). (h) The Act requires that, together with the Mortgage or con- veyance, must be filed an affidavit of execution thereof by a witness thereto. The words " together with" in this section mean not merely "also" but "simultaneously" or "along with" {Grindell v. Brendan, G C. B. N. S. C98 ; 5 Jur. N. S. 142; 28 L.J. (C. P.) 333). It is not stated how far this affidavit is required to go, or what it should contain. Though it be wide of technical form, it yet will be sufficient, so long as it shows the due execution of the instrument. The Act does not require that a Mortgage sliall bear date the day it is exe- cuted, and for this very reason it would lie better, if the Legis- lature required (which it does not) the affidavit of execution to disclose the time of such Mortgage being given, as is made neces.sary by the Imperial Act. It then would become expe- dient to insert the true date in the Mortgage (Beaumont on Bills of Sale, 39). The proof of the due execution under this Act is required for the same purpose as that required of con- veyances of land; namely, for the pui-pose of rejjfistration, and, it is for the clerk to satisfy himself of the sufficiency of the affidavit upon receiving an instrument to file. The intention of legislation requiring registration is primarily, that the public should have notice, and this notice is given when the instru- ment, proved by sufficient affidavit of execution, is filed by him. If the clerk should know the affidavit to be untrue in fact, he should n^,fc receive the instrument, and thus passively lend him- self to a fraud (DeForrest v. Bunnell, 15 U. C. Q. B. 370), and the clerk ought not to receive and file an instrument under the Act without an affidavit of execution (Orindell v. Brendon, 6 C. B. N. S. 698 ; 28 L. J. (C. P.) 333). Execution consists of three acts, viz., " Signing, Sealing and Delivery." The latter completes the efficacy of the deed and is from whence it takes effect, though there be a false, or impos- sible, or no date. If the affidavit should shew these three acts the Statute will be complied with. Attestation is not positivelj 132 MOUTGAOES AND SALES. essential to the exocution of a .Iced,. ..less it be requ.roa by d,« Ltlcular Statute or power under whid. the deed ,s execute Under the present seeti<,n, attestation i. ""y^<;;^-^7' ^^ -; ^re^ requires th. afildavit to be of a uitness tia^'to, no ^ nti^u .'nmde of sueh witru ss bein, re.,u,red o attest , o instrument. KobiuH.,.. C.J., ^.n Ann.lron,j .. A„^,n,n, U U C O B 498,) dis'.-ntcdv'M-yi^tronfrlyafraiMst tins view ottl.c law. holdiu^' that the expre^siou .f " a witness thereto, n.ant a« much a ^ub^eribin^ wU.os., a;, did the .-xpres^ou '' Nvunoss to the execution of sneU deed," ns used in Uu- lle^.stry Act; and as the latter had universally been understood t.^ mean a subscribing witness. ,so should the words us.d in the ,.rcsent section lUit the decision in that case was tliat attest.n- or subscribing, ul.ich are synonynu,us terms, was not neees..ary. An affidavit of execution tlierefore ouiittin- that portion which visually sUtes, " That the name subseribe.l thereto is ot i,ho handwriting of this deponent," v . dd still be suHicient, and th.> omission of the deponent's addition is no objection to the affidavit {Brodie v. Itultan, U U. C. Q. B. 207). Nor is it an obiection that the second Christian name of the deponent is not written in full, but the initial only given, and tliere is nothing in the Act which makes the affidavit inadmissable on this ground. If, in fact, the Mortgage is duly executed, the statute complied with, its objeet answered, an.l there be no sugges- tion of fraud, the Court will uphold a Mortgage, the witness to which makes affidavit that he saw both mortgagors execute, when, in fact, he only saw one {De Forrest v. BunneH, lo U C. Q B 370) Neither need the affidavit state the date ot the Mortgage, or on what day it was executed {McLeod v. Fortune 19 U C Q B 100). But an affidavit, sworn before a mayor ot a foreian town is useless {De Forrest v. Bimnell, supra; see. however, sec. 24, post ; Revd. Stat. O. cap. 62. s. 38). It may now be sworn before any Judg. - . Commissioner, or other p. -'on in or out of the Frovmce, aui zed to take affidavits m a ' MORTOAQES AND SALES. 133 lijeCoiirts of Qufovis Bench, or Common Pleas, or a Justice of the Peace (pout, sec. 24 and 41 Vic. cap. S, s. 12). Shouhl the party adiiiinintering the affiilavit omit to sign the jurat, the Mortgage will bo void {Argue v. McNeelky, C. C, Dean, J.; Ex -parte Hey- imiin, In re, Jieymann, h. R. 7 Ch. 488; N whet v. (hek, 4 App. K 200). • <.)n l!u' same reasoning, upon which a mortgage is void if Li:. (.'c^nmieSHioner neglect to sign the jurat, a mortgage will k void if the ju' at omit the word " Sworn," or the woid "Htihined," (per Dartnell, J.J). Affidavits of this nature will not bo treated with the .same particularity as affidavits used in proceedings before the Court. Objections which rest on a noncompliance in the affidavit, with certain rules of Court established to regulate the practice and proceedings thereon, are not sustainable, for in affidavits sworn under a Statute it is not necessary to conform to the technicalities required by rules of Court {Moyer v. Davidson, 7 U. C, C. P. 521 ; De Forrest v. Bunnell, supra, p. 132). It is interesting to notice that the Imperial Act is most particular regarding this affidavit, making it imperative that it should give a full description of the residence and occupation of the person making or giving the Bill of Sale, and the same also of the attesting witness. There must be a sufficient description of the grantor by residence to guide the person in his search (Briycjs V. Boss, L. R., 3 Q. B. 2G8 ; 37 L. J. ^Q. B.) 101), and the definition of occupation must be by the grantor's principal busi- ness in life (Tuton v. Sanoner, 3 H. & N. 280 4 Jur. (N. S.) 365), "Gentleman" is not a sufficient description of a person who has a ^'^'-"f i^Jj^'^.^J^J.^^' Wallace v. Cook, 5 Esp. IIH) urlesH it provule othei;wiHe II. b. (-) ^95 8 14 But indepcmleutly of any prov.-u, o the nrt'that the u.thonty .h Jl not bo vevoW.i by the oath of Ih person executing the samo, every payn.ont nuulo by, and every act don. under and in pursuance o any such authority thai notvvith:/.,.hding such death, be vahd. as respects every t^M t. such payn-nt, to whom the fact o the doa h wa not 1. own at the time of such payment, and as respecU In claiming under such person (R. S. 0. cap 95, s. lo> I nUl tlato Ak The Mortgages and Sales of Persona P..perty Amendment Act, 1880," it was necessary for the agent to ^ve a new authority, each time ho took, or renewed a Tolra^o but this Statute has nmde the n. cessary ameml- :tt 'enable an agent (on and afto. the 1st of Oc o^ 880), to take and renew mortages, on a fien^'-f^^^;" or that pun^ose (See post). We have -- j^^^^^) ^^^ „f treasurer of an insurance company can take a Moitgagc di^.o to himself, although ho has no benetic.a interest ,n i^e Mortgage whatsoever. When the Mortgage is taken .o tnc ^^^"'''= = affidavit of h ^m fdes be made by the company, then f the affi da ^^ ^^^^ ^ :Sr;^:^X:Uw^.^, me,!;ioned in ,. Statute ^ iw with the Mortgage the .lortgago will be held von (F. - hold L d-S Co. v. Bank of Covimerce, 44 U. C. K. -84). mi !rl"ld that the preside. .: the i-^iti^on a^ng .d a security, "does not act as an agent. He is exerci,.ig the coSate powers in the only way in which they can be exercS at 1 He acts directly and in d •. and no TZliL * * * The affidavit CO ' be tlnis considered 11 affidavit of the mortgagee mad^ t only way t^ xnortgagee could make the affidavit, na. iy,t. 'f-^^^^-- i3tvati ve officer" (Banh of Toronto v. McDon^alL 1'^ U^^^^^^' 475). But the manager of a company stands in a diffeent ZJiAon to its president. " The latter is one of the corporation, [he'chief partner, and in a sense its organ and representative. MORTGAGES AND SALES. 137 The manager is an exccutivo officer, not a corporator, a more agent, with certain specified executive functions, acting under the authority and direction of the president and board of directors." It is "impossible on any principle of construction to regard him in such a matter a.s in any other position than that of an agent" {per Hagarty, C. J., Freahold L. d; S. Co. v. /}(,/*/■■ of Commerce, 44 U. C. Q. B. 284) CJowan, Co. J. is reported to have decided that, under this section, where the payments to be made upon a chattel-n' "t- gage "extend beyond one year from the date of the mortgage, tiie mortgage is void as ctmtinry to public policy. Judge Gowanis stated to liave said in subsianec, when giving judgment, tliat as the security afforded by the mortgage under the Act "ceases to be valid " at the end of the year from its date, it could not, at \i' iccption, be mad ■ security foi- longer than a year, tliough a renewal of the securit is contemplated (O'NeiU v. Small cfe Shcrif, 15 Can. Law J" -v 114). But with the greatest defer- ence, the writer questions the soundness of this decision. In fact the opposite view has 1 ■ n taken by Ct)unty Court Judges. It would be difficult to . .uclude that the Legislature did not contemplate the case of a mortga.' ''oing taken under the pre- sent section for more than one yea. vhen by section six (post 160) i^uch a mortgage is expressly prohil'ited, and under the pre^^'nt section there is no such prohibition. 2. Such last mentioned affidavit (o ), whether of the mortRa- Cmitente^of gee{h) or his agent (c), shall state (d) that the mortgagor j,„'(j_^-^;^_ therein named is justly and truly indebted to the nortgagee in tl ' sum mentioned in the Mortgage (f), that it was execut- ed i.i good faith and for the express purpose of securing the payment of money justly due or accruing due (/), ami not for the purpose of protecting the goods and chattels (g) men- tioned therein against the creditors of the mortgagor (h), or of preventing the creditors of such mortgagor from obtaining payment of any claim against him (k). C. S. U. C. c. 45, s. 2. (a) It is not necessary that the affidavit of the truth of the debt and bona iidc>^. requi^od by this and section Q^ ^wova^ 138 MOnTOAGES AND SALES. should be made on the same day that the Mortgage is executed (Perry v. Rattan. 10 U. C. Q. B. C37) ; thodecinion in Per,^ v. Ruttan was under 13 i^ U Vic. cap. G2, the provision of which Statute was that tho Mortgage " shall be accoinpauied witli an affidavit of the mortgagee." The Statute was complied with, if tlu' affidavit accompanied the Mortgage when it was regis- tered By Con. Stat. U. C. cap. 4.5, the words "together with" were substituted for the wonl " aecnnipanied," making the latter Statute read according to the construction put by the (Jourt upon the words of the earlier Statute. The words "together with " mean " simultaneously " or " along with " (see section I 07i<«'foot note (h). So far from the objection taken in Perry w. Ruttan bein- fatal, the nearer to the moimnt 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, namely 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." A Court will not exact what a Statute does not re(iuire, where the effect would be rather to defeat than to advance the object which the Legislature hasm view {Perry v. Ruttan, 10 U. C. Q. B. G37). It is not necessai-y in affidavits sworn under a Statute, to conform to the techni- calities required by a rule of Court {Moyer v. DavuUon 7 U. C C P. 521 ; De Forrest v. Bunnell, 15 U. C.R. 370 ; Cobbettw- Old Field 1(5 M. & W. 4G9). Where, therefore, the jurat to the affidavit of bona yides used the words "sworn and affirmed;' without saying which of the two deponents swore, and which affirmed, and omitting the words severally the afhdavit was still held sufficient {Moyer v. Davidson, 7 V. C. C. i'. 5-ij. it is no obiection that the second Christian name of the deponent is not written in full, but the initial only given {De Forrest v. Bunnell 15 U. C. Q. B. 370), or that the deponent s addition is wanting {Brodie v. Ruttan, 16 U. C. Q. B. 207; .4 Uen v. Thmf MORTGAGES AND SALES. 13i^ e?iv. Th(y>nf- ,wi, 1 H. & N. 15; 2 Jur. (N. S.) 451 ; 25 L. J. (Exch.) 249). It in sufficient if the affidavit identifies the deponent as being the mortgagee or the mortgagee as })eing the deponent {Sladde7i v. Sergeant, 1 F. & F. y22, Willis J. ; S. P. Nicholaon v. Cooper, 3 H. & N. 384 ; 27 L. J. Exch. 392 ; Brodie v. Ruttan, 16 U. C. Q. B. 207). If the signature of the Commissioner, or other per- son before whom the affidavit is made, be omitted, the omission is fatal to the instrument, which will thereby be rendered in- valid as against subsequent execution creditors ; and this will be the ca.se, even though the omission of the signature be through inadvertence, and even though it be satisfactorily proved that the oath really was in fact administered, and in every respect the security bo an honest one. The Courts have uniforndy manifested a disposition to uphold an honest trans- action in preference to destroying it, on account of a slip or omission ; but " The Legislature has not been content that a Chattel Mortgage should bo merely stamped with good faith, but has required the mortgagee to pledge his oath to its character. Still further, it has recjuired this oath to be recorded in the form of an affidavit, which must be sworn before one of certain named officers Csee section 24 infra), and must then be tiled along with the Mortgage. This was obviously for the pur- pose of enabling creditors to satisfy themselves not merely of the existence of claims against the goods of the 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 at- tainment of this end it seems indispensable that it should appear that the affida\ it 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 authent' sated as sworn, is quite consistent with the supposition that at the last moment the mortgagee had shrunk from swearing to the neces- sary statements " {Nesbit v. Cock, 4 App. R. 200). The test as to the sufficiency of the affidavit is not, as haa ;£40 MORTGAGES AND SALES. been supposed, whether or not perjury could be assigned, "but whether the pkper filed with the Chattel Mortgage is such an Iffidavit as the Statute requires" (Neshit v. Cook supra ; see fecjina .. A^.^son,^^ U, C. C. P. ,,,^E.j.r^Hay^^^^^ L R. 7 Ch. App. 488 ; Bill v. Bament, 8 M. & W. 317). It might be, and sometimes is, the case, that the nature of the transaction between the parties is such, as not to be wit mi the application of the Statute, and it is ""P^ff l«^ ""f'] ^? circumstances forthe mortgagee tomake theaffidavit win h m section requires. No Chattel Mortgage can ^^ -S^^^^'^' ;. ?, out the affidavit, " and it would bo repugnant to reason to ho d that a Chattel Mortgage is within the Act. so ^s to ruake n.g - try with the county clerk indispensable to its validity, and jet that it is a Mortgage of such a kind, that the affidavit, posi- tively required by the Statute to be made m oixier o registra- tion of a Mortgage, cannot be properly made, or legally received, foTthe purpose of r3gistering it." If a Mortgage, otherwise egal, cannot be registered by reason that the directions oh se'cti;n cannot be complied with, then it cannot telelu illegal for want of registration {Baldwm v. BenjarmnlG U. C. ^. IJ. 52 ; Mathers v Lynch 28 U. C. Q. B. 354; Walker v. Mies, ^^S^The^^introduction, after the word mortgagee, of the words "or of one of the several mortgagees, or of the agent o the mortgagee or mortgagees" would improve this section, iheir Xence might encourage a contention that the requirements m th affidavit, when nilde by a mortgagee, or his agen, were not made necessary in (and their absence thus ^^^uld not invah date) the affidavit when made by one of several mortgagees or of the agent of mortgagees. „ii^„^A (c) Though the mortgagee, or his agent, only are mention d in this sectfon, it must not be understood that the affidavit ^ only be legally and properly made by the mortgagee oi u agent. He who is personally responsible to another forthe money he advances, may legally take a mortgage, by way of security for it. in his own name, and make the affidavit of bona MORTGAGES AND SALES. 141 fiJe>i required by this section ( White v. Broim, 12 U. C. Q, B. 477; Heu'urd v. Mitchell, 11 U. C. Q. B. G25). It matters not for whose business tlie advance is made. The Statute is not limited in its apjilication to transactions wherein the debt is clue absolutely to the mortgagee himself. There is nothing in the statute inconsistent with a Mortgage being given to, and the affidavit of bona Jides made by, a- person to whom th.,' debt is due for another whom he repre- sents, or for wliom he is acting, even though he have no beneficial interest in the transaction whatsoever. Hence it is^ that the manager or treasurer of a corporation can take a Mortgage direct to himself for a debt due to the corporation, and can make the affidavit required by this section ; but the more obvious and proper course would be, for the manager or treasurer to take the Mortgage to the corporation, in which event he would make the affidavit as agent, and a copy of his authority would require to be registered. This authority may now be a general one to take and renew Mortgages under the Act; until the late Act, however, a new authority had to be executed each time it was necessary to take or renew a Mort- gage. This needless procedure is now done away with (post). When, however, ihe president or piincipal officer of s corpora- tion makes the affidavit, he does not act as agent, " he acts directly and in chief, and net by delegation," and therefore the authority to an agent in such case need not be given {Taylor v. Aindie, 19 U. 0. C. P. 78 ; Brodie v. Ruftari, 16 U. C. Q. B. 207 ; Wych v. Meal 3 P. W. 310 ; Grant on Cor- porations, 57 ; Bank of Toronto v. McDougaU, 15 U. C. C. P. 475 ; Baldwin v Benjamin, 6 U. C. Q. B. 52). Ministers of the Crown may make the affidavit required by this section in Mortgages taken to them as the lieads of their respective departments, for and on behalfof the Queen (McOee v. Smith 9 U. C. C. P. 89). (d) Four things are required by the affidavit. (1) That the mortgagor therein named, is justly and truly J42 MORTGAGES AND SALES. indebted to the mortgagee in the sum mentioned in the Mort- ^*f2)'' That the Mortgage was executed in good faith and for the express purpose of securing the payn>ent of money so ^t) w'n^t'i^'F.rposo of protecting the goods a.i chitlt ielned the 'ein against the creditors of the Mort- %T Of preventing the creditors of such mortgagor from ob- tainincr payment of any claim agamst him. ^ , . , (TThc fii-st requisite of the affidavit of bona JuksmvoU,. th question as to what consideration will sustam a Mortgage Thi can best be ascertained by knowing under what state of ex^Tti g facts the affidavit of bona Jules can be properly made. A trtgagee. who assumes the debt of another renders him- selVliable fo^- it, and if he takes a Chattel Mortgage m secun^^ f m that othek for his own indemnity, can properly make affilvit as to all these four requisites. If it were no so. then f Mortgage taken under such fcumstances would not l.e within the Statute {Baldwin v. Bcnjamm, 10 UC. Q. li •>- . Jarker v. Roberts, 3 U. C. R 114 ; Swayne v. Ruttan, G U. C. "^AiSavitof bona >?.s attached to; ^-ttd M.^^^^^^^^ stating that the n.ortgagor was justly and truly -lebte th. mort-mgee in the .sum of £800, or " thereabouts, <^fMy t ^tki^ the Chattel Mortgage-' that the Mortgage was execu^l in crood faith and for the express purpose of secunng the paj „.rntofthe money sojustly due as aforesaid, -^ of -cnmg the (mortgagee) for lus said indorsement, and for the pui pose of protecting the goods against the credit- gagor" is sufficient where the Mortgage does .< the consideration, so that the true transaction b- ties is disclosed ( Valentine v. Smith, 9 U. L. C should the affidavit state that the mortgagor was justly m debted to the Mortgagee in the sum of .1.000 or t^^or^ and the consideration in the Mortgage be «1,000, it is douDt the mort- set forth n the par- )). But MORTGAGES AND SALES. 143 ful if the affidavit would be sufficient ; the words " or there- abouts" might easily enable a person, so disposed, to evade swearing to the indebtedness of the mortgagor in the sum mentioned in the Mortgage (Knox v. Meldrum, C. C, Dean J.). Where the amount is certain as to the consideration raen- tionecl, it matters not that the recital contemplates the possi- bility of the mortgagor becoming indebted to the mortgagee in a still larger amount, which it is the intention to secure. Therefore the consideration in the Chattel Mortgage being stated as £10,000, and upvrards, it was held good because it was certain as to the £10,000, and it was not shown that there were more gooda than would satisfy that amount (McGee v. Smith, 9 U. C. C. P. 89 ; Bkldidph 'v. Goold, 2 N. R. 420 ; 11 W. R. 882). In the case of a debt, the debt must be a bona fide subsisting one ; such a del)t is a valuable and sufficient consideration for a Moi-tgage {North v. ^rowell, 10 N. H. 151 ; Coohj V. Hohart, 8 Iowa, 358; DnWolfv. Strader 26 111. 225,' Maitland v. Citizen's National Bank, 40 Md. 540). 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 (Robinson v. Patterson, 18 U. C. Q. B. 55). 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 value of the property mortgaged, it becomes a suspicious circumstance, that the mortgagor intended to embrace every- thing in the Mortgage for a purpose, and though the bona fides of the debt be not disputed, it is a question for the jury whether these circumstances are not sufficient to show that the deed was made, not for the security of the assignee, but for the pur- poses of the debtor, and to shield his property from other credit tors (Fleming v. McNawghton, 16 U. C. Q. B. 194 ; Twyne'a case, 3 Co, 81 ; Benton v. Tliornhill, 7 Taunt 149, 2 Marsh, 427). (/) It ia not absolutely necessary that the money should all be advanced from the mortgagee to the mortgagor at the time of the execution of the Mortgage, or the making of the affidavit I 14j4 mortgages and sales. of bona fides. It is sufficient if tho consideration is due a. the date of the Mortgage ^Beecher.. Ar^Un, 21 U- <^- ^; • ^^J. A Mortc^age, given to secure a ,nortgaj;eo n, a debt that is baned by th'e Statute of Linutations is .till a valul security as agams creditors iMurillo v. S.ift, 18 Conn. 208). Where a Chattel Mortgage is given by the mortgagor to the mortgagee to secure an existing lebt which the mortgagor has the option of repay- ing accorling to the proviso for redemption, e.thev m money o" ome other commodity, the affidavit, nn.. :r thn section of tie indebtedness of the mortgagor to the mor gagee m the urn mentioned, is sufficient, and the fact that the de easan e dale in the Mortgage, providing for the repayment of t^. MorL.e,in the smn advanced, or in some other commod.ty, and ref"erring to another agreement between the parti s as Iwnc^ the manner in which such other connnodity .. to be de iver^d, none the less requires the affidavit to be made un e. th secti n, and the Mortgage can be still upheld agamst the inis sei-tiuji, D J transaction objection that it does not truly shew t t tea ^ between the partie. {Beeclwr v. AasUn, 21 U. C. C. T. 3.3J Clarlc V. 5« ^21 U, C. C. P. 348; Baldwu. v. Benjarmn, lb ^Wh^nfhe Mongage transaction is one in winch a loan is „.ade by and securld^to the mortgagee, by the mortgagor, t e MortJe is properly taken, and the affidavit correctly mad, whfr: the anLmt of the loan is made up. m part of a note made and given by the mortgagee to the mortgagor, at th. Umt of the'execution of the Mortgage, even though i ,s no paid for some months afterwards (Walker ..Ndes 18 Or 2 ^ It is not necessary that the affidavit should state eithei the debt to be wholly due. or wholly accruing due, or pr.rtly on and partly the other, according to the circumstances ot the cLe but i^ is sufficient when it states that the Mortgage was "ecuted for the purpose of securing the payment of the mon^) so justly "due or accruing due," being ^^-^^^^;f ''" terms of the Act {Squair v. Fortune, 18 U. 0. Q. B. a4. . {g) The words "estate and effects" are more comprenuisi MORTGACJES AND SALES. 145 than the words "goods and chattels," ti-e former including be- sides the latter, realty debts and ohoses in action; therefore where an affidavit of bona fides to a Mortgage states that it «-as honajule, &c., &e„ and not for the purpose of holding, &c the estate and effects mentioned therein," instead of ''the .'oods and chattels," the substituted woru. sufficiently comply with the Act {Mason v. Thomas, 23 IT. C. Q. B. .'^05). {h) The omission in the affidavit to state that the Morto-age was not made for the purpose of protecting the goods "a<^rinst the creditors of the mortgagor" is fatal to the sufficiency of the athdavit {Boulton v. l^mith, 17 U. C. Q. B. 404). An affidavit that the Chattel Mortgage was not made for the purpose of preventing the creditor " instead of creditors of such mortgagor obtair.n.^ ;.:.yment of any claims against him," is insufficient, even . -.v-l „ae ouM.ssion of the letter "s" be a mere mistake by the person who wrote the affidavit. It being the duty of the Court to guard against any artful attempts at evasion, by insisting upon such affidavit being n ade as the Statute requires {Har. fa., placed in the hands of the Sheriff between its date and its registry, would therefore cut it out (Feehan y. Bank of Toronto, 10 U. C. C. P. 32 ; Haight v. Mclnms, 11 IJ- C C P. 518; Shaw v. Gault, 10 U. C. C. P. 236). But the Court of Queen's Bench held differently (Feehan v. Bank oj Tor- onto 19 U. C. Q. B. 474) ; and can it be argued, that the Statute made void an instrument (as against creditors) registered within the period allowed by Statute, by reason of a writ being placed in the hands of the Sheriff prior to the registry of the instniment, the Statute all the while negatively saying that i such instrument is registered within the time limited, it shall be valid as against creditors of the mortgagor. The ruling of the Court of Common Pleas seems to be the same as that of some of the States of the Union. As to creditors, subsequent encumbrancers and purchasers,aMortgagi! with them takes effect only from the time of its delivery to the Recorder (Doe V. Bank, 3 McLean, 140 ; Frederick v, Barr, 3 Ohio fe. 47 ■ TousUy V. Tousley, 5 Ohio S. 78 ; Corvallv. Dumll,2 Ark. 1 , Brovmv. Kirkinan. 1 Ohio S. 116 ; McOee v. Bentley, 8 Ohio MORXaAGES AND SALES. 147 S. 396). The English Courts, however, favour the views taken by our Court of Queen's Bench. Under the Imperial Act (17 and 18 Vic. cap. 36), a period of twenty-one days was allowed an jussignee to perfect his title by registration, and a Bill of Sale not registered, was yet valid as against a seizure by the ShenfF, until twenty-one days had elapsed {Marples v. HaH- ley, 30 L. J. Q. B. 92 ; Banbury v. White, 2 H. & C 200 2 N R. 286). The 17th and 18th Vic. cap. 36, has been' repealed and the time within which an instrument must be filed under the Imperial Act, is reduced now to seven days (41 and 42 Vic A\ 31, Imp. Act). 4. In case such Mortgage or conveyance (,t) and affidavits {}>) Unless regi.- are not registered, as hereinbefore i.rovided (c), the Mort-raae '*''^^'' "nort. .r conveyance shall be absolutely null and void as agains^rf) l^l^l^^^^. -editors of the mortgagor (e), and against subsequent pur- chasers or mortgagees in good faith (/) for valuable consid- eration {g). C. S. U. C. 0. 45, 8. 3. {a) It will be observed that the Mortgage, or conveyance, re erred to m this section. Is "the Mortgage, or conveyance intended to operate as a Mortgage," mentioned in the first sec- tion, yet, whde the latter section permits a true copy to be registered, this clause makes no reference to such. It there- fore would be safer, in all instances, to register the original Mortgage itself. ^ (A) The affidavits are — Ist. The affidavit of execution (see section 1). 2nd. The affidavit of bona fides (see section 2.) (c) This clause refers to what has gone before for information as to registration. Section 1, however (the only clause having any reference to registration), provides merely that the re-is tration shall be within five days, and there is nothing prior to section 7, 'infra, giving instructions as to how the Mortga-e is really to be registered. (rO There are three classes of persons, as against each of which the Mortgage shall be absolutely null and void These are — let. Creditoi-s of the mortgagor. 148 MORTGAGES AND SALES. 2nd. Subsequent purcha.sers in good faith for valuable con- sideration. 3rd. Mortgagees in good faith for valuable consideration. The reason "of the Statute declaring void a Mortgage, &a against these three classes of persons, unless its requisites are complied with, will appear obvious, when it is considered for a moment how easily a dishonest person could continue an assumed credit, by being the apparent owner of considerable effects, whilst, in reality, ho owed upon them more than hb could pay ; and how easily honest traders might be defeated in their just rights by fraudulent encumbrances put upon a debtor's property. In the absence of fraud, at Couimon Law, a Mortgage would be valid against subsequent bona jide purchasers, even thougb the Mortgage was not registered, and the mortgagor remaiueii in possession. But the written law now requires possession oi registration. One or other of these requisites must exist, and he who fails in both, must suffer for improperly enabling another to appear to the world as absolutely owning property which in reality he does not. Between the mortgagor and the mortgagee, however, no injury could result from a non-compliance with the statutory requirements ; and, there- fore, so far as they are concerned, and all claiming unde- the mortgagor, the administrator, or the representatives of the mortgagor, or as against any other title inferior to the Mortgage (except a subsequent Mortgage or sale recorded prior thereto\ th€ Mortgage is valid without change of possession or registra- tion, and it is valid s^s between the parties to it, even though it was executed by the mortgagor to the mortgagee with the express intent to defraud, hinder and delay the creditors of the mortgacror {Robinson v. McDonald, 2 B. & A. 134; Bonghton V. Bonghton, 1 Atk. 025); and it will be valid and effectuaUs against any person consenting to it {Steel v. Brown, 1 TamU, 381 ; see Oliver v. King, 1 Jur. N. S. 106G). Neither party to the instrument could succeed in invalidating the instrument when they each combined with the other to commit a fraud MORTGAGES AND SALKS. 149 '"A man cannot set up an illegal act of his own, in order to avoid hiH own deed," and " no man shall set up his own in- iquity, as a def )nce, any more than a cause of action" (Scohle v Hemon, 12 U. C. C. P. 65 ; Wam v. Brooks, i\ Ves 612 • Cot- hngton v. Fktcher, 2 Atk. 155, G ; Cnrth v. Perry 6 Ves 739 747 • Montefiovi v. Montejiori, 1 W. Bl. 364 ; Ilawes v. Leader Cro. Jac. 270 ; Phdpotts v. Philpotts, 10 C. B 85 • 20 L J (C P.) 11). ■ • . . yy.. But a« regards the three cksses of persons above mentioned the law is very different. The Mortgage, as to them, can only be made effectual by registration, or change of possession of the property mortgaged, either of which occurrences, the Statute m effect, settles, as being sufficient and proper notice to those classes of persons who might be prejudiced were they not put upon their guard. But, though tlie object and effect of registration is to give notice to all those who desire to avail themselves of the opportunity given them by Statute, it does not follow that because notice is given by registration, the Mortgage is nevertheless valid. " The Act was passed, not with a view of making good a title, which would not have been good before " the passing of the Act, but simply for the protection of creditors, purchasers and mortgagees (May on Fraudulent Con- veyances, p. 120 ; Mercer v. Peterson, L. R. 2 Ex. 304 • Darvill V. Terry, 6 H. & N. 812 ; Oriental Bank v. Coleman, s'oiff 11 • Re Daniel, ex parte Ashby, 25 L. T. 188). Unless the Mortgage, when registered, complies in all par- ticulars with the re(,uisite technicalities of the Statute it will be invalid. Hence for example it is, that, should a Mortgage not «M)ntain a sufficient description of the goods mortgaged it yet 1,. void as against subsequent purchasers in good faith and notice of s.ich a Mortgage to the purchaser will not affect his nght{Mofatt V. Cmlson, 19 U. C. Q. B. 341 ; Edzcardsv. Eng- • .7E. &B. 564 May on Fraudulent Conveyances, p. 120- l^Qtb^y. Manr,,xg, 9 East 7l). In the States, where a btatute provides f..,- a change of possession or registration in order to give a Chattel Mortgage any validity against subse- 150 MORTGAGES AND SALES. quent purcliascrs or creditors, no notice of a Mortgage hi .vcver full or formal will supply the place of registration (Robhmn V. iVilloiighby, 70 N. C. 358; Bevanfi v. Ballon, 31 M. 437) ; and this is the same, under our Act, as the result of its declar- ing all instruments, covered by the Act, absolutely null and void unless registered according to its provisions (sec. 4 supra). (e) By creditors of the mortgagor is meant any one to whom a debt is owed by the mortgagor. It makes no difference whether the debt be one created by the mortgagor before or after the execution of the Mortgage (Graham v. Farher, U C. B. 410, 23 L. J. C. P. 51 ; Ex parle Sltvenn, L. R. 3 Ch. D. 807; Mackay v. Douglass, L. R. 14 Eq. 106 ; Kidney v. Coussmaker, 12 Ves. ISGper Lord Hardwicke, Walker w. Burrovs, 1 Atk.Ot; Beaumont v. Thorpe, 1 Ves. 27 ; Taylor v. Jones, 2 Atk. 601 , Jenkyn v. Vaiujhan. 3 Drew, 425), and the creditor must be an opposing creditor (Bavl '^/Montreal y. McWhirter, 17 U. C.C. P. 506). But the Stu? ulC: does not make void the instrument as against "strangers" i'.i^^ not coming within any of the three classes of persons u..rttiainee (/i), or his agent duly authorized in writing to take uch conveyance (a copy of which authority shall be attached to such convey- Sale of goods nut attended with delivery, shall be regis- tered, or else void as again- st creditors of Vendor. IMAGE EVALUATION TEST TARGET (MT-S) k A (./ 'M /- % X ^ 1.0 I.I ■- IIIM • 5 '""^= ^ 1^ IL25 III 1.4 1= 1.6 V] <^ /i / PhoiDgraphic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 Ua 152 MORTGAGES AND SALES. ance) (k) that tb jale is bona fide and for good consideration (as set forth in tne said conveyance) and not for the purpose of holdinjj or enabling the bargainee to hold the goods men- tioned therein against the creditors of the bargainor (l), and such conveyance and affidavits shall be registered as herein, after provided (m), within five days from the executing thereof (n), otherwise the sale shall be absuiutely void as against the creditors of the bargainor, and as against subse- quent purchasers or mortgagees in good faith (o). C. S. U. C, c. 45, s. 4. (a) In all instances in which, for a valuable consideration, the absolute beneficial interest passes from seller to buyer, there exists a sale within the meaning of this section (Stephenson v. Rice, 24 U. C. C. P. 245; 2 Bl. 446; 2 Kent, 615, 11th Ed.; Williamson v. Bernj, 8 How (U.S.) 544 ; Gardner v. Lane, 12 Allen, 39). The question of property passing is generaUy one of intention (Ogy v. Shuter, L. h. 10, C. P. 159 ; Stephenson v. Rice, svpra). To constitute a valid sale, there must be a concur- rence of the following elements, viz., 1st, parties competent to contract; 2nd, mutual assent; 3rd, a thing, the absolute or general property in which is transferred from the seller to the buyer; and 4th, a price in money paid or promised (Benj. on Sales, 2). The words " ever> sale" are in no way restrictive, and embrace sales upon trusts, as well as others, assignments or sales, absolute or conditional, subject or not subject to any trusts, bills of sale, transfers, grants, declarations of trusts without transfers, and other assurances of goods and chattels, agreements for future Bills of Sale, and covenants for right to take possession. An inventory of goods with receipt for purchase money attached, the vendor remaining in posses- sion of the goods is a sale in writing within the Act (Ex parte Cooper, in re Baum, L. R. 10 Ch. D. 313; Ex parte O'Dell in re Walden, L. R. 10, Ch. D. 76). Whilst the Imperial Act (17 & 18 Vic. cap. 36) excepts from its operation assign- ments for the benefit of creditors, our Statute gives no indication of what it includes, except what can be gathered from the words "every sale of goods and chattels," and it has MOKTGAGES AND SALES. 153 been held that assignments, for the benefit of creditors are comprehended by the Statute (Heward v. Mitchell, 11 U. ('. q. B. 625 ; Hai-ris v. Com. Bank, 16 U. C. Q. B. 437). But, a Bill of Sale, by the SheritF, of an execution debtor's goods to a purchaser, whether he be plaintiff in the execution or not, is not within the operation of the Act (Kissock v. Jai^is, 6 U. C. C P. 393; and see Woodgate v. Godfrey, L. JR. 4 Ex! D. 59, L. R. 5, Ex. D. 24). The Statute, not applying to Bills of Sale made by the Sheriff, what rights have creditors of the execution debtor, when the latter, after the Sheriff's sale, con- tinues in possession, as theretofore ? To ascertain this, reference must be had to the common law (Paterson v. Maughan, 39 U. C. Q. B. 371; Baldwin v. Benjamin, 16U.C.Q.B.52). In case goods are left in the possession of a debtor, it is a question for a jury, whether the tranaction was fair or fraudulent ; whether it was a bona fids sale, and the money really paid by the purchaser or whether it was in fact paid by the debtor, and whether it was a colourable transaction (Latimer v. Batson, 4 B. & C G52) ; in Edwards v. Harben, 2 T. R. 587, the Court were all of the opinion that "if there be nothing but the absolute con- veyance without the possession that, in point of law, was fraudulent." But in Kidd v. Rawlinson (2 B. and P. 59)' Lord Eldon pointed out the difference between Edwards v. Harhen (which wa^ cited as jyi authority), and Kidd v. Eaivlinsov. la the former case the transaction was between the debtor, himself and his creditor, in the latter case it was not so, but the goods were purchased at a public sale by a person who had never acquired the character of a creditor, and were then lent to the original owner for a temporary and honest purpose. The facts in Kidd v. Rawlinson were as follows :— " An exe- cution having issued against the goods of one Auburn, his fur- niture was taken and put up for sale by the Sheriff of Surrey, The plaintiff, who was Auburn's brother-in-law, but not a creditor, became the purchaser, and a Bill of Sale was made to him. He allowed Auburn to keep possession so as to be able to carry on his business ; but Auburn, afterwards being 154 MORTGAGES AXD SALES. arrested for debt, made a Bill of Sale to the defendant, who- took possession and sold, after having received a notice from the plaintiff of the latter's prior title. On an action by the plaintiff for money had and received by the defendant. Lord Eldon desired the jury to say what they considered was the object of the Bill of Sale, and whether there was any fraud between the plaintiff and Auburn, and they, being of opiniou that there was no fraud, but that it was intended that the Bill of Sale should be a security for the moiiey advanced to the Sheriff, the plaintiff got a verdict." It follows then, that if goods, sold at a Sheriff's sale, be left in the possession of the execution debtor, unless the transaction be a fraudulent and colourable one, the real owner, who purchased at the sale, can- not be defeated in his title, from the fact alone of possession continuing with the execution debtor. And if fraud exist, filing the Bill of Sale, according to the Statute, will not better the transaction, for the Act is not intended to make vahd an invalid transaction. (6) For what are goods and chattels, see ante section 1, note(c) (c) For information as to the construction of the words, " not accompanied by an immediate delivery, and followed by an actual and continued change of possession," see ante section 1, note (e). (d) It is difficult to imagine what reason the Legislature had in providing that the sale " shall be. in writing," more especially as the words do not appear in the first section relat- ing to Mortgages. The word " writing" includes woids printed, painted, engraved, lithographed, and otherwise traced or copied (Revd. Stat., Ont., caj). 1, s. 8, sub-s. 14). If the words "shall be in writing," were omitted, could a sale of chattels by parol without a change of possession be held valid, when the Act re- quires every sale to be registered ? The requirements of the Act could not be complied with, if the sale be by parol, and it would be no answer to make, that because registration was impossible, it therefore became unnecessary {Cummings v. Morgan, 12 U. C. Q. B. at page 567). ion 1, note (c) ■ the words, followed by 1," see ante i Legislature dting," more section relat- jTOi'ds printed, ced or copied words "shall btels by parol n the Act re- ments of tlie jy parol, and istration was jummings v. MORTGAOES AND SALES. 15S - (e) The writing shall comply with all the provisions of the Act. if) See section 1 note (h). (g) The affidavit of execution need not be by a subscribing witness (Aiimtrong v. Ausnmn, 11 U. C. Q. B. 498), and it need not be made upon the same day as the Bill of Sale is executed but will be sufficient if made at any subsequent period, in time to file the instrument within the five days limited by Statute lor that purpose, and it is no objection to the affidavit that it Joes not state the date of the Bill of Sale, or on what day it was executed {McLeod v. Fortune, 19 U. C. Q. B. 100). See also section 1 a7ite, note (h). (A) For affidavit of bargainee see also ante section 1, notes (k) and (1). As power is given by section 1 to an agent of a mort- gagee to make the affidavit of bona fides, so in this section, is power given to the agent of the bargainee to make a similar affidavit. It will be observed though, that a like amendment as was r de to sec. 1, by 40 Vic, cap. 7, Sched. A (134), giving by exprtss enactment, power to one of several mortgage .3 or to the agent of mortgagees, to make the affidavit of bond fides was not made to this section in favour of one of several bar- gamees, or to the agent of bargainees. The Courts.ho wever, have held that, when there are more bargainees than one, the affi- davit, to accompany registration, is sufficient if made by one of the bargainees (Heward v. Mitchell, 11 U. C. Q. B. 625- Olm- stead V. Smith, 15 U. C. Q.B. 421). , And it still is Sufficient when maae by one of them where the conveyance is to two', jointly, and the consideration is made up of two debts due to' the vendees separately (McLeod v. Fortune, 19 U. C. Q. B. 100). And it is also sufficient if made by the agent of the bargainees. (k) Under this section, not only must the agent's authority te registered with the conveyance, but the words of the Act are that " it must &c. be attached thereto." The latter is not required in the case of an agent of a mortgagee, taking the affidavit under sec. 1, but, in the case of a Mortgage, the agent is required by Statute to be aware of all the circumstances If i i 156 MORTGAGES AND SALES. connected with the tranaaction, a requirement not expressed to be necessary in the agent of a bargainee under this section ; though, however possible it might be for an agent, properly acting under this section, not to bo fully aware of all the cir- cumstances in connection with the taking of the conveyance, it would be difficult to perceive how he could honestly make the affidavit without possessing a full knowledge of all the circum- stances. By 43 Vic. cap. 15 (post) an agent may, on and after the first day of October, 1880, take a particular conveyance under the Act, on a general authority from his principal tf) take all conveyances, under this Act, for him. (I) The affidavit of bona fides must state : 1. That the sale is bona fide and for good consideration (as set forth in the conveyance). 2. That it is not for the pui-pose o* holding or enabling the bargainee to hold the goods mentioned therein, against the creditors of the bargainor. Not only is it necessary that the sale should be bonafide, but it must be for good consideration, so when the affidavit accom- panying the assignment states that it was " made bona fide," but omits the words " for good consideration," the assignment can- not be upheld (Mason v. Thomas, 23 U. C. Q. B. 305 ; Holvm v. Penny, 3 Kay & J., 90 ; 3 Jur., N. S. 80 ; 26 L. J. Ch. 179); and the words " that the Bill o^" Sale was executed in good faith, and for good consideration," when the affidavit should state that the sale is bonafi.de, and for good consideration, ren- ders the instrument invalid {Boynton v. Boyd, 12 U.C. C. P. 337.) The bona fides to be considered is that of the pereon from whom the consideration moved (per Wood V. C- Holmes v. Penny, 3 K. & J. 90 ; see also Thompson v. Webster, 4. Drew, 628; 4 DeG. & lo. 600 ; 7 Jur. N. S. H. L. 531 ; Comiah v. CTa4e,L. R;14Eq. 184). So the conveyance must shew the true and full consideration for which it is given. Hence it was, that an assignment (reg- istered under the Statute) for the nominal consideration of five MORTGAQES AND SALES. 157 shillings, with a separate declaration of trust, referred to, and forming part of the instrument (but not registered), was held invalid {Praser v. Gladstone, 1 1 U. C. C. P. 125 ; Arnold v. Robertson, 8 U. 0. C. P. 147). Marriage, being the most valuable of all considerations, is the highest consideration recognised by law (Townshend v. Wind- liam, 2 Ves. Sen. 4; Ford v. Stuart, 15 Beav. 495, 499 ; 1 Bl. Com. 421 ; Dalrymple v. Dalrymple, 2 Hagg. Con. 54, G2 ; 1 Broom Com. 523 ; 2 Steph. Com. 260) " and one which it is the policy of the law to give paramount force to " (May on Fraudu- lent Conveyances, 315) and is a good consideration for a con- veyance under the Statute (Leys v. McPherson, 17 U. C. C. P. 266, see Ex parte Marsh, 1 Atk. 158 ; Brown v. Jones, 1 Atk. ]87;Lanoy v. DuJce of Atliol, 2 Atk. 445 ; Champion v. Cotton, 17 Ves. 264 ; Colombine v. Penhall, 1 Sm. & G. 240 ; Fraser \\ Thompson, 1 Giff. 49 ; Bulmer v. Hunter, L. R. 8 Eq. 46 ; Re Glint, L. R. 17 E. 115 ; RusscH v. Hammond, 1 Atk. 15 ; Arun- (iell V. Phipps, 10 Ves. 139 ; Ward v. Shallet, 2 Ves. 18 ; Rams- den V. Hylton, 2 Ves. 308). But a blood consideration, or a consideration of natural love and affection, ig not a good consid- eration within the Act (Mattheivs v. Feaver, 1 Cox, 280; Twyne'» case, 3 Rep. 80; 1 Sm. L. C. 1). The words " not for the purpose of holding or enabling the bargainee to hold the goods, &c., against the creditors of the bargainor," 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 goods for the benefit of the bargainor against his creditors " [Arnold v. Robertson, 8 U. C. C. P. 147). Where an affidavit, accompanying an assignment for registration, stated that the deed was not made for the purpose of enabling the assignor (in- stead of the assignee as required by Statute) to hold the goods, against the creditors, the assignment was held bad; for, though it might he a mere clerical error, the Court, by accepting such an aflSdavit, might be assisting in an unintentional evasion of the Statute. 158 MORTGAGES AND SALES. 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 {Maaon v. Thomas, 23 U. C. Q. B. 305). Though there be two bargainees, and the affidavit of bona fides states that the " conveyance was not for the purpose of enabling the bar- gainee to hold the goods against the creditors," &c , the instru- ment will not be made void {Tyas v. McMasfer, 8 U.C.C. P.446), but should the word "creditor" instead of "creditors" be written in the affidavit the conveyance is void (Harding v. Knowhon, 17 U. C. Q. B. 564). See foot notes to sec. 2. (m) The conveyance, with the affidavit of bona fides, and affidavit of execution, shall be registered as provided by section 7, infra. The question whether a copy of a Bill of Sale, with the necessary affidavits, can be filed under this section, in substi- tution of the Bill of Sale itself, came up for the opinion of the Court in Harris v. Com. Bank, 16 U. C. Q. B. 437. McLean, J., there concurring with Robirson, C. J., in his remarks, that this section should be read in conjunction with section 1 and other sections of the Statute, all of which bore upon the question. Robinson, C. J., in that case, said, " We must consider that the copy will give as full information of the fact of the assignment, and of the contents, as the original deed would do, though the opportunity is not aftbrded of inspecting the signatures of the parties, which is not, however, the object of any of our registry laws." Bums, J., on the other hand, was of opinion that the registering a copy was not a compliance with the Act. The 13 & 14 Vic. cap. 62, which put sales upon the same footing with Mortgages, as to registration, amended 12 Vic. cap. 74 by adding to section 1 the portion relating to sales. But 20 Vic. cap. 3 makes a distinct and different clause of that part of the Statute relating to sales. Under the repealed Acts the ques- tion never was decided, and Burns, J., in his judgment, say,s, " The new Act, as I read it, clearly draws a distinction between Mortgages and sales. * « * This section applies exclu- MORTGAGES AND SALES. 159 lively to sales, and it enacts that the conveyance shall be accompanied by an affidavit of the bargainee that the sale is bona jkle, and shall be registered as thereinafter provided. Not a word is said about registering a copy, or any such provision with regard to the affidavit of execution, as in the case of Mortgages. * * * Whatever nmy have been the reason for making the distinction between Mortgages and sales, it is apparent to me that it exists, and that the con- veyance or sale of the goods must be registered and not merely a copy. The affidavit of the execution filed in this instance is that of the execution of the original, of which the copy annexed purports to be a copy. This is no compliance with the provisions of the second .section of the Act, unless that section is to have incorporated with it the provisions of the first section relating to a different subject altogether. No warrant exists for .such a construction. In my opinion the provisions of the two sections are distinct, and each complete in itself without reference to the other, and if the Legislature had contemplated that a copy of the conveyance of sale might be registered, instead of the original deed, the section might either have referred to the other, or have re-enacted the same provision with respect to the affidavit of execution. It is very true the second section does say that the conveyance of sale shall be in writing, and shall be a conveyance under the pro- visions of the Act ; but then that applies to the deed itself, what it shall be, and not to any copy, and cannot incorporate with it the idea that registration is also part of the con- veyance. "It must be assumed, 'therefore, as Ttake it, that it was in- tended that notice to the public, by means of registration of the dispositions of property should be different without our endeavouring to find satisfactory or sufficient reasons for it." («) As to the period of five days, aeeante section 1, note (g). (o)As to creditors, purchasers, "etc.," against whom the con- veyance shall be void. See ante sec. 2 and sec. 4. 160 MORTaXQES AND SALES. Mortgsge* of 6. (a) In case of an agreement in writing for future aUvaucei "^dvln^'OT^to W ^or the purpose of enabling the borrower to enter into and judemnify en- carry on business with such advances (c) the time of re-paynient be'v"'vTidif*duly thereof not being longer than one year from the niakint; oi regiiitered. ^j^^ agreement, and in case of a Mortgage of goods and clwt- tels for securing the mortgagee repayment of such advances, or in case of a Mortgage of goods and chattels for securing the mortgagee against the ondorsonieut of any bills or promis- sory notes, or any other liability by him incurred for the mortgagor, not extending for a longer period than one year from the date of such Mortgage (88 • Paine v. Benton, 32 Wis. 591 ; Tomley v. TouHlcy, 5 Ohio s' 78; Porter v. Smith, 10 Vt. 492; Gill v. Pinneij, 12 Ohio' S. 7H;Eitcheson v. Richardson, 1.9 Cal. 33 ; North v. Couvll, 11 N. H. 251 ; Allan v. Lathroi}, 43 Ga. 133 ; Ttdley v. Smith 24 Conn. 314. (h) As to the affidavits see ante s. 1, note (/<) .sec. 2, note (a), (i) An agent is empowered to take Mortgages under this section ; but (1) The agreement must be entered into by the agent, (2) The agent must be authorized in writing to make the agreement and to take the Mortgage. (3) Theagent must be aware of all the circumstances con- nected therewith and must make the affidavit of bona fides. It will be noticed, that there is nothing in this section ex- pressly requiring the written authority to the agent, or a copy thereof, to be filed with the Mortgage as is made necessary by sections one 1 and 5 supra. Nevertiieless it is deemed advisable always to register the authority, as if the Mortgage had been taken by the agent under the first section of the Act, for it cer- tainly is within the spirit of the Act that the authority should bo registered. This authority may now bo a general one to the agent to take and renew all or any Mortgages. The Act so pro- viding however does not come into force until the first of October, 1880 (see post). (i) The affidavit of bona fides, whether by an agent or the mortgagee, must accompany the Mortgage when registered. The word "accompany " is here used in the same sense as that 168 MORTGAGES AND SALES. in which the words " together with " are used in section one, meaning " simultaneously," or " along with " {Grindell v. Bren- dan, 6 C. B. N. S. 698 ; 5 Jur. N. S. 1420 ; 28 L. J. C. P. 333). (k) The affidavit must state : — (1) That the Mortgage truly sets forth the agi'eement entered into between the parties thereto. (2) That it (the Mortgage) truly states the amount of the liability intended to be created by such agreement, and covered by such Mortgage. (3) That such Mortgage was executed in good faith, and for the express purpose of secu)'ing the mortgagee repayment of his advances or (in the event of the Mortgage being as security against endorsements or other liability) that such Mortgage was executed in good faith, and for the express purpose of .se- curing the mortgagee against the payment of the amount of his liability for the mortgagor. (4) That the i\rortgage was not executed for the purpose of isecuring the goods and chattels mentioned therein, against the creditors of the mortgagor, nor (.5) To prevent such creditors from recovering any claims which they may have against such mortgagor. Unless a Mortgage is filed with an affidavit embracing all these five requisites, it will be absolutely null and void as against creditors p.nd subsequent purchasers and mortgagees. " The Legislature expressly requires that in the affidavit the amount of liability intended to be created should be stated" (per Gait, J., Kough v. Price, 27 U. C C. P. 318). In that case the Chattel Mortgage was given to secure the mortgagee again.st his endorsement on certain notes which were set out, and all payable within the year ; but the Mortgage recited that it was executed as security, not only against these notes, but also against any note or notes thereafter to be endorsed by the mortgagee, for the mortgagor's accommodation, by way of renewal of the said recited notes, or otherwise; and the proviso was for the payment of the said notes, and all and every other note or notes vhich might thereafter be endorsed by the mort- MORTGAGES AND SALES. 169 ment entered gagee for the mortgagor, by way of renewal of the aforesaid note or otherwise ; and the covenant was to pay the said note, and all the future and other promissory notes which the said mortgagee should thereafter endorse for his accommodation. The aftidavit oUonaMes, made by the mortgagee, stated that tlie Mortgage "was executed in good faith, and for the express purpose of securing me against the payment of the amount of such hab.hty, for the said mortgagor, by reason of the said promissory note there recited, or any future note or notes which I may endorse for the accommodation of the parties of the first part, whether as renewals of the said recited promis- sory note or otherwise." It was stated that tlie latter expres- sion could have no reference, except to the future endorse- ments mentioned in the covenant, and therefore that the affi- davit was defective in not stating " the amount of tKe liability intonded to be created by such agreement and covered by such Mortgage a. 318). Where an affidavit stated that the Mort- gage was made to secure a mortgagee against the payment of suchhabihyo instead of "for the mortgagor," by reason of the notes the language was held to be equivalent, and an objection that the liability referred to was that of the mort- gagor mstead of the mortgagee was overruled- {Mathers v Lynch, 28 U. C. Q. B. 3.54). An affidavit will be insufficient which complies m all respects with the requirements of the section but omits the words "against the creditors of the mortgagor" in that part wherein it is necessary to state that the Mortgage was not executed for the purpose of securino- the goous and chattels mentioned therein "against the creditors of the mortgagor." And it will make no difference that the imi.ssion was unintentional {Boulton v. Smith 17 U C O B 400, affimed in appeal, 18 Q. B. 458). No effect will be gh-en to the objection that the affidavit uses the phrase "fo? the purpose of 'p,.o re(|iiiros all tin- instrunicnts to he registered at fidl lenj,'th, ineludiM;.f every certiticato ami afhdavit, which could not well he done without the atlidavit bein" there to ref,'ister. Hut the ( 'hattel Mortj,'a<,'e Act dors imt seem to have any enuetnient which vests the Clerk with power to (h'eline to repster an instrument not duly proved for re<,'i.s- tratior by a sulHcient alHilavit of execution. As the Chattel Mortgii},'e Act. does not retpiire the instruments to be copied at length with every certificate and atlidavit, as is reipiired in the case of transfer of huid, it would justify the inference that tlio Legislature rather inteiuled the atlidavit of execution as a cheek upon the transaction, and to secure good faith between the parties, than as proof for registration for the satisfaction uf thoClerk. Acording to the Common Pleas {ride ante p. 129.) ami prior to 2(! Vic, cap. 40, s. 1, the endorsement by the Clerk of the time of receiving an instrument inider the Act, when tiled in proper time, settled the time, from which the in- strument took effect, as to creditor.-, purchasers and mort- gagees in good faith, just as it now does in several States ol the Union {M(t(jee v. Beiitley, 8 Ohio, 390 ; Doc v. Bank, 'i McLean 140; Curiudl v. Duval, 22 Ark., 130 ; Broam \. Hick- man, I V ''C, t-i. 110 ; Fo^dick v. Barr, 3 Ohio, s. 471 ; Toush'H \. Tomi^Uy O'-".^ is. 78). Now, however, as legislation lias settled thv 0- vlicf. b.crt'een the two courts, as to the period from whi«h o^t i;5-.tiiinient relat--s and takes effect, when pro- V' MOHTQAdKH AND 8ALE8. 177 porly filod ,n..lor the Act (soo ant. p. 129 ct hoc. 3 ant.), tl.o ori- <.nal on.lo,..se,n..nt l.y tl.o Oln-k, „.ado in pursuancoo th^A upn any .n.st.u.nont or copy .11.,, ,„,,,, ,„, Act. i. evidence only of tl.0 tuno of ..ooiviuK tho «.„... i„ the p -opor loo T CI rk sl.all noto .,.. day and hour of tl.o in.stn.n.'ont b ': .ecoivod by Inn., by . „..l.,. .....t, .,,, f,,„.. ,,„,, ^j,,,^ '^^ con,.dor.st .0 .n.fn,M.ont filod. Any on.iH.sio... o.to.- o, . tZ 0" 1- pa..t of tl... Clork.in n.akin, hi.s c.do.^on.on , an luc" used to tho proju.l.co of tl.o ...0.1,.,.,,. ,,, ,„,..„;„,„ \jij,Z2 .Tlu^mimn. 40 Mo. m -, M,,,,. v. Meu^,n:> Ala 2S • ^^7 ...e t. duly hlod un (g) This Stjitute requires three things Cbnt seo " TJ^n \i . ^^^and Sales of Personal Property lltUrnt ictl^;;: UofoJ:Zm '' ''' ""'''''''' ^"^^— y — d after 2nd. A statement exhibiting the interest of the mortiracee m the property claimed by virtue thereof, and a fullTtatemfnt e amount still due. for principal and interest tereo„ Id of all payments made on account thereof 3rd An affidavit, stating that such statements are true and h t the saul Mortgage has not been kept on foot for any frau ulent purpose. (O'Halloran v. Sills 12 U. C C P IgT) t foot note (I) infra.) "^ • ^- ^. r., 4boj. (See A true and correct copy of the Mortgage must be re filed scribing :.Ss aid r the' ^"-"^?f /-^^^^"^ '^^ °° «"b- m who made thAl . '"?^ ^^'^ ^^'^^ "*"^« ^^ ^^e per- wno made the affidavit was inserted as a witness, the vari- 192 MORTGAOES AND SALES. ance was held not to be material (Armstrong v. Ausvian, II U. C. Q. B. 498). When there is a simple impossibility of de- caption, or misleading by reason of a slip in the copying, as when the copy filed gave the date of the mortgage on the 13th March, 1877, instead of 1876, it was held immaterial (Sloan v. Maughan,';S App. R. 222), and an immaterial variation between a Chattel Mortgage and the copy subsequently filed, does not invalidate the filing. Nor does a mistake in the number of the lot, where the chattels were, nor writing in the copy " Mont- gomery," for " Mongomery" in the original Mortgage, nor copy- ing " he " for " him," or " they" for " them," or inserting in the copy "his," when it was not in the original, or omittino^ the word " the " when it was in the original (Walker v. Niles, 18 Gr. 210 ; Armstrong v. Ausman, 11 U. C. Q. B, 498). But any deviation in the copy from the original, which "ascribes to the Mortgage a different legal effect, or operation, or which has the effect of ascribing a different effect to the original, from what the original bears," is such a want of compliance with the Act as will vitiate the re-filing (Walker v. Niles, 18 Gr. 210), as where the copy was for $G00, and the original Mortgage was for $500, the intended copy is of no effect, and the re-filing is void as against creditors (Ely v. Caruley, 19 N. Y. 490). And the Statute being silent as to whether the affidavit of execution should be copied and re-filed with a copy of the Mortgage, it has been held that it is not necessary that the affidavit of exe- cution should be repeated, or any copy of it filed, on the re- filing of a mortgage (Beaty v. ^owler, 10 U. C. Q. B., 382). A similar provision to this section is found in an Act of the Legis- lature of the State of New York, and other States of the Union, and there it has been held that re-filing the original Mortgage with the statement required by the Act is a sufficient compliance with the Statute (Pain v. Mdson, 7 Ohio, S. 198 ; Stockham v. Allard, 4 T. & C. 279.) " The statement, exhibiting the interest of the mortgagee in the property, required on renewal of a Mortgage, must be posi- tive and distinct as to that interest. It should give such pre- MORTGAGES AND SALES. jgg (3.) Payments if anv T P""«Pal and interest ; 3W.a7., 42 U.'c.Q. B 137) "" '''''"'*^ *'''''^^ ^^«^-^«'- v. This statement cannot be marie 1». fi authority, however accurate .t ^ ^" ''^'^''^S^Sor, without i^^cell V. ran.., 44 Irb 'S^, Tl T''''^' -^^^ faith prevent the mortmi-or ictin..' J ' A ^''"^ '"^ "othing to the purpose of ^-mLT^ Z^::'' '^V^^ -^orts.,e: for .^hew the interest of the Irt^ f^ Z'' '''''r' '""'^^ an-i It must contain a full ^Hf. / ! P^'^Perty claimed, for principal and inteitt i T""^ '^ *'^« ^'"«"»t due ' C.P.49). The Stat tel^peifr^^^^^ '^^'^^"'^•^-' ^'^ U. C. a mere account. The sfreront Tn '''"'^*'""g "»°r« than . ^ling (Fraser v. ^«.^ o/ Co J^; '^^ *^« ^"- of affidavit is necessary to verify the sh/ . ^^ "^^ ^^ ^'^> ^o interest required by the Act r, f "'' "'' '"ortgagees hied on renewal of a Mortage, vhlTstTot !«" ' / '''^'''^''''' gage, as to the amount claLed h!f ? ''*'''= ^^^^ ^^^^'t- the instrument, is yet b nTn/iL nT ''' "'='"'^^ ^^^^^ *« of all those whom ft i« the deslof I T>"^"' ^" ^^^^^r against them, the mortgagee Tnnot aft *?"'"^' ^"^' greater sum than is contained .. ^^'^^'^^rds claim any »^«^-i...x8Bosw.96) r;iT ' ■^'f'"^'^' ^^^-- V «ng alone, does noi'sa Ly th" S^S-tt ^'r^^^^-*. by the affidavit, and read" in .!• . ' "*' "^^'"^ ^^^^^^ed jogether contain alUhatlVsl^^^^T^^^^^^^^^ *^f *- the law that, however fullv the «ffi^ ! ' formerly was 194 MORTGAGES AND SALES. statement itself did not contain the necessary information . (O'Halloran v. Sills, 12 U. C. C. P. 405). " The mortgagee has no more right to transfer a i)art of what should be in the statement to the affidavit, than he would have to transfer to the statement the portion of the affidax'it that the Mortgaj^e has not been kept on foot for any fraudulent purpose, and tiieu make affidavit simply that the statements are true " (p,.r Draper, C. J., OHalloran v. Sills, 12 U. C. C. P. 4G5). The judgment of the Court in O'Balluran v. Sills was followed h\ Saulter v. Carruthers (9 U. C. L. J. 158), and Hagarty, C. J. in lieynoUh v. WllUamson (25 U. C. C. P. 40), still recognise' O'Halloran v. Sills as an authority, that assistance could not be had from the affidavit to supply defects in the statement. In Walker V. Niks, 18 Or. 210, Mowat, V. C, expressed a dilierent opinion to that of Draper, C. J., and the later decisions have es- tablished a rule directly opposed to that laid down in O'Hallorah v. Sills. The rule is now established that the statement and affi- davit, when they refer to each other, and are meant to be read together, can be so read, and that if, together, they contain the particulars required by the Statute, the renewal is sufficient (Barber v. Mamjhan, 42 U. C. Q. B. 134 ; Sloan v. Mawjhan, 3 App. R. 222). " If the affidavit follows the terms of the Statute, and if it, and the statement, when read together, in the sense in which they would be understood, by ordinary English- speaking business men, convey with reasonable fulness, and fair- ness, the information that the deponent is still the mortgagee of the goods described in the Mortgage, and that a certain .sum remains due for principal and interest, and that certain other payments have been made on account, then the intent and spirit of the Statute are satisfied (per Moss, C. J. A. in Sloan v, Maughan, 3 App. 227 ; see Brodrick v Scale, L. R. 6 C. P. 98 ; Jones v. Ilarns, L. R. 7 Q. B. ] 57 ; Murray v. Mackenzie, L, R. 10 C. 1'. G25 ; Fickhard v. Bretz, 5 H. & N. 9 ; Banbiiru v. White et al. 2 H. & C. 300 ; Ilutton v. English 7 E. & B. 94). It has been decided in the United States (and there many of the Legislatures have passed Acts containing provisions similar .'0 to transfer to MORTGAGES AXD SALES. jy. tjo two papers, .ead t^Zr^Z'TT'''' -"^^ ^''' ''' ^' Mortgage, di.sclose the inter sofl'; ""''^ '^' ""'^Sin^ (i^^er'^y-Waterhary,SBoZtm T^ 71^^'' intelligibly -ty of opinion, wMd. oc caLl? tl P t "" ^''^ '^^^''- settle that, on and after trfl , ' ^'^S'^^^^'ure to definitely statement and affidv^ 1^^^ . 7 '' .^^^"^^^■' ''''' t^- whether, after that dat he^tf t'" "'''''"^^'"'^ «« ^h^t APP. R. 222), it will matternoTas t^4f T" " '^""^'''*'^' ^ the difficulty heretofore existit fThe M / ' ^^''^''^''^ ^°^'"«^ Personal Property Amendment Act ISsiT^ '"' '^'^^"■^ '^ For the fonn of the staten" nf and affi V'^'f ' '' ' ^^^^^> (h) The copy, with the s r . ^^"^'^ '""^ ^PP'^'^di^- apin filed inloffitohfc^:;::,:,^^^^^^^^^^ ^^^ ^« Counties wherein such ^.oods and !, , '"'^ "' ^"^^'^ of Now it may happen thatthe Mo.^ ^^^^^^^^^ f^^ ;f ^uate. ■nthe prope.- office within the Co^ntv « , "^"^">^ ^'*^ were situate," but in a diffi^ren offir? ^ 7^'''''' *^« ^^o^s the County wherein the rZ^Xo^^^^^^^^^ ^ ?^ ^^^^ ^' ecution of the Morto-a^e under TC J , ^^ ^^''' "^^^^ oHho ex- Joes this section melnty ^V^l f^^^^^^ 7. Then chattels are t/ien situate "that 2 M ^ "" '"'^ ^'''^' ^^'^ office of the County wher n ^-^^^^^^^ '""'^* ^« ^^^d in the i-pective of whe,^ it w^ etiS^^^ '^^ f "^*<' othe word.s "again filed" mean T C f ', '^/^^' ^"^^^^ ^^^^^ tamly indicate that the Mort^no-. i. , T *'''' "^^''^^ cer- County as that in whichit .^^or ^tll'^^^^^^^^ j" ''' '^^^ he done, it may be that it wilJ nnrf Jr^,"^'^"'^^^*^' ^^ this the County « whereinll g ^ r^^^^^^^^^ ^^^^ce within However unintelligible the worHJn A. *'" ^^'^ '''^^ate." this point, there cat b n dlut tlfit^^^^ "f "" "^^ ^« - ^i'e the Mortgage in the same ffit ^ ;i:r"t^^^^^ ongmally filed, though it be not th. ^^^^^"^^^^^ it was Wherein - the goods and chat^re Jt. tlte^! ^f thel^ ^^1 196 MORTGAGES AND SALES. jcct of the Statute was satisfied by first filing the Mortfra--ed n^ortgagee (section itT^/^o"' ^^"""''^^^'^tor of a de- W -tiy any next of kin exeon L- i • -^nee of a n^ortgagee (section i;^^^^^ .(10; Byanynextof].inexecilr ^;, • -gneeclainung by or thro'ug^ ""v Lorf '"Z^''"'"' «^-^- The 12 Vic. c. 74 sec •? 7^ "'o^tgage (section 11, /wr,.^-, aeeo".paniea by an 'affi^^, If i?"-. f- -«ling t^' t' '"ont exhibiting the interest of '^ P'-ovidecl for "astate- tereby Claimed by virtue tt"^' Z^^ I" *^« P-Pe^y f'y 20 Vie. cap. 3, wliicJi fir«f . • 7 Statute was repealed i^^oan V. i/^U./^X^^y-^i--'^ ti... affidavit to bJn.ado As under .sections one and si v^^' ->Jortgage,sounderthissTcirhrh.T' '" P^^^ ^^ take His authority „n,st be pu pos"; to '' '''' P^""' '' '^^^^ one. '"-t be in writing, and'^bf fi f witwb"' '"' ''" ^""^-^y It would seeni that a fresh a ll '"''•^^^^^ ^^•^^'tgage. a.-nt each time the Mor g g" IITI '^ ^"'^^" ^« - on and after the first day !t ol., ! ' '"^ ""^' ^^ '^ast. for the purpose of taking Zd,en^^^^^^^^^^^ 'm'' "^" ^""-"^y ance under the provisions of tl '«; " f f'''""^*^ ^'^ ^^^^'^Z cap. 119, n,ay be a .^eneral on. . I' ^'"'"'^^^ ^^ Ontario ^^ortgages or conveyanc" o "ho T' ""^-'^" ^ 4 TJ- Mortgages and'^Sal; of p'- ln",T°" "' '^''^''-'^-^ ^et. 1880. sec. G. See ^'o « " T'' Amendment P-ssly condition for the fgent takL'tr^ , '"' ' "'^'^ «- Jemg aware of all the cC m ta^l"'' ^^"''^'^0, after his There is no such express conXn "rt^^^^^-'^^^^ ^''-''^-ith. Jo^s that to make the affidavrtrn.hf n ' T'"""' >'^^ ^^ ^I" ^fallthecircumstancesin ont 1 " T' >' ""' '^ ^"^^"^ '"•^truinent (see note I, injlT "'''^' '^"' '''''^^^ «f the The affidavit must vouch • ' 2 l^^l 1" statements are true. fi 198 MORTGAGES AND SALES, objection that the affidavit made on one day, states the amount due for interest, at what it would be on a future day, the day of refiUng. The Act is complied with where no fraud is in- tended, though the amount due'is, by inadvertence, stated at a few shillings too much, or the statement includes a trifling sum, which the mortgagee had no right to charge ; through a mistake of this kind the Court will not hold the object of refiling de- feated, and the security lost (Fraser v. Bank of Toronto, 19 U. C. Q. B. 381 ). The affidavit must aver that the statements are "true." The substitution of the words "correct," "ac- counts," " exact," for the word " true," is a fatal objection (Reynolds v. Williavison, 25 U. C. C. P. 33). There is safet v in keeping to the words of the Statute, for though it may be dif- ficult to point out what difference in substance there may he between the meaning of the words, yet the omission, or change of a word, may iack a strict compliance with the Statute. The mere omission of the word " really" in an affidavit made under Revised Statutes, Ont., cap. 131, s. 3, is a well founded objection {Jackson v. Kassell, 26 U. C. C. P. 344). The addition of the word " correctly" to that of " truly," will not, however, nullify the affidavit {Barber v. Maughan, 42 U.C.Q. B. 141 ; sec also De Forrest v. Bunnell, 15 U. C. R.370 ; Harding v. Knotd- son, 17 U. C. R. 564 ; Brodle v. Ruttan, 16 U. C. R. 207 ; Moyer V. Davidson, 7 U. C. C. P. 521 ; Maxivell v. Ferrie, 8 U. C. C. P 11 ; Hatton v. English, 7 E. & Bl. 94). See also notes {k) and (j/) supra. A Notary Public in the Province of Qiiebec has no au- thority to take this affidavit {Reynolds v. Williamson, 25 U.C, C. P. 51). As to who can, see jposi sec. 21. Whosoever does take the affxdavit, he must not fail to sign the jurat, for his omission to do so will be fatal to the sufficiency of the re- filing {Nisbet v. Cock, 4 App. R. 200). Power has lately been given (40 Vic, c. 21 infra., s. 13) whereby Mortgages, registered under the provisions of the Con. Stat. U. C, c. 45, may now be discharged. It is pointed out by section 15 infra, that when a Mortgage, renewed under this section, requires to be discharged, the endorsement, or MORTGAGES AND SALES. 199 entry made necessary by the Clerk when filing the certificate of discharge, need only be made on the copy filed at the last renewal, and from and after the first day of October, A. D. 1880, these endorsements or entries need only be made upon the statement and afiidavit filed on the last renewal rSc 2wst). 11. (a) The affidavit required by the tenth section may be Affidavit, l,y made by any next of kin, executor or administrator of any '^'""" "'"''''• deceased mortgagee, or by any assignee claiming by or through any mortgagee, or any next of Kin, executor or administrate uf any such assignee (b) ; but, if the affidavit is made by any assignee, next of kin, executor or administrator of any such assignee, the assignment, or tlie several assignments, througli which 8«ch assignee claims, shall be filed in the office In which the Mortgage is filed, at or before the time of such re- filing by such assignee, next of kin, executor or administrator of such assignee (c). 40 Vic. c. 21, s. 5. (a) This section is new, and is not to be found in any of our former Chattel Mortgage Acts. It was introduced by 40 Vic. cap. 21, s. 5, in amendment of sec. 10, C. S. U. C. cap. 45. It must be read in conjunction with the preceding one, in order to know all by whom the afiidavit, required by section ten, can be made. (b) The following arc empowered by Statute to make the affidavit : — (1) The mortgagee (sec. 10). (2) One of several mortgagees (sec. 10). (3) The assignee of the mortgagee (sec. 10). (4) Any assignee claiming by or through any mort), such Mortgage may be discharged (c) by the filing, in the ofhce in whicli the saine is registered, of a certificate signed by the mortgagee, hia exec\itors or administrators (d), in the form given in the Schedule hereto, or to the like effect (c). (40 Vic, c. 21, s. 1.) («) This section i.s new. In ijone of the prior Chattel Mort- gage Act.s is provision made for the (lischarging of Mortgages and filing of the Release, as is herein contained, This privilege or power was first given by 40 Vic. cap. 21, sec. 1. It yet, how- ever, is optional with the parties interested to take advantage of this Act. Until 40 Vic. cap, 21; sec, 1, there was nothing to prevent a mortgagor, or other person so desiring, from ob- taining and filing a discharge, except it was that a Clerk could not be compelled to receive and file the instrument releasing the Mortgage. By virtue, however, of this section, the Cleik now, is compelled to receive and file any certificate of discharge of a Mortgage, registered under the provisions of this Act, But the certificate must be duly proved for registration, by the affi- davit of a subscribing witness (section 14, infra). (h) This section only provides for the discharge of Mortgages subject to the provisions of the Statute. It has been seen, that MORTOAGES AND SALRS. £03 if the circumstances conncpt.vl «7.M, +1, ■ • '.FopcHy taken. tkL t,„.t I £ ,, ]" :-'*",""'°°' r. 132, a, to attestation. In tl,o affi w of > T""' •'""■"• «mlcr .wtion, one, five- and , v -^ 1 1 "f™''™"-«1"™«equont purchasers and mortgagees in good faith (section 10 Tm J^:^^^<^ "f ^i"-. therefore, aslo thom, .™ t" L validate the Mortjrao'e and nvjimiu. ,..„..t this retainin.r i,. Ti ' ^ "'ortgagors are content with ..«, retaining u, then- own possession the evidence, as airainst t c mortgage,, of the Mortgage having b.en r.-leascl 1 Z object of regis ration of Mortgages is to apprise th pubic of l^ZltT '"'^r' " '' ^^''^ -tion intended t n rm e pubhc of a removal of the incund.rance as well as to b, nefi the mortgagor's financial position by affbrdin. I.i tnnity of giving official noti.. , n . T *""""' '"S '"'» 'i" "Ppor- .UoJa rl c I "* '"'^ circumstanceH havin-' been .ill »l«,Ily ,.vail H,c™,dv., of , vi t J /^^^^^^^^^^^^ 10 prevent fraua. which .-ive , ^Z, ' ° Mccssary ■taagc, (the amoujV^hr 'S;:''srat?.'° T™' "-.tg«geof.il»to .feha,,.o ,elea, '^ ^"";"«); /here a *. it ha, been paid an/the°L> '°:;m /r; , » f i*' pp. 410, 41 1>^^^ ^' ^^^ ^^^""^^ «« Mortgages, ' f hi L T''^'"'' ? ^ ^o^tgagoe as by the mortgagee him- -^ef his executors or administrators (section 16, infra). (e) The form given above (see appendix post) had better be 206 MORTGAGES AND SALES. adhered to, but there is nothing to prevent the ronveyanccr adopting any other to the like effect. Entering Cer- 14. (a) The officer with whom the Chattel |Mortgngfi is Di8di^ scribing witness. Under sections one, five and six, no sucli duty is'^cast upon him, for the Mortgage can be filed without the affidavit ofany subscribing witness (^msiron^f v. Aimnan, 11 U. C. Q. B., 498 ; see section 1, ante, p. 132.) (h) As to who can administer this affidavit, see section U infra. (c) See note (a) sup-a. (d) The Clerk's duties under this section, are— (1) To satisfy himself that the exeration of the discharge has been perfectly proved for registration. (2) To number the certificate. (3) To write at each place where the number of the Mort- gage has been entered, or wherever otherwise the Mortgage ha.s conveyancer see section '2i MORTGAGES AND SALES. 207 been entered the words "Discharged hy certificate number -^> 4 To each such enfry to affix his signature. " .Jo) To endorse the fact of such discharge upon the instrument f » of P„,,„n»i p,„p„,,y A„,xj, aI i&'r;"' the endorsement, by the (lork nf +l f .?' , *■ ^ ^""^^ WontheUri «„,„!,.„,, ..ft, ,„„,„„, .„^ '^ the said book. 20 V. c. 21 s. 3. W m the alph.belic.l Ch.t.el Morlg«. book l„ IhTl 208 MORTGAGES AND SALES. thorized by the three next preceding sections of this Act may and shall be had, upon a certificate of the assignee (/), proved in manner aforesaid (g). 40 V. c. 21, s. 4. (a) This section is now. (h) This provision only applies to Chattel Mortgages that have been registered, and not to those instruments, to which the Statute itself docs not apply, the validity of which, there- fore, in no way depends upon a compliance with the Act. (o) It is to be observed, that it is not compulsory, under this section, that an assignment of Mortgage should be rcgislereil. The word " may" is used in the section, and wheresoever it ap- pears throughout the Statute, it shall be construed as permis- sive (Rev. Stat. Ont. cap. 1, s. 8, sub-sec. 2). Any one, wishini' to register an assignment of Mortgfigo, can now do so, and the Clerk is obliged to receive it from him, when the Statute i.s otherwise complied with, for the purpose of registration. But, though it is optional with an assignee of a Mortgage, whether he register his assignment or not, yet, if he requires to renew the Mortgage under the tenth section of this Act, he must then, cither before or at the time of refiling his Mortgage, file the as- signment also (section 11 supra). The result, however, of regis- tration is to supply the mortgagor with noticG (Reedv. 3Iarkle, 10 Paige, 409 ; Walcott v. Sidllvan, 1 Edw. Ch. 39!) ; N. Y. Life Insurance Co.v. Smith, 2 Barb. Ch. 82). If the assignee does not register his assignment then he should at once give notice to the mortgagor, of the fact of his having become the assignee of the Mortgage, and thus prevent any further dealings betvreen mort- gagor and mortgagee, by which he might be prejudiced (for form of notice see Appendix). The mortgagor, having received the no- tice, can then no longer deal with the mortgagee concerning the Mortgage; should hedo so, however, anypayments that he might make, would bo fraudulently received by the mortgagee, and void, and of no avail on the part of the mortgagor (Johnson v, Holdsworth, 4 Dowl, P. 0. 63; Mickey v. Burt, 7 Taunt. 48; Mountstephen v. Brooke, 1 Chit. 390 ; Snell v. Newman, 4 B. & A. 149 ; Phillipsv. Claghett, 11 M.& W. 84 ; Paynev. Rogers, MORTGAGES AND SALES. £09 ^.Steele. m^liTm^^'l'n^'^'^^'"^'"'- ^''^ V Herbert 7T^ifli, n , ■"""'""""'. 22 Vt. 548 ; Jmm V. «eruert 7 Taunt. 421 ; Cook v. Step!mi, 5 Bins N O rM\ a Mortgage, then, even without the precaution K^;. * i "^ Black 00^ tju„ ,, ./ **^' McCormtck v. i)io6«, 8 Black, jjj. Should the note be overdue before fl,« m / IS assigned, then the same equiti.^ -,-n be set uVbv JJ'^ ^T gagor against the assignee's cla ' iT , , ^ :^ ' "'''*" signor (^««.a.i v. (^.flr '. ^ U7 tjT' ^ "" Mich '52fi^ Ti,« • ?' " ■- -^^ ^^f , Nichols y. Lee, 10 u-cM/y/i, * ves. 118; Wtlhamsv.Sorrell 4 Vpq ^qq m |/^C8 v. Dixon 18 L .<57 F S9 . r ""'^7"' * ^es. J89 ; ilfan- kw/.. rp\, <» ^. 82 ; Jbtmes v. ifwrray, 2 Cow 24fi • ™ V. / 6,-ry, J Baib. 114; Evertsmiv. EvertKm, 5 Paim 2091 "d aty equities (arisiug after the transfer but of wSbH'' -8.ee had notice at the ti.e of the tra„lr):'thf ^o" 210 MOKTaAGES AND SALES. will be entitled to set up against the assignee r-s ho could have set up against the assignor ; but without notice of subsequent equities the assignee will be bound only by those in existence prior to and at the date of the assignment. (d) The introduction of the word " subscribing" before the word witness will here be observed. It is not necessary that the witness to the ftiortgage itself should be a subscribing wit- ness (Aronstrong v. Austrian, 11 U. C.Q. B. 498), but the proof required, in order to file an assignment of Mortgage, is the affi- davit of execution of a subscribing witness ; and the Clerk, be- fore filing an assignment must satisfy himself, that the Statute has been duly complied with in this respect. (e) See sections 7 and 8 ante. 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 e\ ent of a conflict taking place between the assignee and other parties, after the period has elapsed, within which the Mortgage was requii-ed to be reSled ; because then, the Statute requires also that the assignment shall be registered, and this section requires certain formalities to be observed in its regis- tration. As the Statute does not make registration compul- sory, the assignee of a Mortgage for valuable consideration will be preferred as against a bonajide purchaser for value without notice, even though the assignment be not registered (Wilson v. Kimball, 27 N. Y. 300). (/) In addition to the mortgagee or the executors or admin- strators of the mortgagee (section 13 supr\i), the assignee of a Mortgage has, under this section, the power given hinj to exe- cute tlie certificate of discharge of Mortgage. Qjr) See section 14. MOHTGAOES AND SALES. gll H) r n't ^"'^' '^ '"'""^'^ "^ ""'"''"' ''''''^''^ inatrument subjects r/SLl ^^1*'"? "'""''^ '" any Re^Btration dent in a Provisional Judi^Sl f^^lf ^'i " ^ "•"'■ ^^'fca gor or bargainor is not at tJie iiZlf Ik ' '"°'' "•''•'«'»■ ^"vi«^n^l instrument a resident in Ontn f.x , ^'^ecution of such ."'Vd'cial Wg. Perty (e) mortgagetoV^o.dt:; j T^ '"'. .^-"-^ P- '" D"trict (/), then the provi Ins .^ «;. Provisional Judicial -h instrument with thVsl'Stl'r.t; .;';?," T'/ *° District Court" M for ■< (l.n f I , , . ^'''' '^iork ot the l.«t Ihi. »clio„ rti,'';f '•* -" *"' C«"nt, Court •■ (J), ment Act, 1880." Pj-io.. fo 4n v '''^^°''*' P^perty Amend- Provisional County of Haliburton ' l Provin.e.and the the registration of Bills of Sal . nf '' "^^^ "" P^-^^^^^"^ for visional Judicial DislSts tt 1 j^^f ;,^;'>-^- in Pro- enacted, with the substitution T f ^'^'^^ '^'<' ^« ^^'^ re- (Rev. Stat. 0. cap llT '. i . ' ''^''""'^ '' " '^' ^^^ " ^g„ cap. 119) ,n,tead of to "Con. Stat. U. C. cap. fining territory incXd"^^^^^^ fencing on the'^uorth hoT of th! P ""^ ""^^=-" '''^- Huron at the most westerly Vol of ^T ^' '' ^^^e '^e north to the northerly fi J oftj'/p^'''"''^ ^'^'^ ' whence the said northerly limit of the P.. ''' "'""^'^ ^^«"g erly limit thereof; thence aloL^""':,' ""*^^^^ *« *^^« ^^^^^ Province southeri; to ttstTe ^ii:; , TCt' "^^ «^, ^^e i^-^^^:;:^hr^^r^^ --uiinxsirnL^-::?-^^^ 212 MORTGAGES AND SALES. include all the islands in Lake Huron not within the settled limits of any county or disti-ict, to the pbce of beginning." " But such portions of the said District of Algoma as are, by The Act respecting the Territorial Districts of Muskoka, Parry Sound and Thunder Bay, included within the limits of the Territorial District of Thunder Bay, shall, for the purposes of the said Act, continue to form part of the said Territorial Dis- trict of Thunder Bay." (Kev. Stat. 0. cap. 5, seo 1, sub-sec. 43.) (6) See sections one, three, five, six, nine, ten, and sixteen. Whenever any instniment shall be executed, which comes with- in the operation and control of the Statute {Baldwin v. Benja- min, 16 U. C. Q. B. 52 ; Mathers v. Lynch, 28 U. C. Q. B. 254, p. 363 ; Walker v. Niles, 18 Grant, 212), then this section applies to such instrument, provided that the mortgagor or bargainor mentioned therein is, at the time of the execution of the in- strument, a resident within a Provisional Judicial District ; but this proviso will only affect the instrument up to the first day of October, 1880. See infra note (rf). (c) There being but one Provisional Judicial District in exist- ence, the language of this section, instead of being general, might have specified the district to which alone it could have reference, but the section, no doubt, was framed, so as to include any other Provisional Judicial District which the Lieutenant-Governor may, hereafter from time to time, form and set apart. (d) See section seven, note (cZ). It must be borne in mind that an amendment to this section is made by " The Mortgages and Sales of Personal Property Amendment Act, 1880," similar to that made to section 7 supra by the same amending Act, and that from and after the first day of October, 1880, the instru- ments to which this section applies, must be filed within the Provisional Judicial District in which the goods are, at the time of the execution of the Mortgage or conveyance. (e) In this section, the use of the expression " personal pro- perty " is to be observed. In that part of section seven, which corresponds with this portion of this section, the term " proper- ty " alone is used, and throughout the rest of the Act the term MORTOAaES AND SALE3. glS ' goods and chattels " is emolovpd Th.r Vic. cap. 86) makes use 7fh7 P'"^' ^"^ ^^ & ^8 but then th s expreslnt I """^"""T "^^^^^"^^ ^^attels ;" and given a iZTZie, "'"^"r"^ ^"*^^P-*«d ^-^^ -0 been held not To „c2 atT' '\ T'*.'' ''^ ''**^'' *^^* ^^ ^^ -n. when the ^f sS'^fe 1^^^^^^^ .".^^ ^^« - Act are to be applied t.i, .igK ^J^J^T"^ °^ *^^ and are not, but are left in fu r^''"^^^^^ ^ ^^e Assignee, tion, IS confined in its nnr.l,-„oj.- x i"operty, m this sec- embraced within t 1 rarn;oVr^' '"^"^^ ^^^^' ^« '^ chattels '• in section one Znfhi . ^^.P^'^^^^^" "goods and operation than was int ^bv hl't" i ^"^" ' ""^^ ^^^er sess. Personal property hi a V ^f^^'^*"^« ^^' should pos- whatever wante^eTtW^e Ir J"^ ""'^^ mlioUion. Ifccover^ things real (WkJu^tt^'^ZeZ 2"'^'"^'^ ^**^"^^"^ and chattels" as found in this ZZ f^P^^^«^«» "gooda ='■""«) Of *f good, a, c^Tl:::z:;^:^/'-'^^oi i»6ood faith, an i^il^t^S:f:'"'- ^^ """"'"'S'- -i««i^the mortgagee takeirTriLnrrj;!^-- 220 MORTGAGES AND SALES, property, because the possession taken by the mortgagee con- stitutes an identification and appropriation of the property mortgaged {Howell v. McFarlane, 16 U.C. Q. B. 469; Call v Gray, 37 N. H. 428 j Morrow v. Meed, 30 Wis. 81 ; Hutchison V. Roberts, 7 U. C.C. P. 475 ; Mills v. King, 14 U. C. C. P. 223 ) (c) As to what things are capable of being mortgaged fsee sec. 1, ante p. 158, note c.) (d) 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 necessity for a full description is explained in the words of the Statute that the goods and chattels mortgaged may be " thereby readily and easily known and distinguished." " 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 accur- ate information by an inspection of the instrument filed and to enable su. V 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 chat- tels intended to be mortgaged in the instrument itself, so that their identity may be ascertained, and if loss by reason of such omission is the result they are themselves to blame" per Morrison, J. A. (Holt v. Carmichael, 2 App. R. 644). What is such a description and a nroper interpretation to put upon this section is a question that has ari- ,n and still IS frequently arising, and has occasioned not a little conflict of judicial opinion. Anyone who may read or examine the in- strument containing a description of the property sold, or mort- gaged, should be in a position, from the description itself to be able to distinguish ho property mortgaged, from other pro- perty of a similar kind. The description of the goods and chattels should be such as to enable him to do this, or to iden- tify the property b> means of enquiry, which the instrument MORTOAGES AND SALES. JEI itself indicates or directs ('PA «w n y.Mmer. 60 Me 118 Si ^V" ^'''^^'' ^^ ^«- ^61; Elder But it is notlcessa;v tZTr/T^ "^ ^'^^•^^^' ^^ ^l 239). required to erb a p«^^^ r "' •^'.^"^'^ ^«"*^- -" that i . mortgaged by naerelv Zl t" "^""'^ ^'^^ "^'"^^^^ of property certain the thfng detSed T '' " "^^^««^^>^ *« ^- -y be specifically Tno J Z'' ' "^'^'^^^ ^ ^^^^ ^^ tinue cannot be brouThrf '^ ^^^^^^^ed : therefore, de- fer that cannot be fni'f"'"'^' ^^^"' ^ ^^e like, corn, unless it be in a W? ^""/"^ ''^'^^^ '"^^^^ «; tinguishedand.a;L(3|l Coria'rf? '' "^^^ ^'^- is required in the descrintion ,'", ^^^^ ^"^ greater certainty of trover (2 Sand. 7^ golif ^gt 7l ''^" ^'^ *^^ ^^^^ B. 548). Though the words used inS^Tp""' "^ ^'"''"' '' Q" fically known and recoLed" 1 . ""• ^^^ '"" " ^P^''^- detinue might not hlZlhlfJ ."^ ^''"P*^''^ ^"^"^^^ ^^ made necesLy under tht seof ^f'f''^^' description as is K. 639). TheUlrelw:;^/^^^^^^ action of detinue, however Ts o^l.T^^" '''"^''' ^" ^" whether a mortgagee can cl Jm litl T '' ^" ^^^^ertaining become changed in character t u ^^'P^''*^ ^^^^^ ha.s ?age. If a morl^e ^n Z W ' ''''="'^^" "^ *^« ^^-t- against a defendant^Lr rllT " '". '^'"" ^^ ^«*-"« -^in property, thefa MoriTll biT'' '^ ^'^^ "^ gaged, though the character of S '^ P'^P"''*^ "^^^t- ;ltered as t^o prevent^ Mtlifitfo: ^^^^^ ^ -^T^ - Mortgage on saw logs will bind Thl' i ,''/''' '"^^^oce, a are sawn, but the mort JJel rl \ "^'' ^°*" ^^^^^ ^^ey made out of the ^2?^^ "^"^^ T""' *^"* ^^^^ ^"•"ber was ^•o.Q.B.477,^tr:h-^:3^^^^^^^ • would arise in our Courts as tc^ ll J "^P" ^' q"«««««3 of goods at Common Law So at clrT °' ^ '"°"P"- of personal propert, in these 1^ a" th"'/'' "'^'"^^ cows, heifera, calves sheen ]s>rr.h7 ^^^ ^°'''^«' '"ares, books, and eve ry 222 MOKTGAGES AND SALES. Other article or thing on or about the south half of lot 24 in the third concession of the township of London," was held to contain a sufficient description (Balkwell v. Bedclome, 16 U C Q. B. 203). General words are sometimes all that cin be em- ployed in describing property intended to be covered by an instrument under the Act, except a minute list is taken of every article mortgaged, and then it is necessary that theloca tion of the property, at the moment of the execution of the deed, should be defined and ascertained by the instrument Itself. Thus, a description of the goods assigned as all the goods, etc., of the assignor, being in and about the warehouse on \. street, and all his furniture in and about his dwelling house on W. street, and all bonds and securities for monev oans, stock, notes, etc.. etc., whatsoever and wheresoever belonging, due. or owing to him, was held sufficient to satisfy the statute 20 Vic. cap. 3, s. 4 (Harris v. Comviercial Bank 16 U. C. Q. B. 437). Property, such as bonds, bills and account'^ railway stocks and things of that kind, are not required to have that particular description necessary under the Statute in recrard to other property (Harris v. Commercial Bank, 16 U C Q B 437). An assignment in the form of " ail the assignor's pereonal propertyand effects whatsoever, and wheresoever," will be insuffi- cient, these words being too indefinite; their use gives no force or meaning to this section whatsoever (Harris v. Commercial Bank, 16 U. C. Q. B. 444; Howell v. McFarlane, 16 U C Q B 469). When the locality of property in a mortgage is clearly and sufficiently defined, then general words describing the goods and chattels mortgaged nre usually sufficient. Thus a Mort- gage of "all the dry good.s, boots and shoes, millinery goods and gentlemen's fui-nishing goods, and stock in trade," now in the possession of the mortgagor, and being in the store occupied by him. beingstorenumber three, of Smith's Block, on the south side of King street, in the town of is a good and suffi- '^lent description (Conklin v. Shelly, 28 N. Y. 360; Oardner V. McEwan, 19 N. Y. 123 ; Re Thirkdl, Pervin v. Wood, 21 Or. 492 ; Ross v. Conger, 14 U. C. R. 525 ; Fraser v. Bank of MORTOAOES AND SALES. gSS Toronto, 19 U. C R "^°^^' *« -^^^lish '^me of the execution of the MoT ^'r^ '"^ '^'' ^^^P ^'^ the C- Q. B. 525). To avoid the llT'" ^'''■' ^^ ^^"•^^^' 1* t^- gage upon stock so des ribed t is «1 ''"">" ^^ -ayof Mort- for the deed covering stock b \!'^^^" ""''^^^' ^ P^'^^^^e of that which ma; betoti^^^ "^ ''^ ^'"P ''^ ^-^--^ vides, and it clearly appe/rS'tf' ^1''' '^' ^^^^ «<^ P^^' tention to bring wUhin 'tsonr. ""^ ''''^^' *° ^e the in- the deed will not 1 ave su.h TZr^/^^^^ ^^^l^^^^^ property. though the deed contain a now!?; ^' ^•^- ^^^'^^^'^^^^ and effects, the power ^-nVoirernrd fl '"t' ''''''''' the premises at theexcrnfmn J .7 ^Jt^f^ed to goods not upon I Scott N. K. 067 Tt: t Vt^'Tl'^O^f^^' Reeve v. >K/«Ymo,.. 33 L. J. Ch CsT tI ' u '^" ^^ ^- ^^^ ' Mortgage including, i„ add tion iA ^^'"'^ ^' ^"^^ ^^ ^^e when executed, any and aH toVk ', '^"P°" '^' P^'^^'^^' 224 MORTa ES AND SALES. 21 Gr. 492). At Common Law, an assignment is not good so far as it professes to convey after acquired property ; it can only operate upon such property as is in existence and which is the grant Vs at the time of the assignment, or m which he had some interest, unless however, the gran- tor ratify the sale of the " after acquired property " by some act, done by him after the property is acquired by him; and an assignee acquires no valid title by such in- strument to such property when there is no novu.'< actus (Lum v. Thornton, 1 C. B. 379). Nothing -f <-. ^^on Law can be mortgaged but that which is in es.e • and a man cannot give away that which ho hath not, qui non habet ille non dut {Lunn v. Thornton, 1 C. B. 379 ; Short v. Rman, 12 U. C. Q. B. 79; Cammings v. Morgan, 12 U. C Q B 565 • Gongreve v. Everts, 10 Exch. 307; Mogg v. Baker, 3 M & w' 195; Oale v. Burnell, 7 Q. B. CoO; Otis v Sill, 8 Barb 102- Yates V. Olmsted, 65 Barb. 43). When, therefore, sales are' made m the ordinary co;irse of trade, " the stock is replenished and deficiencies supplied ; the stock bought from the proceeds of the mortgaged property is not liable to the mortga^^ee's claim" (Herman on Mtgs.91 ; Anderson Y.Howard, 49 Ga. 313). We have, however, seen {ante sec. 1, note {o), pp. 105-116) that an assignment of after-acquired property is good, and " that where goods are of a nature to be used along with, or in sub- stitution for goods actually in existence, and the subject of a Mortgage, then such after-acquired property can be subject to the Mortgage" (per Blake V.C. Ri Thirkell, Ferrin v. Wood, 21 Gr. 509 ; see Holroyd v Marshall supra, and other cases cited). It is not sufficient to state merely the street, upon which the stock in trade mortgaged happens to be, without sayin^ that It was in the shop or on the premises of the assignor situate upon that street (Wilson v. Kerr, 17 U. C. E. 168). The word stock is a convertible term. It is the capital or property of a merchant, tradesman, or company, invested in any busi- ness including merchandize, money and credits (Worcester Diet.), and it may mean the stock of a grocer, or dry goods MORTGAGKS AND SALES. 225 at " is not sufficient, and wl 'c f I '^'''•'S-Sor, situate in the prenases of the deed a T I? "^^^^-'t^agor is described chant, the nature or kind of iZf T ^''^^P'-^tio" of mer- for the word mercJmnt ifn " '^""''* ^' ascertained trade or occupation of the' .ranto is dofl T i''' "^' "^*"^^ ^^ *1^« premises to the deed, it wTlI t] en b V''^''*^"^''^^ ^^ *he -■^rade of the grant.- situlte ar^f""" ^ "*'^ '^^«^^- corresponding with the occun.ition .f °, ''^<^ description described. Where, for instance ''^ "'° ^''^^^^^ i« '^ druggist, and the inst u ^d^^^^^^^^^^^^^^ '' ^^^-^^^d as as nhe stock-in-trade of tet OH ''' P''"P'^^"*3^ «i»M>Iy tl'e Court wiil assume f 1 .f Ti '"'''^-■•^&"^'> ^'tuate at " ^J f drugs, ^^ou:2z^X'j:xzr'''T' '- ^ ^^ J"'« to sell, and so where the lot^ / ''' ^ ^'""S-''^^ »«"ally in? goods and article bei in he' "" T' " '''' "^« ^«^'«- J-t part, on the corner oQ:;f,„tM .^'^ ''''' ^' *'- Town of Bran,pton, that is to stv 8 7 T'' ^'^ '^' '^'^^ "'^? a long list, and also he foUot' "' f "^"^-^^^'" ^^i- «-in-tradecaheparty he t? %^°'^^' '^^^"^ ^^ '^e of April last, that is to say uJl ^T ^''^'^ ''' ''^« ^"^^^^^ t'-t all the goods were sTffieentlv Z r Tf'' '' "^'^ ^^^^ f goods might be takenrl'srS t 'r"''^^"^^^^^^^^ {Mathers V. Lynch, 28 U C R ~'''^/" ^^ i» the store ^vasheaded "household furnitm-ennl '''^''' '''''^"^« I> -d the several ^^Un.22^^:'T^f'-^-^r ^Peciried, it was held sufficient astr ?f. ^"'°^^"''*^ ^^^^« to the parties' residence (J^^st I //f ' >/""'"^'^ '' ''^f- Q. B- 381). From the ^o2''^^, '^ ^r^"'^' '' ^^ G" hough no locality is mentioned;; "fa iT f ^r"',"^' ^*"ff'" Jacks IS the locality, the assumn ion nl '* '^'' description "on refers to the mo tgaVXeSn"^/''' '^^ ^^'"'^P- ;-h as "blankets Inf cou p^^r' !^^^ --.■■^glass..>"eleetroandplateJt:;;.^^ MORTOAOES AND SALES. and " earthenware," may be properly treated r.s coming v/lthin the general terms "furniture and household iTHfT" (Wihoit, V. Kerr, 17 U. C. Q. B. 168 ; 18 U. 0. Q. B. m ; Kingston V. Chapman, 9 U. C.C.P. 130 ; Fraserv. Bank of Torn., to 19 fJ. C. Q. B. 381 ; Porcell v. Bank of Uppr Canado:, U V. C. 0. P. 3(38). It must not be Juiderstood, as being the law. tie)-,' wiiliout a description by locality of the property m-ort-ag.-d.' the deed uecesstiiy becomes invalul, as against the parties at- tacking it. If th« guodn ,aie theirAstlves described with reason- able clearness, so th-i;. their i^lentity is unquestionable, thpn the description will be fooii, without any mention of a pkr& where the goods are at the tiuio of the execution of the Mort- gage (Mason v. McDonald, 25 IT. C. C. P. 439). For instance the description of " two sets of blacksmithing and one set of waggon-maker's tools complete" in itself, affords no means of identifying the goods intended to be mortgaged, but with the assistance of locality it becomes sufficient {Masonv. McDonald, 25 U. C. C. P. 439). And also, wh< o the goods were specified as particularly mentioned in a sCiOdule annexed, in which thoy were described as " one buggy, one cutter," one cart, one bread sleigh, two sets of harness, one horse, one chaff cutter; and the following household furniture, namely : " in the small parlour, one stove," &c., &c., enumerating the articles in different rooms, the description was held sufficient as to the furniture, but insufficient as to the other goods {Sutherland v. Nixon, 21 U. C. Q. B. 629). On the other hand, it is not difficult to perceive that a careful and minute description of some chattels, such, for instance, as a horse, would facilitate identification, far more easily than an imperfect description of the animal itself, even with its locality given at the date of the execution of the in- strument. Some property, especially such as from its nature or quality, is moved or taken about from place to place, can be best described for the purpose of identification by simply an accurate description of itself. Disr sing with such, relying u: -"i its identification, by being der .■■id as of a locality, at the e> • .■ tion of the Mortgage, mi^hi, cu,3ily prove unsatisfactory, .;s o- "F s coming v/lthin suiff" (Wihou 'i7r> ; Kingston hofToro-tto.W ido:, 11K;. C. 0. the law, tl,8«-., rty moriSgag.'(l, b the parties at- 3(1 with reason- stionable, then tion of a pkc& m of the Mort- For instaneu and one set of Is no means of !, but with the I V. McDonald, were specified xed, in which ' one cart, one e chaff cutter; " in the small iles in different furniture, but Nixon, 21 TJ. alt to perceive chattels, such, tion, far more lal itself, even ion of the iu- i its nature or 36, can be best y an accurate ying u: "n its at the e '• - 'actory, >- MORTGAGES AND SALES. 227 ^^% :s ^^::cS:^:rf "^' -'-^^^ ^^-^ o. *'^^^ ^'- '^ription of a chatte 1" ''"^- ""^"^^'^tional error, in fy-g ft in other .'atfof\nZTTr '^ ^"^^^ ^ '^-ti ^-.-hovsc. which treZZtTuf f t""P"^°^'^ "*-« :^"eof the horses happens to\n I ^"' '^'""^b"^'" ^«d ;ntended to be n.ortgS nnd wh , ' "1 ''^' ^"^ ^^^ «ne the omnibus, the faL ^ 1 , . ''^ '^'^^'^ ^"^«°. and used in where the Mortgage is of I fbl 7 ?\ ^^ ^- ***)• »« also -hich I p,„,h4l ft^m "F ' niT '"" ^" "^•" *^^ --^' gagor had no staves in M but' .1. !t ^^'^'"^''"^ *^^* ^^e mort- "^"it was held that th^ fi It rt T^-^.P-'chased from' rejected as false, the remain. l- T ^ description might be Perty, it being merelvTm 7-7 '"^"'^"^ *« Pa^s the pro- %, 7 Cush. 456) The eaXr ^' '/^^^fi^^^ion (A«,> v. 7fl f;- 223) seems nit to be " p^p^ ^^^^ ^% d* U. C C that case, Mr. Justice wll3w , ?^ ^" ^ater authorities. I„' tJ^at "one omnibus," Te ^Tw^^^^^^ passed under the Mor ga;e and ht " '"'"'^ "^« ^--n because such would bels'uffl \T' *" '^'' conclusion ^^«-e(page243).andso.Tf4irfe r^^^^^ ^" ^««- «"' ^^a« held sufficient (Noell v. Pi/^U P 7^?^;^^ °^«"'^^"g" authority of if.7^. v Kino ''Zl \ : ^" '^- *22),and, on the ;H a sufficient descrfp^n (^Zrvp'T'^"^" ^^^ ^^- fO. In this case, however Z \^'''^''y' 27 U. C. C. P ocality, but the evidence showed^ ^««°"bed by orwhen the deed wa^ e^'el t^^^^^^^^^ Joca% with which it was desSied 7t'T "" ^'' '^ '^^ -ght to be so described, that should the ' T^'^' ^^^^^^^ he same kind of articles than^K P"'"' ^^« "^«re of -d> it would be possi le (W th kT'" "^ '^"'^ - ^^^ ^■on which the Mortgage ind?c2es^:*T'"'^''''" ^^<^™^- ^hich of the class is intended to ' ^^^^'^"^^«d) to tell 2^cial Bank, U U. 0. R 437 444 1^' ^u"'^ ^- ^-- ----thecase.tostariit£-^-~ 228 MORTGAGES AND SALES. number of horses, cows, sheep, or other articles mortgaged, by the deed, are all of the kind that the mortgagor possesses. Because, without anything further, how is a party interested to tell from the instrument itself, what buggy is mortgaged, where the mortgagor has more than one of the same kind, if the deed gives no further information than is to be acquired from the words, " one buggy ;" therefore the latest authority {Holt v. Carmichael, 2 App. R. 639), now settles sucii a description to be insufHcient, that something more than simply the generic term of a chattel or other article is required, either by minutely des- cribing the chattel, or by giving it a locality, or by shewing that the mortgagor has no more of the same kind. Therefore, also, a Mortgage of a horse, descvibing it as " one sorrel horse," is void for want of sufficient description {Montgomery v. Wright, 8 Mich. 143), so also is a Mortgage of " three yoke of oxen," because there is nothing whatever to enable one to identify them from others of a similar kind, should the mortgagor have others {McCord v. Cooper, 30 Ind. 9 ; Croswell v. AlUs, 25 Conn. Sll ; Blalcdj v. Patrick, G7 N. C. 40). It sometimes happens that property becomes intermixed with other property of a like kind, ft is the law, in such cases, that when the owner of property miices his own with that of another, and thus prevents identification, the one who so mixes loses his right to his own pro- perty, and the whole becomes the property of him whose rights are invaded (Herman on Mortgages, p. 83). But if the property of each is of the same description, then this is not so, when a similar quantity of the articles mortgaged (railway ties for instance) will place the mortgagee in the same position as he was in prior to the intermingling of each other's property. If goods are mortgaged, and the moi tgagor intermix them with others of a like kind belonging to him, so that the mortgaged property cannot be distinguished, the mortgagee is entitled to the whole, even as against a consignee of the mortgagor, and can recover the full value thereof, for the property not mort- gaged becomes accessorial to the mortgaged property, and sub- ject to the lien and operation of the Mortgage, provided of MOUTOAGES AND SALES. 229 WKW V. R^'n^I'Af'Tr'' "■ *"■". » Barb. 630; the foII„„4 e^Ll^!! """">""- ">» --i'or ventures „p„„ mention ^f loclm; 1„ t" '„: 7 ^r"™"""'' ""'-^ eality should bo „,Me.l fl« v ,,,^ "'"'^'^J"''"''''' ">"' l- (2) Where genera, wer Ta^o ^f^^^'f^ ,C- « P- «9). are described a., of a das., then m™ L' f ,1 ° ™<>'-'sasod " indispensable (f™,,, ; p,,?,/ fr " °°™' '«ality (J; It IS not snfhoicnt to de-irriho . .> ». i . ■''''^' generic term. Co,T«ct lorlli, f, ■■""' """P'y 'y "s -nust be otherwise *,, Bed b "'"■""""'*''■ " "'"hittel eilt":^;ra?:K:f -^'r ■"™ -"-* -^" An-» V. Wood, orGrit^Brrr'''''''^^' ""•*«. must appear upon the faceof the in,'. T "' *' P"'"'^ afler-acqnired property CSiin » '""'■™™'' *° b™g tho a»suL'tTociuty'r;e;:a'f?!? r,°°"' -"' «■»■« deed (jrc,«.„ /4°,^;:_ t V a R 3 4^ °"'" '"^ °' ''^ -Henee (^ . ,. *. J^Sr. « '^C R%r°"°«"^'' Of t p'e t7 hf re Zt ,^'" ™- '" ™ 0' '-Ssiiptions P y, one that „ mcorrect may be rejected and the i.JjfW.'Jfj 230 MOuTGAGES AND SALES. mf other retained, and the description yet held good (Fitzgerald v. Johnston, 41 U. C. R. 444). (9) An owner of land, upon which ther.. iue iixturtM, has (he right to Hcvti- tlie chattels from the lealty, and when severed a Chattel Mortgage will bo prefei i <'d as against a subsequent mort- gagee of th<' land (Ross v. Hope, 22 U. C. C. P. 482 ; Coovihs v. Beaumont. '> B. & Ad. 72 ; Boydell v. McMichd, 1 C , M. & R 177). (10) S Mortgage on saw logs will bind the lumber into Avhich they are sawn if the mortgagee can prove that such lumber was made out oithe logs mortgaged (White v. Broxvne, 12 U. C. R. 477). (11) If goods are referred to as being contained in a schedule, general words in the Mortgage itself n'ill not embrace other goods than those mentioned in the schedule (Kingston v. Ckaj)- man, 9 U. C. C. P. 130; Wood v. Rowcliffe, 6 Ex. 407, 20 L. J. Ex. 285). (12) The words "all the assignor's personal property nnd effects whatsoever and wheresoever," are insufficient (Harris v. Commercial Bank, 10 U. C. R. 444). (13) Bonds, bills, notes, accounts, slocks, "ejusdem genens" do not require the usual particular descriptio necessary under the Statute (Harris v. Ct ■ Ba7ik •^apra). (13) The words "any anti all stock purchased by the mort- gagor, and which may be in his possession upon the said premises during the existence or cor-uiuiace of this security, oi ,>f any renewal or renewals thereof," is a sufficient description to pass after acquired property (M Thirkell, Perrin •■ Wood, '21 Gr., 492). See the following cases : Howell v. Hi rirlav, , 16 U. C. R. 460 ; Fleming v. McNaughton, 16 U. C. J. 1 '; Fitzgerald V. Johnson, 41 U. C. R. 440; Holt v. t mAcu,. J, 2 App, E. 639 ; Cort v. Sager, 27 L. J. Exch. 378 ; Rose v. Hope. 22, U. C. C. 1'. ±82 ; Re Thirkell, Perrin v. Wood, 21 Gr. 495 ; Ross v. Conger, 14 U. C. Q. 3. 525 ; Hewitt v. Corbett, 15 U. C. Q. R 39 ; Walker v. Mies, 18 Gr. ; White v. Haight, 11 Gr. 420; White MORTOAGRS AND SALES. S81 Kerr, 18 U. C. O B 470 • Pn.„ /; n\ ^ ' " '^^^ v- P^ 303; 7l/o/^a« v. Coulson, 19 U O O B '.I'i \ ^' ^• Murray, 12 U. C P "Jk » , ' ^' ^- ^^^'' ^f^^cott v. sfcM.'^o,. V. je;«, 24 u c c p ?i- ff V; "■ ''"; V. «l..!°r u.t* B , ^3 '?'•/;• ■"".y- <^- «• ••"' ^ ^«^« ff. 73 to Si ' -^^ *"• ™miaiion Jlortjragos, BencJi .u Common Pleas , .i T„ * "«'^""™ of Queen's the «.,m of twenty centB' be tn V '" ^'"^^ ^'^' ^"'^ ministered. C. S. U C. c. 45 a ] ^'^^'^ ""^^ *''"' *'*• (a) This section is amended 1 Vic.cap.8,sec.l2.(SooWra p.236).M-hereby powers ire oonf ."' '^^^ ''^' '''•^2- ^'^•^'^ "^A« 0.«o (see Kev. Sta. O...;:; 62 '^X'Ts": -^ '" 232 MORTl.AOES AND HALES, land, or of tl.e Court of Session, or of tho Justiciary Court of Scotland, or in tho Hi{,di Court of Chance.y, or the Courts of Queen's Bcncii, Couunon Pleas or Exche(,uer in Ireland or a Judge of niiy of the County Courts in Great Britain or Tre- land, within his County, or any Notary Public, certified undur his hand and otticial seal, or the Mayor or Chief Magistrate of any city, borough or town coiiiorate in Great Britain or Ire- land, or in any colony (.f Her Majesty beyond the limits of Ca- nada, or in any foreign country, and certified under the com- mon seal of such city, borough or town corporate, or a Judge of any Court of Record, or of supreme jurisdiction in any colony beyond the limits of Canada belonging to the crown of Great Britani, or any dependency thereof, or in any foreign country or, if made in tho British possessions in India, any Magistrate or Collector certified to have been such under the hand of the Governor of such possession, or, if made in Quebec, a Jud^re or Prothonotary of the Superior Court or Clerk of the Circuit Court, or any Consul, Vice-Consul or Consular agent of Her Majesty exercising his functions in any foreign place or a Conumssioner authorized by the laws of Ontario to take 'affi- davits in and for any of the Courts of Record in the Province for the purposes of and in or concerning any cause, matter or thing, depending, or in any wise concerning any of the proceed- ings to be had in the said Courts (Rev. Stat. Ont.cap, 62, s 38) 4. By a Justice of the Peace or a Magistrate. An affidavit could not be administered by a Justice of the Peace, under this section, at a place beyond which his jurisdic- tion as a Magistrate extends. Hence, a Justice of the Peace in one county cannot projierly administer this affidavit in a different county (Rev. Stat. Ont., cap. 1, s. 8 (22). An affirmation can be administered, instead of an oath and the above persons have full power and authority to take the same and certify to its having been made (Rev. Stat. Ont cap 1, s. 8 (17). ■ ^ Prior to 34 Vic. cap. 14, s. 4, it was held that all affidavits under this Act were useless if made before the May. ' of a for- eign town {De Forrest v. Bunnell, 15 U. C. Q. B. 370). ■' t I! all affidavits MORTOAaES AND SALKS. gS* It Will bo observed that Rev. Stat. Ont., cap Qo « q« t« sufficiency is, that the affidav f fc, Jj'.T^^^^'J'^^""" *« name of the Justice of the Ponnlk «• -^'^"'^ ^'^^ "^t the scribed to the iumt J J ^ ''" '"^^"'" ^^ ^^'"^^ «^^«rn sub- wasinfact'^dS ter :^^^^^^^^ '^^^ ^>^e oath inadvertence Both tltTn 1 '"' ^^''^ ^''''^' ^^^ple search in co lectl! th cITI -T"^'' ''^P^^^^'' ^"^^ re- point in dispute We K • '"'"'^'^ *^ "^"^'^'^t^^ the -«ppo.ofZtt:;t:^--=::rs:- !i-a;sH.' 234 MORTGAGES AND SALES. tion of Lord Justice James in Ex 'parte Hayman7 Ch. Ap.p. 488 while the appellant relied upon the undoubting assent given by AldersoL, B, in Bill v. Bayment, 8 M. & W. 317, to the proposi- tion that perjury may equally be assigned upon the affidavit although the signature to the jurat is omitted. The latter opinion is confirmed by the judgment of the Court of Common Pleas in Regina v. Atkinson, 17 TJ. C. C. P. 295. But we do not consider this to be an adequate or satisfactory test. The real question is, not whether perjury could be assigned, but whether the paper filed with the Chattel Mortgage 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 suffi- cient here to say that the legislature has not been content that a Chattel Mortgage should be merely stamped with good faith, but has required the mortgagee to pledge his oath to its cliar- acter. Still further, it has required this oath to be recorded in the form of an affidavit, which must be sworn before one of cer- tain named officers, and must then be filed along with the Mort- gage. 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 enW, 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 that the creditor should be left at his peril to assure himself by extrinsic evidence of the pre- sence or absence of this requisite. A paper purporting to he an affidavit, but not authenticated as sworn, is quite consistent with the supposition that at the last moment the mortgagee had shrunk from swearing to the necessary statement. We Lave not overlooked the class of cases in which defects in affidavits have been held immaterial, because the object of giving noiice MORTGAGES AND SALES. gSS 'ItVhlT^^^^^^ f t/«^ the instrument on by the officer Luhlr "^ """^ ^^^' ^'^'^^ ^^^^^^^d Act was simply to dve to all tr ,There,the policy of the tence of a cerL^tirnTa^S^^ by his debtor fal" :? ^^'^l f f^^^^ —ted the Act. We cannot homhat sth inf " t- ^' " '"*'*'*^'^ "^"^ he iinds with the Mortc.nl 1 ^formation is given, when have been swo n beforfrv rr""" 1"' f°" '"'' ^^P^^ ^^ ^jj^ n Detore any recognized authority, or sworn at a slip or omission. We mTvToclf T. !"" ^ "° "''''™* «^ the appellant's just clain hft w f ,!u ""' ''''^■'^^" '^'^^^^^^ be to open wid > theto^to ^ T *^"' ^'^ '"PP^^'* ^* ^'^^^^d ev^uhng the sattt; p :U ^fof't ^^ ?? >™^ -^^ of this case been the ilS t ofT ^ '' ^^""^ ^^' '"^ be the offsprii of ^"1/ . •^'.''"''"'^^' "^'Shi in another liberatefra'rSt : "o"^^^^^^^^ f - the commission of a de- -ee of the comn i.::! "t^ ^ '"^ T '''' ''' '"''■ provoke attack The mnvL ^^ ? '''^'' suspicion and fibleand unjust to force tL ...„rr ., ^"g^^y unreason- difficult and often UibltaTkf" T^'- '' ""'"'^^^^ *J- wa. not really securTor o tn^ ""'''^-^"'^ ^'"^''^^ ^^^^ it liable to be l^ by^l ttimZT ' "'^^^'. ^-^"^^ '^ whom the creditor had never hear^"^ ' -mmissioner of C. S. U. C. :X^\l[ ''''''"' o^ -y Act i. that behalf (c). ^%,^J^ol sels duly re- . gistered. 236 41 VICT. CHAP. 8, ONT. therefrom Mortgages of vessels (12 Vic. cap. 74, s. 6; 20 Vic. cap. 3, s. 10; Con. Stat. U. C. cap. 45, s. 15). (6) This section hits a much wider application than is im- plied by the mere words it contains. Whatever is on board a vessel, and is indispensably necessary for the traffic and busi- ness in which the vessel is engaged, constitutes a part of the vessel herself, and falls within the spirit and intent of the ex- ception made by this section to the Chattel Mortgage Act. If it should be held otherwise that nothing is considered as part of the ship " which is not necessary for her navigation or motion on the water, a door would be opened for many nice questions, and much discussion and cavil." It was held, therefore, that a Mortgage of a vessel, with all hei apparel, furniture, &c., passed all the furniture, glass, crockery, beds, bedding, plate, &c., ice, as part of the vessel, and that the Mortgage being of a regis- tered vessel was exempt from registry under the Chattel Mort- gage Act {Putton V. Fay, 9 U. C. C. P. 512 ; see Gule v. Lawrie, 5 B. & C. 150). (c) See Con. Stat. Can., cap. 41 ; 36 Vic cap. 128, D. 1874. A. ]sr A.C T TO PROVIDE FOR CERTAIN AMENDMENTS ^F THE LAW. (41 Vic. chap. 8, On , Eevd. Stat. XXER MAJESTY, by and with tlus advice and consent of cap 119 I — I ftmunded. — ^^^ Legislative Assembly of the Province of Ontario, enacts as follows : — 12. The Revised Statute respecting Mortgages and Sales of I Personal Property, chapter one hundred and nineteen, isj hereby amended by inserting the following after section sis 1 of the said Acts. 74,8.6; 20 Vic. 41 VICT. CHAP. 8, ONT. 237 gainees or mortKa^ees • a7.rl .,r> c„i ^^ "'ade by made shall h. if rl \ Tl °' mortgage heretofore ""e of two^or maae sHaU be invalidated by reason of such affirl.vit k • '""'''^ ^»''- made by one only of sevpr^l L. • ^^'"^ *'"**"'''"' «'' J- iiB oniy ot several bargainees or mortgagees. mortgagees. does not appear that, even prior to this lec^islat ion ^W. ug miomiation as to grounds upon which the claim to ih. «ng mdo, tl,en „„ doubt it would li p,,p„,. t^ eiactTn "ffi feignate by whom it i, to l.„ , , " '""" ^""^ --,ui»ite,„f tit:;!:: t':t,r;j„" ::* ;"" '"= .link, by o„o „, ,evoral a, well L ^ T and Zt af L ' "' "::ratr-ira7Si:j::~^^ ''■Mitchell 11 IT P n p ro- V 'v " " ' '^•. ^e?t;arc? «™eaa,toli,„ititto tbe ca,! ^rjoir™.:^:!!'';: I :' :' :ii :iy 238 41 VICT. CHAP. 8, ONT. were connected in business, either of whom would be aware of all the circumstances connected with the mortgaf^e. But it was held that this contention was untenable, and that there was no reason why the Court should assume that one of two joint mortgagees, even when not connected in business, should not be capable of taking the affidavit with a full knowledi'e of all the circumstances (Severn v. Clc. i;e, 30 U. C. C. P. SG3' McLeod V. Fortune, 19 U. C. K 100). And by this amend- ment the affidavit of bona fides required by sections 5 and G ante pp. 151 and 160 may now be made by one of several bargainees or mortgagees, there being no distinction made, as to the debts secured being in their origin joint or several (Severn V. Clarke, supra). * Re vd. Stat. (2) (a) The said statute respecting Mortgages or Sales of ij C J. I T R 24,' amended. Personal Property is further amended by striking out the ■words "for taking" in the second and third lines of section twenty-four, and substituting the words " or other person in or out of the Province, authorized to take " (6). (a) See ante sec. 24, notes (a) and (b) at p. 231. (b) See Revd. Stat. Ont., cap. 63, ss. 7, 8 and 9. (3) The said amendments to the said statute respecting Amendments in force on 1st Mortgages and Sales of Personal Property shall be deemed January,1878. ^q j^^ye been in force on and from the first day of January last. 43 VICT. CHAP. 15, OKT. 239- ^>^ ACT TO AMKXD THK RKVISKB STATUTK BKSPKCmo MORTGAGES AND SALES or PEESO^^AL PROPERTY. " The Mortgages and Sales of Personal Property Ar>^c., ff^nt Act, 1880." ""i^^^^y -^riiend- {^^ Vict. chap, n, Ont) words: " Wher- L «, /"^ ^""^"^^ed by striking out the -*a --^^enu;.!! 1 1 / '^« ~'- thereof, .. ,^ .^ « -d sixth lines of the said ::Z: ^ '^ '""'''^ '''''''' ^''^ i^) See ante, R. S. O. cap. 119, sec. 7, notes (.) and (.), p. 171. peldllirthe'f n' *'' "'' ''^^'^^'^ '*^*"*° - hereby re- Sec 10 re mm, and the following substituted therefor — Peaied? '" ■K"..; and moZZ " "";"" "«"»■' """l""' P"- '■■»l« I interest of the Kiortg,..gee, hi, executoiB, adiuinia- 1*. 240 43 VICT. CHAP. 15, ONT. trators, or other assigns (/), in the property claimed by virtue thereof, and shewing the amount still due for principal and interest thereon, and shewing all payments made on account thereof (»■ -'• ™o^ eopy. On and after tife „'jt c J of^o X 17"° °° oi the Mortffaxre need nnf ho fii j '-'LcoDer, 1S80, a copy «.« action ptovMe. Jor ffie l""'"'' ™'"'""" *»™f » "^t t..e.tate.o„fanda;.h u :m hr/trrtt''"* ""^^ "''" k« filed. Section 4 of tl,i,. Act prov de L^ t , , 7°""'^ '" ««avit. If .ade^rot it'^iittVcLr"' '°" "■' "^ RevispH «!f„j. i r ""^ provisions of the said'''**''®'"" ««vised statute, may be a general one to t,I.a . , '"''"«'*' '^"rt- or any Morteatres nr ..„ ''"'^ '■*'"^«' all ^*«^^ "'"y l>« gainee(6) conveyances to the mortgagee or bar- " ^^"«^*» »«-• 242 43 VICT., CHAP. 15, ONT. (h) It appears from this section that an authority to an agent to take a Mortgage without more, would not be a suffip°ient authority to the agent to renew. To enable the agent to renew a Mortgage on the same authority as that upon which he took the Mortgage, the authority requires to be " To take ami renew," &c. But a general authority to take and renew Mf>rt- gages or conveyances under the Act, will be sufficient without the authority identifying any particular Mortgages or convey- ances. Of course the authorities are required to be in writing It is to be regretted that the Legislature in this Act did not positively enact that the authority mentioned in the Rev. Stat. Ont. cap. 119, s. 6, was required to be filed as in the case of authorities to an agent under ss. 1 and 5 of that Statute. Theie appears to be nothing requiring the filing under sec. 6 of th.> agent's authority, except the spirit and policy of the Statute. 7. Section seventeen of the said Revised Statute is hereby amended, by striking out all the words in the said section, down to and inclusive of the word "but," where it occurs in the fifth line thereof, and substituting therefor the word "when," and by adding thereto after the words "C.unty Court," in the ninth line thereof, the words following ; "and with the substitution of ten days for five days, as the time within which the instrument or a copy thereof shall be regis- tered " (a). (w) See Rev. Stat. Ont., cap. 119, s. 17, and foot notes ante. R. S. (). cap. 119, 8. 17, amended. 11. S. O. cap. 119, a. 18, amended. 8. Section eighteen of the said Revised Statute is hereby amended, by striking out all the words in the said section, down to and inclusive of the word " but" in the fourth line thereof, and substituting therefor the word " when " (a) (a) See Rev. Stat. Ont., cap. 119, s. 18, and foot notes ante. n^' ^o'^''''' ®- Section nineteen of the said Revised Statute is hereby *mend«dl amended, by striking out all the words in the said section, down to and inclusive of the word " but " in the fourth line thereof, and substituting therefor the word " when " (a). ot notes ante. ot notes ante. 43 VICT., CHAP. 15, ONT. 243 (a) See Rev. Stat. Ont can no o lo ' cap. 119, s. 19, and foot notes ante. 10. This Act shaU not come into force until ih^ a , ^ , OctoWne,,and.a.beciteaas<.;Ter;;;^^^^^^^^^^^^ of Personal Property Amendment Act, 1880.» So^ SCHEDULE (Referred to in Section Three). Statement exhibitinir the interest of P n • .u n^ntioned in a Chattel MoCettfd the^^i:!^"!;;:^ ■ . 18-, made between A. B of T.u one part, and C. D., of the 'f ,r~7^ ^^^ assignee of the said Mort^aee bv \l,T T ' "" . thereof fro. the , aid C. ni^ulUr::,fjl^^,:;il o o * 188»>. January 1, 0».sh received M::;::s;;r:f'!«2i^rTr^ lows:— «oiiais, computed as fol- [Here give tfte computation]. CD. m ^n- "■;: 244 County of REV. STAT. ONT. CAP. 95. ) I> -, ofthe■ -of■ To wit. j in the County of , • the mortgagee named in the Chattel Mortgage mentioned in tho foregoing (or annexed) statement [or a.ssigneo of ■ , the mortgagee named in the Chattel Mortgage mentioned in the foregoing {or annexed statement) (as the case may he), make oatli and say : — 1. That the foregoing (or annexed) statement is true. 2. That the Chattel Mortgage mentioned in the said state- ment has not been kept on foot for any fraudulent puri)ose. Sworn before me at the of in the County of this day of — - 18—. A'E ACT TO AMEND THE LAW OF PROPERTY IN ONTARIO {Rev. Stat. Out. ca2X 95.) HER MA.JESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — Kecital of «». gec. 13. Whereas by the fin^t and second clauses 1 and 2 of 13 . '' Eliz. c. 5, that of the Act passed in the thirteenth year of the reign judgmentw! ' of Her Majesty Qxieen Elizabeth, it is enacted as &c., to hinder fu . or defraud lOllOWS . wid!*"" ^ " ^^^ ^^^ avoiding and abolishing of feigned, cov- " inous and fraudulent feoffments, gifts, grants. REV. STAT. ONT. CAP, 95. _ an,l execu .ons more , .nmonly used and practised m these days than hath been soon or heard of heretofo.. which fooffinonts. .ifts. ,.ant. a la " u "„ hTT"'^' ''?'■'' •^"'^^- j"-%n,ents;nd exe- ^cutu^s have been and are devised or coatrived of mahce. fraud, covin, collusion or guile to the end purpose and intent to delay, hinder an u'Cud red^tors and others of their just and lawfu ae tions suits, debts, accounts, dan.a.es prnle; forf.tures,henot,nu.rtuariesand^duk^^^^^^^^^^ "cut n of r 1'-"" "' '''' ''"^^ — -1 - -reor^inued; all j':::^iz^:;;r::^ alienation hnnmin «», i *=" ' 6''*^"''< ■'mentrhe^rf^ r*^ conveyance of land, tene- '• r thl r'"''' ^'''•^■'' ""^* ^I'^ttels, or of any ■' LftZ' r '"'' ^'^^"' "^^' ^«— -• other profi or charge out of the same lands, tenements heredi aments. goods and chattels, or any of them by writing or otherwise, and all and every bond' " ,?^1 !? ^eg'^^ning of the Queen's Majesty's .eign that now is or at any time hereafter'to be " clared":^^^ ' "'^ ^'T '^*^"* " ^^P- ^e^o L "deemed ani LT"""' '''"" '" ''^^ ^^^^^^-th " persons ht II ""^l "' '^'''''' '^'' P--" or peisons his or their heir.s, successors, executors adminis rators and assigns, and ever; of ttm' wL.,seactions,suits, ..bt.s,accoun ..damages penal ties forfeitures, heriots, mortuaries and fe i'ef bv such guiIefuUovinous or fraudulent dev es and practices as is aforesaid, are or .shall or migl be ^^ any ways disturbed, hindered, delayed or de^ 245 IMAGE EVALUATION TEST TARGET (MT-3) fe // i< i/.J. '(/. 1.0 I.I •^ 1^ 1112.2 1 la IIIIIM u Whit. IL25 ■ 1.4 1.6 V <^ z "^^^J ^ ** Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 \ ^\^ 4^ -\ :\ \ ^1> 246 K«citaIofs. 6, 13 ElU. c. 5, that that Act should not ex- tend to any in- tereet convey- ed for good consideration, 6on Frauds on Sales and Mortgages. of anf ? f , ^"^, ''"" or mortgagor of land, or of any chattels, real or personal, or choses in action, conveyed or assigned to a purchaser or mortgagee or the solicitor or agent of any such seller or mort- gagor, who shall, after the passing of this Act, con- It *°y settlement, deed, will or other instrument material to the title, or any incumbrance, from the ET - -°r%-gee, or falsify any pedigree upon which the title does or may depend, in order to in- duce him to accept the title offered or produced to Tu Z '•';*'"* '"^ ^"^ °^ '^"^^ '^^^^^ to defraud, ^hall be guilty of a misdemeanor, or being found gu^ty, shaU be liable, at the discretion of the Court to suffer such punishment, by fine, or by imprisonment Punishment of vendor or mortgagor for fraudulent concealment of deeds, etc., or falsifying pedigree. Imp. Acts, 22- 23 V. c. ;}5, H. 24 ; and 23-24 V. c. 38, 8. 8. 252 29 VICT. CHAP. 28 D. for any time not exceeding two years, with or witJi- out hard labour, or by both, as the Court shall award, and shall also be liable to an action for damages at the suit of the purchaser or mortgagee or those claiming under the purchaser or mortgagee, for any loss sustained by them or either or any of them, in consequence of the settlement, deed, will or other instrument or incumbrance so concealed, or of any claim made by any person under such pedigree, l)ut whose right was concealed by the falsification of such pedigree; and in estimating such damages where the estate shall be recovered from such pur- chaser or mortgagee, or from those claiming under the purchaser or mortgagee, regard shall be had to any expenditure by them, or either or any of them, c"law i" improvements on the land ; but no prosecution ^*uti-on ^'^^ ^°^ ^^y offence included in this section, against any required. seller or mortgagor, or any solicitor or agent, shall be commenced without the sanction of Her Majesty's Attorney-General for Upper Canada, or in case that otHce be vacant, of Her Majesty's Solicitor-General for Upper Canada ; and no such sanction shall be given without such previous notice of the applica- tion for leave to prosecute, to the person intended to be prosecuted, as the Attorney-General or the Soli- citor-General (as the case may be) shall direct ; and no prosecution for concealment shall be sustained unless a written demand of an abstract of title was served by or on behalf of the purchaser or mort- gagee before the completion of the purchase or mort- gage. APPENDIX OF FOKMS. md Statutes Ontar 10 day Form of Chattel Mortgage, under the Rev chap. 119, ,sec!. 1 {See page ante 100.) This Indknturk, made (in duplicate) tlie _ __ between B.; :;^;;^-^«^g'^th«nd.d and_..^ in the County of_ "^ called " the marU^^^Z^^ TTT' ~^. ■ (hereinafter the --^„ J_ of ^' *'^' ^'''^ ^^'^•' .^«d C. D., of of " in the County mortgagee~')".;rthoWc7nJp;;:r^~^^"'""^'''' '""^^''^ "*^« Witnesseth^^hat U.e mortgage fo, and in consideration of of Canada to himTnhand'^rTr,^''"''"'' "^ ^''"^^"^ '"^'^'^y at or before the" l^l^^r"^^^^^^^^^^^^ ■eceipt whereof is hcrebvnrkn T? I \ ^ ^'''^"*'' (^^e gained, sold and Li'neratd bv f/"^ ^ '^^^ ^"^"*^^' ^- I'argain, sell and assi:, m.to 1 ^ ^ ''''"''' '^"^ ^^^'^*> ■ administrators and a^ t" „ T "7*="^'^' ^' ^^«'^"*«^«. personalproper^I^:X;s:l:ir^^7r-'^"^^^' and described that is to say, (Ct^S Tr^ 7"'""*^' description of each artn'h Z'/".^'; "'f^^ « A^^ and accurate «ia good.,, ia::t:;:;xt;ittT:^^^^^^^^ '" "'■'"- 254 APPENDIX OF FORMS. istrators and assigns to the only proper use and bulioof of the mortgagee, his executors, aduiinistrators and assigns i'orevor • Provided always, and these Presents are upon this express con- , " '''^■'' '"'='' <'«""'"'I shall arising out of 'thrTand'^^T^"'' '""' ^"'^ ^"^ ^"y '^' rent and lying the said Totu TT^ "P"" ^^'^'^ ^''^ ^^^uate currency of these pfr. ' '^"'^' "*^ ""^ *""« ^""ng the shall beTollZ^ttdrutT in ^^n "^'^'^ *^^ -- ance of any of the co'tl bv tt 7'^ "-''^ P^''^^"^" sents contained : Then and in ...h ^^ ^">'"' ^" ''^^^« P^^' be lawful for the riZ e his 0!"' ,^''" '"' ™^^ assigns, with his or thefr s™t o, ' . "'°''''""*"^^ ^'^ other assistant or ^^sZ^TC oTZX:' "'" ™^' anytime durin.. the dav fr, Z, . ^ ""^ ''^1"'^® ^t and tenements houses and nrl" '" ' '"^^ "P'^" ^">' ^^^^-^ ever, where the said 'odsT't' r^?'"''"^^^ ^"^ "^^^^^o- doors, bcks, bars hnlf« fa.^. ■ , *'^'""'' ^P^" any , ^"■''' "*"•''. wits, tastenings, hinws CTflf 00 f,„„ u buildings, enclosures, and places for f^ ^' '' ^°"''''' Fssession of and ixm .ovit tL J'.o d ''"?"? '' '^'^'"^ upon and from and after IhetlkW ^ ^°^ '^""^^^' *"^ and chattels as aforesai i sV; ^ ° r''''^^"'^ "^ ^"^^^ g°«d. -rtgagee. his eJ::^^; ^^.Z^^:::^^ '^ ^-^"1; and the any of them is and nrp ],! T !l '^''^'' ^""^ ^^ch or sell the said goods and chatt!^ ""'"'. '''' ^'"P^^-^'^ *- thereof, at pubt tctt or StL^^^^ " ^t^'^^' ^^ ^^^ ?-* of them miy seen, melt ^ *' ''^'' '' '' ^•"^' ^^«"^' ^^ any Pi- 1';;:2 :eimbu:t\^mr^ 1 -^^ -^« ^•'^ *^e «-^ -^""^^oLioneyar::^^^::^--^-^;-^ -S6« APPENDIX or FORMS. of these PrcseiitN, and all costs ami expenses an may have been incurred by tlu; mortgagee, his executors, adnuniHtrators or assigns, in conse«iuence of the default, neglect or failure of the mortgagor, his executors, administrators or assigns, in the pay- ment of the said sum of money, with interest thereon, as above mentioned, or in conse([uenco of such sale or removal as above mentioned, and in the next place to pay unto the mortgagor, his executors, administrators and assigns, all such surplus an may remain after sueli sale, and after payment of all such -s\i,ii or HnniH of money and interest thereon, as may be due by virtue of these Presents at the time of such seizure, and after payment of the costs, charges and expenses incurred by such seizure and sale as aforesaid ; Provided that the n)ortgagee, 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 incumbent on the mortgagee, his executors, administrators or assigns, to sell and dispose of tlie said goods and chattels, but that in case of default of payment of the said sum of money with interest thereon, as aforesaid, it shall and may be lawful for the mort- gagee, his executors, administrators oi- assigns, peaceably and quietly, to have, hold, use, occupy, possess and enjoy the said goods and chattels without the let, molestation, eviction, hin- drance or interruption of him, the mortgagor, his executors administrators or assigns, or any of them, or any other person or persons whomsoever ; And the mortgagor doth hereby, in manner aforesaid, further covenant, promise and agree to, and wjth the mortgagee, his executors, administrators and assigns that, in case the sum of money realized under any such sale, as above mentioned, shall not be sufficient to pay the whole amount due at the time of such sale, that the mortgagor, liis executors or administrators, shall, and will forthwith, pay or cause to be paid unto the mortgagee, his executors, administrators and assigns, all such APPENDrX OF FORMS. 057 :i.::::;^L:;n:,::::v;^r::r::r'""V^- 1 resents 111 the name of .,11 ♦!. > -i • "o "J nun tlieso «ii..g and .1.1:;:; ,,:;„:". "^ «"' "°°''' ""• *«"^'i» « the. .nJ chattels hceinbofo,. miti:::;!^ f^ ^r:, 'n 'T Mta,,. a„,i will f„y „i, p,,„,i„„„ ^„,, ,,,— ;;--r.; t^o, hi, exc-cto,. a„/a.i.i„i,t^t„; ;,: Hit;:,"'!,;"'' • rf .nsmanco a„,l .oceipt, the,^t„ appc.,taim„,r ' ''°'""' .fo,.,air«?2t r:?:^:;;^':""', '-' -' '"- ""■" VV the ,a„„, a,>d »uchs rot ™„"^l..°,'r'"n '?'''• ""'^ debt hereby sccuMd ^,,,,1 T" °' """"y »hall bo ad.led to the Signed, Sealed and Delivered, \ in tlie presence of ' t (having been first read over \ [L.S.] and explained). ) 17 w 258 APPENDIX OF FOKMS. II. Form of an Affidavit of Buna Fides to Acconqmny above Mort- gage, under Revd. Stat. Ont., chap. 119, ss. 1 and 2. {See ante pages 100 and 137.) OXTAEIO, County of TO wit: { I, C. D., of the of of in the County - , the mortgagee in the foregoing Bill of Sale by way of mortgage named, make oath and say .- That A. B„ the mortgagor in the foregoing Bill of Sale liy way of mortgage named, is justly and truly indebted to mo, this deponent C. D., the mortgagee therein named, in the sum of _ dollars mentioned therein; that the said Bill of Sale by way of mortgage, was 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 goods and chattels mentioned in the said 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 obtaining payment of any claim against him, the said A. B. Sworn before me, at the of , in the County of this ______ day of in the year of our Lord 188._. X. Y, A Commissioner, c&c, Jtc. CD. APPENDIX OF FORMS. in. 259 "'"'^^::££is-.t--:--T- Ontario, County of to wit : ('S'ee ante page 100.) I. tf- II., of the _. J"of~ ; of in the County -, {here insert ocoupa- A.B.,oneof' hepJi^X ^ ^^^^^^^^^ -^ --^^d by subscribed, as a witnoss to thl ol . }' "^"'^ ^- H> «et and Wwnting of n.e tC p r^^ of the proper euted at the _of "''"'^ '"^^^ ''''®- Haid County of. , in the Sworn before me, at the ^ . in the County olr- '^" day Lord 188l. "" ^^'^ ^^"'' '^^ «"^ X. Y., ^ A Commissioner, dtc., dtc. G. H. IV. Ontario, ^ t f t^ < xi. County of__^: | J^F^the __ ^^ TO WIT : j of '^ the County «ath, and say : ' ' , make 260 APPENDIX OF FORMS. (1) I am tlie properly authorized agent of C. D., the mort- gagee in the foregoing Bill of Sale, by way of mortgage named, for the purposes r.f the said Bill of Sale, by way of mortgage^ and I am aware of all the circumstances connected therewith. (2) I have been properly authorized in writing, to take sueli said Bill of Sale by way of mortgage, and the paper-writing, marked "A," attached to the said Bill of Sale, by way of mort- gage, is a true copy of my authority to take such mortgage. (3) That A. B., the mortgagor in the foregoing Bill of Sale, by way of mortgage named, is justly and truly indebted to CD., the mortgagee therein named, in the sum of dollars, mentioned therein. (4) That the said Bill of Sale, by way of mortgage, was 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 goods and chattels mentioned in the said 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 obtaining payment of any claim against him, the said A. B. Sworn before me, at the of , in the County of '. this tlay of_ ,A. D. 188 E. F. X. y., A Commissioner, goods and chattels therein a £i::''„"''8"'»'*^-J mentioned and described, that i, to s ™ PaH.cnlarly .nJ;?xi:crrttr:::r-rtr"'"f-"°''«'«»' chattels, and every of them wifh tti ^ '""' «""* "■"• »H assignee, his^Ji-^di'Trstn? S m^t^ST' '° '-^ P-'-'"- -^-P«on context mittlrllXeotairw^^^^^^ -- ^^- ..ec^to., administrators anraT^jfth^t S sZTnl 'S ^"te at;;;;;i^:7;;;^^i;- '°"°"' "" 'f 7 *'-". >' *» « now justly due, "win^l^iili^^^u^jrandir^S^; the sard mortgage, and that he has not done or nermitL / matter or thing to be done wherehv .1,. ■ V '^™""='' ""y act, released or di-harged,rrThetfd g olfaJetf^l''" '"" necessary for furthT a^„ri„, fbe . ""■ "''™'' '^'^y ■«' good, and chattels, anrfreS£orein?th'"°"'r' """ ™"'^' covenant, and other m.tter:tZferoa.s, the .said ijargalnor is poHsessod of the j,'oods, chat- tels and personal cH'octs, hereinafter set fortli, (U'scrilied and enumerated, and liaili contracted and at^reed with the said l)argainoe, for tho absolute sale to him of the same, for the sum of dollars, anil these Presents are intended to carry out such contract and agreement; Now this Indenture witnesseth, that in pursiiance of tlie said agreement, and in consideration of the sum of dollars, of lawful m neyof Canaila,now paid by thesaid bargainee to the said bargainor, at or before tho sealing and delivtsry of these Presents (the receipt whereof is hereby by him acknow- ledged), he, tho said bargainor, hath bargained, sold, assigned, transferred and set over, and by these Presents doth bargain, sell, assign, transfer and set over unto the said bargainee, his executors, administrators and assigns, all those, the said goods, chattels and personal effects, hereinafter described, that is to say, {here inseti a particular description of the goods intended to be sold) all which said goods, chattels, and effects, are now in the possession of the bargainor, and are situate, lying and being on, upon and about {here get out accurately the premises where the goods, d-c, are at the time of the execution of the instruvient) ; And all the right, title, interest, property, claim and demand whatsoever, both at law and in equity, or otherwise howsoever, of him the said bargainor of, in, to and Qut of the same, and every part thereof : To Have and to Hold the said hereinbefore assigned goods, chattels and effects, and every of them and every part thereof, with the appurtenances, and all the right, title and interest of the bargainor thereto and therein, as aforesaid, unto and to the use of the said bargainee, his executors, administrators and assigns, to and for his and their sole and only use for ever : And the said bargainor doth hereby for himself, his heirs. APl'KNDIX OF FOIIMS. 207 following, that ^ i i; t^^,:' /''^''''t:'"^'- '" •— • •-.•^ assign., ,.,.,, ^,;; X::^ -;! -^tl.. to t^.o .ua a.Kl every part thoroof: An.l th tt H i T .""'^ '^^ "'""' in hi.Msolf ,.00,1 ri.rht ,/''"/''\^/''^' ■^'^'<1 ^-ar^minor now has presents .• ^ ^" "'' ''""'' "'^^'"^ '^"'J »>^"aning of these the said hiiv ^st:^ ;:;i^ M;;ir ' 't- ^-^^ "^^' and every part th..,eof toZTf f .' "'"^ '^''"^^ "^ "'«'" benefit, wilut a ^ Tnanno, " hin '" '"' ''"" """ ""'' ^"^^ tation. clain. or den a" jlt.fr':^;"'""'^^^"' •"^^^■^- bargainor, or any other ZT ' ' ^'■^"'' '''' ^^ ^^« «aid that free and Z, and r, " FT"' whomsoever; and discharged, or otWw^so T^"" ""' "^'^'^"'^'^ ^^^^^^^ -"^ etfectuily ndeniieT^^ L^^^ f '''*' °^ *^^ ^^^"^ bargainor). bargain,'saro"grar tiTr'^' '" 'T^^ ^"^ «*'^- whatsoever; ^ ' ''' '^'''■^'" ^'^^ encumbrances terest of in or to the sJ^^ V T ^"^ '''"''' "^'^*' «*^« ^^ i^- effects, and eve ^ of them a': l^ ""^"^' ^'^^'^•^' ^^^^^^l^' -^ wilUrom time to tVm S It JlT ^T ''"^^'' «^^" ^^ reasonable request Jtie si n " ^'"'^^'''' "P«" «^«ry istrators or asl^^ 1^^,^! bargamee his executors, admin"- gainee, make, dt a^d execut or ' '^'''^'^ '^ *^^ «^^^ ^ar- done and ex.utetanrUriLT^^^^^^ -^«' of the same for thn m^.^ «■ / iV ' ^^^ ^^'^ assurances his executors, administrators or bbJLTZ J^^'""^^- 268 APPENDIX OF FORMS. a.s by the said bargainee, his executors, administrators or em- Higm, or his or their counsel in the law, shall be reasonably advised or required. In witness whereof, the said parties to these Presents have hereunto set their hands and seals the day and year first above written. Signed, Sealed, and Delivered ) in the presence of j A.B. [LS.] X. Form of Affidavit of Bona Fides to be made by the Bargainee, and to accompany a Bill of Sale (Form IX. aJite) under Revd. Stat. Ont. chap. 119, sec. 5. {See pacje 1.51.) I, C. D., of the- ^ I,C. Jof ^ — of , in the County Ontario, County of TO WIT: the bargainee in the foregoing Bill of Sale named, make oath and .say : That the sale therein made is bona fide, and for good consideration, namely, in consideration of the sum of "» thu County of -"' ^^'^ >ny solo ::lXr:^rn f '^ ""• '^"'' •" ->' '--^ A- -B., of tl,e ; '"'''*■ ^" ^^^' ""d I't'ceivo from one „«;,. p.. V , in tlic County of .. '^"d fornll an.I oven of 1 ^ " ' '"' ''"'' ^^'^ l'"''^^'^'^'^ thoreof. -"> .-ant unto n.y s i , 2on^"^'^?''''''• ' ''' ^^^''y give authority to do pe.fon „ t '"'^ ''^'"'■"">' ^"" ^'''''' ^"d tors necLarv to h ' \-'-'''''*' "'' "'^t'^' deo.ls, and nmt- take necessary t. bl T P''^'""'^' '^"^ ^" l..oceedi«.,s to in that beha f • oth^l" ""u" '"'^ '^ "'"•^^ "^ '^"^ «ta"tute «ii«es; I hereby rat"'' ^7''''^'' '" ^"^ '^bout the pre- by ag;oei.t o\Ti f^^^^^^^ ^"^ ^"«-"^' -d hero, 'ny «aid akt anl .. '"V""^ ^"''^' *" ^"^ whatsoever done by vfrt^e ToLT^'"''' '''' ^^"'""^ '^ ^ -- ^ ^^ In^ witness wher.of I have hereunto «et .y hand and seal. K,.« 1 1 , . - — ' *^'^*^ thousand eicht liundred and eighty . ^ Signed, sealed, and delivered ) in presence of / ^ D. [L.S.] 272 APPENDIX OF FOUMS. XIV. Form of a Chattel Mortr/age, under Revised Statutes, Ont. Cliap. 119, sec. 6, to secure Future Advances. (See ante p. 100.) This Indenture made (in duplicate) the day of , one thousand eight hundred and between A. B., of the of . in the County (hereinafter called the of , " mortgagor ") of the First Part ; and C. D. of the._ of in theCounty of , (hereinafter called the " mortgagee ") of the Second Part ; Whereas the said mortgagor has applied to the said mortga- gee for future advances in money, and for the purpose of enab- ling the mortgagor to enter into and carry on business with such advances, the said mortgagee has this day consented and agreed, upon the agreement of the mortgagor to execute and deliver these presents as security to the mortgagee for the repayment thereof, to advance to the said mortgagor thesumof dollars, in three sums of __dollars each, the first whereof is to be advanced to the mortgagor in one month from the date of these Presents ; the second whereof in two months from the date of these Presents ; and the third wliereof in three months from the date of these Presents, and in consideration thereof the said mortgagor has this day agreed to execute these ' presents in order to secure the repayment of the said advances ; it being understood and agree« tioned and d;sLb.r rr^x/ufrt ''""!'""'^ ™"- niarki-H " A '■ t tt ''Chedule hereunto annexpd ^^s .hl,3 petL"' '" ?" ^" '"" ™="»'-. *" -^ pantd,u™'J™?^ P7«''J'./«<1 effects hereinbefore » to be'untoire 1;^,' 7:f:^:zT''7 '■"™*^ -igns, to the sole and^^ ^r^^d blitHhr" f"' goe^ h.s ezecuto,., ad„inistL« and assi JTL evt °''^- -^Jgee. his e.ec„tors admini, ,„„ „:1™;: the^it temt at the «te of ^ ^ "' p rtntl '" ''""°" '^"' '- date of the se.en.1 ad-^^n™ ^ to b " "T """""' '''°'" *' Bueh advances, and do, and! well and w" ''"r"',™ the said ffloHKasee of and lr,,J.^, l,^ '""^ harmless of these Pres^ntl thenlie P? e °" at ™°°" '^ '^"°" thing herein contained .b,lr ' "'"^ """'<"■ and void°to all in^ntand p r;"ralS:"h"''°*' '= ""^"^ the contrary thereof iS aCwirno wlhr".™'"™'' '» mortgagor for himself, his exeTntors a„!i ' d ?^' °'""'"' and wiU warrant and for eve'l" tad f "-^ ""'"'r'""'"'- *al. Binguiarthe said goods anT chaS, ^ i^ """ ""'" ".ortgagee, his exLtors .dmSator 7""'^ ""'" *° him, the mortgagor, his e^ZZTl^ and assigns aga'nst against all and i^ink al 1^0^ other r'*"'""' •«"* whomsoever; "^'^ °™er person or persons aad^i^rrLtant'tof-'"^ 'T" ''" --'»- 'he mortg^e, hlsTertL '"IIS 1^1:7°' """ that he, the said mortgagor, his^xecutTrr miirr„:' 274 APPENDIX OF FORMS. Bome or one of them, will well and truly pay, or cause to be paid, unto the said mortgagee, his executors, adm inistratora or assigns, the said sum of ___ dollars, in the above proviso mentioned, with interest as aforesaid, on the day, and time, and in the manner above limited for the pay- ment thereof ; And in case default shall be made in the pay- ment of the said sum of money in the said proviso mentioned, or the interest thereon, or any part thereof, or in case the mortgagor shall attempt to sell or dispose of, or in any way part with the possession of the said goods and chattels, or any of them, or shall attempt to remove the same or any part thereof out of the County of _ —without the consent of the mortgagee, his executors, administrators or assigns, to such sale, removal or disposal thereof, first had and obtained in writing, or in case the said mortgagor shall suffer, allow or permit a judgment to be obtained against him for a debt in any Court of Law or Equity, or shall suffer, allow or permit any taxes, rates, duties or assessments whatsoever for which he now is, or hereafter, during the currency of these Presents, may be assessed, to remain unpaid or uiisatisfieJ for a period ^of seven days after demand made therefor by the proper officer in that behalf, or in case the mortgagoi' shall fail in paying his rent arising out of the premises upon whicli the said goods now are or hereafter may bn during the continuance of these Presents six days at least before the same becomes due, or in case default shall be made in the performance of any of the covenants by the mortgagor in these Presents contained, tlien and in such case it shall and may he lawful for the mortgagee, his execu- tors, administrators or assigns, with his or tlieir servant or servants, and with such other assistant or assistants as he or tliey may require at any time during the day, to enter into and upon any lands and tenements, house and premises, wheresoever and whatsoever, where the said goods and chattels, or any part thereof, may bo, and for such persons to break and force open any doors, locks, bars, bolts, fasten- ings, hinges, gates, fences, houses, buildings, enclosures and M APPENDIX OF FORMS. 275 taking possession of sucwL ^ ?' l"*^ ^''^' ^"^ ^f^^'" th« shall and may be lawful .fwf ^""^ '^^^^'^^ ^ ^^«^««aid it -inistrators or L^I^rd .tr"'""'^"!' ''^ executors, ad- hereby authorized afd^Jpl,: 1/;^^^^^^^^ ^^^ -« chattels or any of them or oT x , ^ *^® '^'^ ^^o^s and or private sale'as to ^m them^C/^'^^^^^^^ '' '^'"'^ -^«- and from and out of th. T^ of them may seem meet: P^-e,topayan:Ll tES?o;V"\"^^' '"^ '''^ '^^ ana .ums of money as mavthen bi 7 ^^f '"selves, all such sum -ula, and all such'lxpenrarm'v h" I "''"' ^' '""''^ P^ "mortgagee, his execuLs X2,.«r '" ^"'"^^^^ ^^^^ quence of the default, negl^t T ^^^^^^^^^^^^ ^ — executors, administrators or assies n 1 "^'"'S^gor, his said sum of money with inlw T' ^' P*^"^'"* «f *he or in conse,uenee^of::S.T^: : ra"' ^ 1^^ ^"-^?-^^' and, m the next place, to pay unto thl T ' "mentioned, tors, administrators and asSs "n ^,™'''»^' ^^' «^«eu- -ain after such sale, and X p^ 1 nt ITtu' \ "^^ '^ suras of money, and intPrP«f +i. ^''•>'™ent ot all such sum or of the* p,ei ;;,««: :t' "• ""^ '"= ""^ "-^ "-'"o of the cost.,, chawcs and 1 v! '""''-*' ""'' ■>'""■ P»y»>ont sale a» af„,;saia " '^ " '"™™'' ''^ •'"«'' »oi.ure and interest or instalment, hiZT f ^ * "f 'ho payments of H.ore„f,distra,„foTt twh ° '1°'° 7"""°""' "' »"^ P^' Piovided always „ e Iti "?f r,',' ""'° ""'«' ^ sell a„d .lisp;,: of H st d™ oT ""Tr"'"""" "' ■■■«'8°". '» of default of payment of if , °'""'°'^' •"" """ '" oase thereon a, afo'iaW i L J' ™'". f ""°"">- ^"''' '"'--' Soe,his«eeuto,-s adml, ,t ,i ^ ^ '^-ful for the mortga- ly to have, h„M;„::Tc t; ,r''"'^r''"''~'''y»"'''i>"et. attoi. without zv:z;xr':^f' tt'- ■ -'-^"^a^O", cVH;tion, hmdrance IW ant 276 APPENDIX OF FORMS. or interruption of him, the mortgagor, his executors, administra- tors or assigns, or any of them, or any other person or persons whomsoever ; and the mortgagor doth hereby further covenant, promise and agree in manner aforesaid, to and with the mort- gagee, his executors, administrators and assigns, that in case the sum of money realized under any such sale as above mentioned shall not be sufficient to pay the whole amount due at the time of such sale, that the mortgagor, his executors or administrators, shall and will forthwith pay or cause to be paid unto the mort- gagee, his executors, administrators and assigns, all such sum or sums of money with interest thereon as may then be remainino- due ; as well also as all costs and expenses as aiay have been incurred by the mortgagee in and about such seizure and sale ; and the mortgagor doth put the mortgagee in the full possession of said goods and chattels by delivering to him these Presents in the name of all the said goods and chattels at the sealing and delivery hereof; And the mortgagor further covenants with the mortgagee that he will, during the continuance of this mortgage, and any and every renewal thereof, insure the chattels and property hereinbefore mentioned, against loss or damage by fire, in some insurance office (authorized to transact business in Canada) in the sum of not less than- dollars, and will pay all premiums and moneys necessary for that pur- pose, three days at least before the same become due and will, on demand, assign and deliver over to the said mortgagee, his executors and administrators, the policy or policies of insurance and receipts thereto appertaining : Provided, that if on default of payment of said premiums or sums of money by the mort- gagor in manner at the times aforesaid, the mortgagee, his ex- ecutors or administrators, may pay the same, and such sums of money shall be added to the debt hereby secured (and shall bear interest at the same rate from the day of such payment) and shall be repayable with the principal sum hereby secured. And in consideration of the execution of these Presents the said mort- gagee covenants for himself, his executors, administrators and APPJMDIX OF TOBXa. 277 Signed, Sealed and Delivered ) in the presence of j A. B. CD. [L.S.] I i' m' XV. ^"^^ a Mortgage (see Forra XIV.) seoun.^ pXreZ vances under Revd. Stat. Ont chap. 119 ^eTe County of TO WIT : of_ {See ante, p. 160.) I. C D., of the }. foregoing BiU of Sale hv xc.^f ZT' ^^"^S^^^ m the and sav ThaffL f ^ ^ "^"^^^^^ "^^^'^^ ^"^ke oath »na say . ihat the foregoing mortgage tralv sets fnrfl, fi, a^eement entered into between myself and A B ht .' and truly states the extent of the iabU^ttf; . T. J""'*** -d by sneh agreement, and cov^^rd^^r f^r^^^^^^^^ That the foregoing moiigage is executed in good faith an^ 278 APPENDIX OF FORMS. attached hereto, marked " A," against the creditors of the said A. B., nor to prevent such creditors from recovering any claim •which they may have against the said A. B. Sworn before me at the of , in the County of this day of in the year of our Lord 188 A Commissioner, "^^ ^«y-^ '^^ P-iod of one year trom the date hereof, nor increase the amount of said liabilitv beyond the amount of said interest accruing the eon) and rfasonoflh" f' "'^ '^ '^'''^'^ ^^ ^^« Zt^ge^ Treof ^"'^^^-^-^ «^-id recited note or an/re1.ewa'[ an^irlf •?^T-'"'''r'^'^^'*^ that the said mortgagor for dol of rfr" V^' P^*^"^^^^' ^"d °^ the sum !f one t" bv th?^""7 '' ^^"^•^^' *« '^^ ^'^ J^-d well and truL paid by the said mortgagee, at or before the sealing and delivery of these presents, (the receipt whereof is hereby acknowkdldV doth grant, bargain, sell, and assign unto thfsaid ml tXe ' his executors, administrators, and assigns, all and singular the Sd^t"^'^ ''iT''. '^''''''-'y -ntionTa d de! scribed that IS to say .- (ffere insert a particular description of th. goods and chattels to be raortgaged) To Have and to Hold all and singular, the goods and chattels hereinbefore ^ranted boTnT; hfa-r' T"^'"'^ "^^^^^^"-^'- intrdfdTot assils to ir r ""^''' '" "''^"^""^' administrators, and assign. the only proper use and behoof of the said raort gagee, his executors, administrators and assigns frver Pro videcl ahvays, and these Presents are upon thl condition' that' ^f the said mortgagor, his executors or administrators S; and hall we I and truly pay, or cause to be paid the sa d n;t; so a^ aforesaid endorsed by the said mortgaged at maturity, a 0?; o1 which said note is set out in the recital to this Inden ure Li do and s all well and truly pay or cause to be paid ^fand ;ve;y other note which may hereafter be endorsed by the said morf gagee for the accommodation of the said mortgagor by ^ly 280 APPENDIX OF FORMS. of renewal of the said recited note in the said recital to this Indenture set forth, which shall not extend the liability of the said mortgagee beyond one year from the date hereof, and all interest in respect thereof and indemnify and save harmless the said mortgagee, his heirs, executors, and ad- ministrators, from all loss, costs, charges, damages, or expenses, in respect of the said recited note or renewals, as hereinbefore set forth : Then these Presents, and every matter and thing herein con- tained, shall cease, determine, and be utterly void to all intents and purposes, anything herein contained to the contrary thereof in anywise notwithstanding ; and the said mortgagor for him- self, his executors and administrators, shall and will warrant and forever defend by these Presents, all and singular the said goods, chattels and property by these Presents unto the said mortgagee, his executors, administrators, and assigns, against him the said mortgagor, his executors, and administrators, and against all and every other person and persons whomsoever. ; And the said mortgagor doth hereby for himself, his exe- cutor" and administrators, covenant, promise and agree, to and with the 3aid mortgagee, his executors, administrators and as- signs, that he the said mortgagor, his executors or administrators, or some or one of them, shall and will well and truly pay, or cause to be paid, the said recited note in the above recital and proviso mentioned, and all future and other notes which the said mortgagee shall hereafter endorse for the accommodation of the said mortgagor as aforesaid, and all interest and incidental ex- penses to accrue thereon, and will well and truly indemnify and save harmless the said mortgagee, his heirs, executors and administrators, from all loss, costs, charges, damages, or expenses in respect thereof ; And also that in case default shall be made in the payment of the said recited note, or any such renewals as in the said pro- viso mentioned, or the interest thereon, or any part thereof, or otherwise, as aforesaid, or in case the said mortgagor shall at- tempt to sell or dispose of, or in any way part with the posses- APPENDIX OF FORMS. 281 aion of the said goods and chattels, or any of them or remove ^thntrr "^ P"' '"'''''''■ «"^ «f *h^ County of IITI' ^Sstr tt rr'^'/'" f'^ mortgagee, his'^executors, ad: ^rlt tad and T'''^ ' '"'^ ''^'' '''^'''' «^ ^^«P««-1 ^^-eof sha 1 not nfv ft ;°"^ '" ^"""^' «^ ^'^ «^- «-id mortgagor shall not pay the taxes on said premises, or on said good! Within seven days after the same has been lawfully demanded or shaU not pay h,s rent for said premises six days at least be- fore the same becomes due. then, and in any of such cases it shall and mav be lawful fin^ +1,^ • 1 -y "' ""^^ cases, it on^ -lu , , s"**' "^"" ftJs or their servant or servants mnZeZt ?^«^;-^*-^ or assistants as he or trerm^' 3 !' V T' '^""'^^ *^' ^^y> ^ «»t«r into and upon anv bland for' ^ ^ ^'^^ ^"^ ''^***'^«' «^ ^°y P^rt thereof may be and for such persons to break and force open any doors loTkT -aid goods andSfli ^^^T^"'' ^^ ^^mg possession of the SsselTon of u J ^""^ "P'° ""'^ ^'^"^ ^'^d after the taking « n.ay then be due on the aaid redtedTot; 'r Z tZ7 h-r Lf;^iit;re^d°"ii:"^ r"— - ' -h 282 APPENDIi: OF FORMS. trators, or aanigns, all such surplus as may remain after auch sale, and after payment of all such sum and sums of money and interest tliereoi. us he, the said mortgagee, shall be called upon to pay, by reason of endorsing the said promissory note, in the said recital and proviso mentioned or any future notes to bo endorsed by the said mortgagee for the said mortgagor, as aforesaid, at the time of such seizure, and after payment of the costs, charges and expenses involved by such seizure and sale. or otherwise, as aforesaid : Provided always, nevertheless, that it shall not bo incumbent on the said mortgagee, his executors, administrators and assigns, to sell and dispose of the said goods and chattels ; but that in case of default in payment of the said recited note or renewals thereof, as aforesaid, it shall and may bo lawful for the said mortgagee, his executors, administrators and assigns, peaceably and quietly to have, hold, use, occupy, possess and enjoy the said goods and chattels, witho'ifc the let, molestation, eviction, hindrance or interruption of him, the. said mortgagor, his executors, administi'ators or assigns, or any of thoni, or any other person or persons whomsoever ; and the said mortgagor doth hereby for himself, his heirs, executors and ad- ministrators, further covenant, promise and agree to and with the said mortgagee, his executors, administrators and assigns, that in case the sum of money realized under any such sale as above mentioned shall not be sufficient to pay the whole amount due at the time of such sale, tliat he, the said mortgagor, his oxecutoi-s or administrators shall and will forthwith pay, or cause to be paid unto the said mortgagee, his executors, admin- istrators and assigns, all such sum or sums of money, with inter- est thereon, as may then be remaining due upon or under the said promissory note or any renewals thei'eof ; And the said mortgagor doth put tlie said niortgage(! in full possession of the said goods and chattels by delivering to him these Pre- sents in the name of all the said goods and chattels at the seal- ing and delivery hereof : And the said mortgagor covenants with the said mortgagee that he will, during the continuance of this mortgage, and any APPENDIX OF EORMS. S88 .nd eveiy renewal thereofjnsure the chattels hereinbefore mentioned aga.nstjoss or dan^age by fire in some insurance iTuitrl'' *™-^-^ess in Canada) in the su^f ^unns and -n^y^ssa^for^';;^ ,^^ least before tho>me become due: and will on demand „ i^ mi^istt;:: T '"^ ^'^ "•' '"°^*=^'^^-' ^is executor an. T- muustrators, the policy or policies of insurance and receipts thereto appertaming ; provided, that if on default of pl™^ «aidto'^""^" ""'^ ^' """^^ "^y ^^« -^ mortgagor the !me ?h^T''?'' ^"^'^^^^^^ ^"^ administmtors, shall fay the same; then^such sums of monev shRll l.« n.^A a * P*J^/|^^ In witness whereof, the parties to tte=« presents have heremto seethe,,, hands and seals, the day and^ear Brst abovow't! Signed, Scaled and Delivered ) esence of J m presence A. B. [L.S.] XVII. Ontario, County of TO WIT: !.7 I, C. D., of tlie_.. -of -in the County the mortg^ee in the foregoing Bill of Sale.'bT^^f ^ort^^e named, n,ake oath and say that the above nfortgTge t™ly°l: SM APPENDIX OF rORMS. forth the agreement entered into between me, C D., and the Haid mortgagor therein named, and truly states the extent of the liability intended te bo created by such agreement, and covered by such mortgage, and that the same was executed in good faith and for the express purpose of securing me, the said mortgagee therein named, against my endorsement of the said promissory note for _ dollars for the said mortgagor, or any renewals of the said recited promissory note as therein set out, and against the payment of the amount of such my lia- bility 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 mortgagor, nor to prevent such ere- tors from recovering any claims which they may have against such said mortgagor. Sworn before roc, at the . of . — , in the County / of this day f 3 ; CD. of- , AD. 18- A Commissioner, Sic. XVIII. Form of an Affidavit of Bona Fides, to be made by an Agent of a Mortgagee of a Mortgage (see Form XVI.) taken to Secure a Mortgagee against Liability under his Endorse- ment (R. S. 0. chap. 119, s. 6). (See page ante 160.) Ontario, County of- X I, E. F., of the- _. y ihe County of- -of- _m TO WIT : ) make oath, and say : (1) The agreement set forth in the foregoing Bill of Sale, by way of mortgage, was entered into, and the said mortgage was APPENDIX OF FORMS. MS taken by mo, for, and on belialf of r n ft.« • i tno aa.U L. D., to make such agreement and to take s.,oh' ;-ga^.;a ram aware of aU the circumstances ^^^^ (2) The paper writing attached to ,,,d mortgage, marked "A " 18 a true copy of my authority to make such agreemlt and ^ take such said mortgage ; «breemtnt, and to mw Detweon C. D., the mortgagee therein named, and the said mortgagor therexn named, and truly states the ixtent of the ^abihty intended to be created by such agreement and cove ed ir^aT^' ^"' '''' ''' ^^"^^ ^- executed ir;::' aith and for he express purpose of securing the said mort^rLe theorem named against his endorsement of fhe promisso'^S „„, ; ~ dollars for the said mortgagor or any renewals of the said recited promissory note, as therein se out and against the payment of the amount of tie m 1" I's the purpose of securing the goods and chattels mentioned therem against the creditors of the mortgagor, nor to prevent soch creditors from recovering any claims which they mrhave against such mortgagor. -^ Sworn before me, at the v °^ , in the County / of this day f , A. D. 18__. ; A Commissioner, dv. of_ E. F. 286 APPENDIX OF FORMS. XIX. Form of an Affidavit of Bona Fides to be made by an Agent of a Mortgagee of a Mortgage taken to secure the repay- ment of future advances, see Form of Mortgage XIV under R. S. 0. chap. 119, s. 6, (ante p. 160). Ontario, Oounty of ^ I, E. F., of the_ . }-the County of _of_ -in TO WIT : j make oath, and say : (1) The agreement set forth in the foregoing Bill of Sale by way of mortgage was entered into, and the said mortgage was taken by me for and on behalf of C. D., the said mortgagee therein named, and I am the duly authorized agent in writinr/ of the said C. D. to make such agreement and to take such mortgage and I am aware of all the circumstances in connection therewith. (2) The paper writing attached to said mortgage marked "B" 13 a true copy of my authority to make such agreement and to take such said mortgage. (3) That such mortgage truly sets forth the agreement entered into between C. D., the mortgagee therein named, and the said mortgagor therein named, and truly states the extent of the liability intended to be created by .such agreement and covered by such mortgage. That the foregoing mortgage is executed in good faith and for tlie express purpo.se of securing the said mortgagee in the repayment of his advances which he has agreed to make as in said mortgage set out, and not for the purpose of securing the goods and chattels mentioned in the schedule attached hereto marked A. against the creditors of the said A. B. nor to prevent such creditors from recovering any claim which they may have against the said mortgagor A. B, Sworn before me, at the s of , in the County^ of ■-_ — this day C' of___ , A. D. 18 . ; E. F. A C());n»/.s'.si/t>'i(?/', tfr. APPENDIX OF FOBMS. XX. 287 t'orm of Renewal under Revised Sfat n .i , , « Statement B. The interest of CD. of the m the County of _____jr~ " therein named, and dated fte ^^ ' f" ""^'gW" one thousand eight h„„dred aiZ! iffrT; dollars payable with interest at the rate of 7 The amounl 11 2 « 7^''^^/"^'' ^^^" "^^^^'^^^^ ^y me. is the sum of "'''^ ^'^^'"^ ^^^^ P^^^^^P^I -"d interest particulars- O^e^'e sefnn, /A ^*'"^'"« ^.^^^^'ding to the following interest, ands^o^"^ ""'? ' ^^ ^"'^•^'^'- ^''"^^^^^ «'^^ ""^"'^ *^^ i^aZ/»ieui;. m«cZ6 0^ a,,o«m^ thereof). CD. XXI. above statement (Form XX). ^ ^ ' «ocom;x.n ./ fAe County of )_ I, C. D., of the of TO WIT: P^ ^'^'^ County of . ^ _ _'^" -^ make oath, and say : of which thetr^'f"" """'"'^'^' '" *'- Chattel Mort.a.c wh l_Cash received .....!.r. .,„„ computed as follows : " — - — dollars, (Here give the computation ii , dated the ween A. B., of lerk of the XXVI. reneuial utukr 43 Vkt. chap. U. Countj^of ) I, c. D., of the _ „ of foregoing (orann™STt:°":^"^' "-Wmentio^dL -mod if L c;ritort^n:r„x it ™"«'«" Sworn before me at the. n ^ in the County / of.^ of.__ -this. .18 -day r CD. -4 Commissioner, icharge of ChaUd Mortgage. County of TO WIT : of - j I. ^. F., of the_____ jjf ~~ ~ .in the County -' , make oath and say • ^^2. Thattho»ttidc<,rtili«lo„a,,oexoc„todallhe _ . 1^ the County of ^ 3. That I know tho .said party. 4. That I am a sub.scribing witnoas to the said certifica<.. Sworn before me at the . -— — , in the County ofZl *^" ^r-T-- day , our Lord 18lT~~ "" ^"^' '^ ' > E. F. A Commissioner, d-c. '} XXXI. I, L. M. of the the County of do hereby certify that A. B. of the ::m of S98 APPENDIX TO F0RM8. -in the County of . , do certify tnat ha>j .satisfied all money due on, or togi-ow due on a certain'Chattel Mortgage made by him, the said A. B., to one • •' °^ wliieh mortgage bears , A.D., 188— F date the -of- and was registered m the office of the Clerk of the Coujity Court of the County of on the day of A.D., 188— as No and which said mortgage was by assign- ment thereof, bearing date the day of A.D., 188—, duly assigned by the said E. F. to me, (if the as- signment has been registered then add) and which saiil assign- ment was duly registered in the office of the Clerk of the slid County Court on the —day of A.D 188— as No ) That such said mortgage has not been assigned by me, and that I am the person entitled by law to receive the money ; and that such mortgage is therefore discharged Witness my hand this. A.D., 188—. -day of. Witness Residence. -Occupation. L. M. XXXII. Form of a Notice to a Mortgagor by an Assignee of a Moi-t- gage, of the latter having become the Purchaser of tJie Mort- gage. To Mr. Take notice that I have this day become the purchaser and assignee for value of that certain Chattel Mortgage made and APPENDIX OF FORMS. executed by you to 29& -in the County of_ -of the. of_ Whereby you secured to the said on the goods and chattels therein mentioned the TuT^f which 7aidn;^rtgaJwlTl^^f^ '%''"■" "' ''''' '"^^ Statute in that bS on th"^- '' "' "g^ "f""" ^' '^^ C^^llnCcZVoT ^" ''' ««^-«^*^«C'f of theCo^ on account of said mortj^age are hereafter to be paid by vou to 2 - such purchaser and assignee, and to no one else And ? am the person with whom all further dealings of any nature whatsoever are to be had of and concerning tfe saidToCge Dated at A.D., 188—. Witness —this. — day of. } C. D. indexec red to i AccEPl eff: Admini Affida whi the Afpidai muf may may whai does nor i absej test ( requi undei "est« I niay b by bai that " what i Affidavit must b aufiiciei should what ai INDEX. Acceptance : effect of, 1. who may administer, 231, 238 mMt oorrMUy .tale comid.r.lion, 23 s "fi'rr^iirsrr^rir' "=• «• - does not reauirfi tnh^,^ j »««"'', ioo. »,««.» .,, ul '""'" "'f'W could l„„i,.j, ,^ ■'•".f L""', "r"""""' " «"' '■« ^ae, 142-144 estate and effects " instHaH r.f " i '"'''**• 145, 158. ^"''^^ ""'^ '=^>''**«'« " sufficient, 144, thlf <iMerf. who authorized to administer, 132, 133. jurat must be signed by the commissioner, 133. unnecessary to conform to Rujes of Court, 133. must show when copy of mortgage filed that it is a true copy, 134. need not be made by subscribing witness, 155. AFTEB-ACcyJlBED PROPERTY : not included in general assignment of all a man's goods in a particular place, 35. will not pass unless intention clear even if the instrument gives power of seizing all goods, &c., 36. power to seize will not be construed as equitable assignment of, 36. mere license to take possession of may be revoked 36. grant of wUl not avail at law without novm actus inte'venknn, 37 45 but is good in equity, 31, 45, 46, 112, 113. ' but by recent legislation, is good both at law and in equity 37 113 words capable of passing, 38. > > • wowM actus depends upon nature Of transaction 39. grantee taking possession is sufficient, 40, 110, 111. will not pass by a sale purporting to convey it, 109. an agreement to sell it, is valid, 110. Agent : signature of under Statute of Frauds, 1. person held to be agent of owner of goods where by agreement with owner he fraudulently mortgaged the goods, 86. may make affidavit of botia fdes, 135. what he should state in it, 135. copy of his authority must be filed with affidavit, 135, 165. his authority does not require to be under seal, 136. ' and will be revoked by principal's death, unless it provides other- wise, 136. of mortgagee, but not of bargainee, must be aware of the circum- stances, 155. who makes affidavit under sec. 6 must have made the agreement 107 may effect renewal, 197. o , . . the nature of his authority, 197. his authority may be a general one, 241. Alienation : a common law right annexed to property of every man in good, and Assignee : of mortgage has same rights as mortgagee, 94. INDEX. eemont with of mortgage must renew the mortgage 187 of mortgage, rights of, 208-210 iH insolvency. (^e« Insolvent Act ) Assignment : "g,.ta.i„„° r^Ji :»X''^,'<> -«", 05, 199, 208. not required by the Act, 132 Bank : may take a mortgage -JinnnoT Bargain : ^'"""^ security, 105. in writing ,„derS..,.. of Frauds,! must contain names of both parties 2 but signature of party to be charged onlv 2 pnce should be stated, 2. ''*'^^'* °«'y, 2. Bills of Sale : must be in \vriting 1 intend., to seouilus art^nr r ^'-^ '^ '"^^^^ '• when of such nature thafaSft " ' 1°^' ^'^^ ^•=*' l^^. made are not within the Act atdno't.,^^ '''' ^'' ''^^-^ be 103. *'*"''"°*^°''Jf°rwantofregistration ' " tS."^- "^ .^^^-« -o^« to a purchaser are not withi. must show full consideration, 156 Blind Pehson : Bona Fides : to be considered, is that of f J, >nsufl5cient, 161. moved, 156.' *'* ''^ *^ ^^^^ ^-^ whom the consideration Change of PossEssiojr ■ wfcat constitutes depends .pon nat.re and position of " position of property, 117. 303 im 304 INDEX. Change c Possession— (7o?i(mM«(i. what sufficient to constitute in different cases, 117-126. a question for the jury, 123. Chattels : transferred by bill of sale, 1. by contract of sale, 1. defined, 4. movable and immovable, 4. real and p rsonal, 4. real are not the subject of chattel mortgage, 4. personal divided into two classes, 4. whicli pass from hand to hand only within the Act, 4-5. indivisible, 33. strictly there is no estate in them, 33. comprehend all descriptions of property not real, 106. Chattel Mortqaoe : derivation of, 3, , takes effect from time of execution, 73. definition of, 101. maybe verbal as between parties to it, 131. meaning of words " goods and chattels" 105 (c). Chattel Mortgage Act : Sec. I. 2, 5, 6, 7, 19, 37, 47, 83, 10O-137. II. 137-145. III. 146, 147. ' IV. 78, 147-151. V. 151-159, VI. 20 28, 33, 160-171. VII. 171-177. VIII. 177-179. IX. 179-184. X. 95; 184-199. XI. 95, 199-200. XII. 201, 202. XIII. 202-206. '■ XIV. 206, 207. XV. 207. XVI. 207-210. XVII. 211-215. X VIII. 21", 216. XIX. 217. XX. 218. Cj Ch< Com ' 1 r COMP h it . hx es CoMPU fra the isf "n as t C0NSEN1 to B but ^ may CONSIDEJ valua must volun bill of 6. -5. JNDEX. XXII. 2x9. XXIII. 40, 219-231 XXIV. 231-235. XX v. 235, 236. Chattela not in essee • no nght ot rede„pii„„ .,_ i;"^' »•" »"""' «■• Jol, 31. Company ; has power to take u mortgage, 104. Co«™,„» „, J J''" ""■'"•'" ""^ «i™ . -on,.,., 105. " moMh." in ninth ^ "*•'•"'• '*■ sufficient, 61, 96, 97, ""^ '««r'gagee'« vorbal conseat k' may be constructive by estoppel, CI 96 9- Consideration • ' ' ^'- 305 #' ■ I' li ;to 306 INDEX. ComiDERATios— Continued. of natural love and aflection will not biiprort bill of sale against creditors, 21. may be shown to be diflferent from that stated in the mortgage, 21. but it must be correctly stated in the affidavit of bona fides, 23. of marriage good, 23, 157. the highest recognized, 23, 157. in general moves from mortgagee to mortgagor, 28. but may move from third party to mortgagor, 28. when of such a nature that affidavit of botia fi,des cannot be taken, mortgage still valid, because not within the Act, 28. of contingent indebtedness or liability go> a, 28. of forbearance of legal proceedings good, 29. undertaking to accept payment at future time, and give time in mean- while good, 20. abandoning suit instituted to try doubtful question good, 20, 30. but bad where mortgagee had no cause of action, 29, 30. forbearance to sue no consideration where clearly no cause of action, release from illegal arrest no consideration, 29. compromise and settlement of a claim no consideration, unless a debt admitted to be due, 30. of forbearance sometimes fails as against creditors, 30, 31. of debt barred by Statute of Limitations good, 32. in Connecticut held to be good even against creditors, 32. of future advances, endorsements, or any other liabilities incurred by mortgagee for mortgagor good, 32. of fxdure endorsements or liabilities good, 32. but not within the Act, 33, 104. necessary in operative part of instrument, 33. the essence of a mortgage, 101. what sufficient and insufficient, 142-144. in bill of sale must be fully shown, 157. of natural love arid affection not stifficient, 157. CONTINOEXT /nDEHTEDNESS OR LlAUILITV : a good consideration under Sec. C, 28. Contract : of sale. Statutes relating to, 1. Statute of Frauds and Lord Tenterden's Act, 1. affect property over £10 value, 1. requisites to make valid, 1. Conveyances : made to defraud creditors void asaganist them, 10. INDEX. 307 I of sale against e time in mean- CoxTr.YANc'ES-Oonfin,«erf. Mortgage Act, n. "'^'*''' "'^"« *he less so under the Chattel what are within tlie Act, 102 ConroRATio.v. (&e Company.) ' Ck EDITORS : ClUMIN-AL PkocEEDINgs • Crops : °' ^""S.;ri:":^ ^r--^' -^--^^^ - so.„ >t ti.e of . and whether existing or no't exiatin. iflo distinction between fmcf,,. ;, ; 7 °,' t-^e latter are not s^i ";/ ^ [.^^ ^"f^''"^'"* "«'«-^-> H*- unless severance imm«r];.,f , •"'"'''S''ge, 114. Damages : """mediately contemplated, 115. D™r °' '" ""''" "^ '"-'^"^^'- agai„st>ortgagee, 120. against creditor!, "cj;^ " '"*"*^^" *'^^ P""-' »^ ^ but not as instrument takes effect from, 97-98 to be completed acceptance by transfers. • Description : particular may have effort nf ..„.* • i- assignment of'a.l Illt':^/;! irET'''''' ^°^'^' ''^■ ot include those subseauently tS:;! t:' u^ 5f ""•'''" ^'^' -'" 308 INDEX. T>EscuiFTio}f— Continued. must be sufficient to identify chattel, 40, 41-45, 219. as between the parties not required to be so specific 40 219. of after-acquired property, 45, > > • locality, and possession generally described 49 '"*S°^' ''"''"°*"""" ''fter mortgagee has taken possession, not necessary to be such as to enable a person to identify goods by merely casting his eye on them, 221. what is or is not sufficient, 221-231. epitome of decisions respecting, 229,330. Discharge : how it may be effected, 202-207. form of, 203. Distress : for rent supersedes rights of mortgagee except as to such things as are exempt from seizure for rent, 62. for taxes, can be made of any goods in the possession of the person who ought to pay, 64t Division Court: executions only bind from seizure, 12. Doubtful Instrument : generally treated as a mortgage, 8. Endorsements : good consideration under Sec, G of Act, 32. liability not to extend beyond a year, 32, 1G5. affidavits must be strictly in accordance with Act 32 : even technical defect fatal, 32. to be given a good consideration, 32, 1C4 ; but not within the Act 33 104. ' * must be past or concurrent, not future, 164. must be made on behalf of the mortgagor, 164. necessary that mortgage should show that liability not to extend beyond one year, 165. mortgage to secure cannot be refiled so as to keep eJive security for renewals not maturing within a year, 166. mortgage to secure endorsements of notes not properly stamped will not be supported, 1G6. Equity op Redemption : incident to every mortgage, 7. cannot be barred at out-set of transaction, 7, 71. INDEX. 309 ,219. :en possession, itify goods by things as are 3f the person 'en technical the Act, 33, t to extend security for tamped will ^ziVr""""'-'""--"- «..yb« .old under .„c,„i„„, 74 iisrorpEL • purchaser, 05. ^ '"'' ^^ "^"^^o^g^-^' cannot sot up title against EviDENCif • EXECUTIOJT : by blind or illiterate person invalid if ;„.. request, 18. *"'* '^ instrument not read over on consists of "sitrnm^" « 1. place of lie. ^ ^' '"^''"S- ' «nd " delivery," 98. presumed to have taken place on date ISO mortgage takes effect from time of 146 Executions : have priority over chattfil n . ^ °"'y' ^^^ . Sec (( FRAUDt voi( Fraudc moi INDEX. g issue, 11. loriff, 11, Drtgage of the ct, 09. le instalments 34. cident to his Forms— Cwi/(ui(«/. rene^«,al affidavit for common niortgage, 287. „ " ^y «" agent, 288. " stLT'"! I"" '""''*^"^" *" '•'""^^ ^"*'"° "'l^-'nces, 289 8 a e„.o„t for nu.rtgage to secure endorsements 291 „ "tatement under 43 Vic. c. 16, 292 ' affidavit >' « „ g^g authority to agent to renew, 294 " '< (( ,* J. , , ""'er 43 Vic. 0. 15 29S discharge of chattel mortgage not assigned, 290 affidavit of execution of di«charg,,, 29? discharge of chattel nu.rtgage by au assignee, 297 notice of assignment of mortgage, 298. Fraud : .... « .„rt^^ „.„. ,, „„, ^ ^„^. ,^^ ^^ ^^^^^ ^^^,^^ ^^^^^ valuable consideration then of no avail 1 1 mfaiit^of^ sufficient discretion to commit' a fraud will be afleoted presumed where consideration voluntary 2'> may be rebutted or established by extrinsic "eviden.p 99 suspected where gift general, 2G, J43 ' ^• or^whe^re consideration wholly disproportioned to ^alue of absence of, necessary to validity of all conveyances 49 absence of change of possession a badge of 49 question of is one of fact for deci.sion of ju'rv 51 "°^Z;™1r'^'^ ''-''-' ^-^^»- AoL' from retention of pos- m concealing incumbrance or falsifying pedigree 82 Fkauds Statdte of : ' ' Sec. 17. 1. " 16. 11,72. Fraudulent Convey a n.-e • void against both subsequent and existing creditors. 77 -tRAUDDiENT Preference • mortgage executed under procure not a fraudulent preference, 37. 311 II 312 INDEX. FuTCRB Advances ; jjood consideration under sec. 6 of Act, 32. muHt bo for purpoHo <.f -nabling borrowor to enter int., and carry on business, 32, Kil, Ui3. time for re-payment not longer than one year from making of aKruo- ment, 32. ^ even unintentional Jufoct will generally prove fatiil, 32. mortgage to secure must state the true consideration, 102. there is no necessity for its being under seal, 1C2. may be either in money or goods (?), 163. the agreement to make must be in writing, KiS. time for payment of, must be fully shown, 1(54. Garni.shee proceedings are creditor's proper remedy to recover balance in hands of mortgagee, 83. Goods : not 80 comprehensive a term as chattels, 10,5. limited to moveable personal property and to things tangible and visible, 106. Goods and Chattels ; how transferred, 1 contracts, relating to, 1. meaning of, 105. Illiterate person : instrument executed by invalid, if not read over on request, 18. Indebtedness : of mortgagor, formerly made mortgage void as against creditors, 86. quantmn of debt which may invalidate a mortgage varies, 86. insolvent circumstances wiU not^er se invalidate a mortgage, 86. is a circumstance raising a presimiption of fraud, 86. which may be rebutted in various ways, 87. Infant : conveyances by voidable, 17. cannot avoid a contract and at same time affirm it, 17. when chattel delivered, mortgage by, for balance of purchase inonev valid, 17, 18. ' if of sufficient discretion to commit a fraud will be atfected by it, 18. representing himself of age, and thus inducing a conveyance or mort- gage to be taken from him cannot repudiate it, 18. bill of sale or mortgage by, may be upheld when it is given in or to secure payment for necessaries, 18. I» 1 ( i e d ai Insur m m be eff coi th£ to and carry on aking of agruo- 2. 102. lance in hands } tangible and [uest, 18. ireditora, 86. )8, 86. ;gage, 86. rchaae money ed by it, 18. vnce or mort- iven in or to I.VDEX. 313 Inhoivknt Act • .uch . n„.rtg.8e co.„lil„l.. a„ „t „f l,a„k,„„to, 13 pnncii.los govorning such a transaction, 14 assignment of all debtor's elects s-.metin.es valid, i;. mortgage to secure pro-existing debt valid h,-rJ. .1 ^'"udji,. i„tentl..n that thereby bu^^U s v IH '"^r""° """^ the advance nu.st be a substantial one,T5 '" '"' "' ""' ^''• exception of part of property m««t be sub^tant . ;-, Te'sV'To.'' "'^''"'^ "' '""" ^'■''" •"^-'-" ^^ --y on the bu.i- asBignment n.ay be n.ade subsequent*.,, the advance, 10. but must be m pursuance of prior agreement, 10 au>iiin,e8 will not make assignment valid 17 assignee taking possession of mortgagor's coods n,.f „ C4^ 65, ^ o"' " goous not a wrong. Joer, mortgagor's remedy under 125th sec. of Insolvent Act 05 does not apply to a person not a cr.lUor of the insoTven «0 TS; '^'''-'- '' -- ^- ^-^^ -^"f^l Mm by does not take away right to foreclose, 08 09 discharge ,n insolvency releases insolvent from his covenant 00 81 assig^e .pr.ents creditors for purpose of avoidin/rr^^^^^^^^ Insurance : mortgagor and mortgagee have insurable interests 90 both may insure at same time, 90. effected by mortgagor in name of mortgagee not avoid«,l U, ■ ■ to mention amount of mortgage, 91 ^ °"""""" company cannot set up defence against mortirarrpfi ♦>.„* able to pay the debt, 91. mortgagee that mortgagor the insurance being the security, not the debt, 91. I I 314 INDEX. Insurance— Co?t ■ , sale at one time supposed to be the only remedy 9 is a creditor, 81 . '"'' mist 8a ' ''°''''"" ""''' ^' '''' "'''* *° ""' P'*^'^' ^^^'^^ ^ ^«^«- attempting to take possession will be restrained, 88 liable to an action by mortgagor, 88 after selling sufficient goods to satisfy debt must not sell remainder 88 doing so renders him liable to action of emainuor, 88. 88. trover for full value of ^oodi ^16 INDEX. MoETOAGEB— Oon^inuerf. and If he does not. and goods wilfully sacrificed, action for balance of debt may be successfully defended on that ground 89 nT^Srrrsa "'-''''' " '-'--' ^''- .ust give credit and if exchanged for land equity will require an account, 89. must strictly follow terms of mortgage, 89. otherwise will bo responsible for damages, 89. has insurable interest, 90. but may only insure to extent of his interest 90 and not affected by mortgagor remaining in possession, 90 cannot tack subsequent advances bv parol 90 cannot therefore reco..i on policy more than amount appearing on face of mortgage, 90. ^ but othermse if insurance effected for joint benefit of mortc^a-^or and mortgagee, 90. 91. "o^o"! dna if insurance effected by mortgagor in name of mortgagee omissjon to mention amount of mortgage does not render policy void 91 on payment of the debt his insurable interest terminates 91 insuring when mortgagor does not agree to insure may' recover full iZ"°91 '"'"'"'' ''"* ''""°* '''"■«' '"^'•*«^«°' "'*^^ P'^""- but otherwise if there is a covenant to insure, 91 when default in insuring renders amount due procuring insurance by mortgagee after default of mortgagor does not cure breach, 92 represenativeof,afterdefauh, is justified in detaininggoods mor gaged until mortgagor shows that debt satisfied, 92 representative of, in possession by reason of default may in action of trover or detinue by mortgagor set up the jus tertii, 93. bii otherwise wheremortgagorin possession and he takes thegoods 93 p"d 9r ' '""'" '"""'"^^ "^"" p^^* ^^'^ ^"'^1'- "t« may waive forfeitnro and slight acts suflicient, 94 may enforce his scu.rity by remedy under power of sale, 94 who has neglected statutory requirements can sustain his mortgage against purchaser in bad faith, 96. ° Mortgagor : '"'^ oHrTuTsT"^ ^"'"^'''*^ '"^^''* *' '^""^^"°" '"*^°"* ^''''^ ^""'y must usually have mortgagee's consent, 88 *''*18,^25.''"°" ^'^"' ""'"'^"^"" wrongfully taking possession. a sale, 89. ion for balance of nd, 89. must give credit ount, 89. )n, 00. nt iippoariug on if mortgagor and agee omissjon to icy void, 91. ites, 91. nay recover full gor with prem- ng insurance by re breach, 92. oods mortgaged lay in action of a, 93. 38 the goods, 93. iue instalments le, 94. I his mortgage it being guilty ng possession. INDEX. 3ir MoRTOAG.>R_Con"'"' Recitals : not -W^ where security given for pre-existing debt, but should necessary to validity of some instruments, 20 inserted to show the consideration 20 variance between consideration inserfn',1 Jr, k i r should be omitted, 51 its absence gives niort''a effect of variations in the copy /ilud 10'> ;^'lirm ^"' '^°^^"'« "''^ «^*«'^-«' '"tere^t should it cannot bo made by the mortgagor 103 no affidavit is neccfsary to verifylt, 193 ' ''^"S^SlllS;"^ ''''''- -t- -i"i— ts it is suffi- in ivhat office tlie copies are to bo filed, 195, 240 by whom the affidavit can be made, 190 1 9V 199 may be eiTected by agent, 197. ' ' ^' what the affidavit must vouch 197 it must aver that the statements ai^ "true " 198 form of statement, 240, 243. authority to agent may be general in form, 241 not necessary, to continue mort™,rees rif-hf r.f It- aei.ing before time for renewC iS '™* "'^'^^^"^ Rent : mortgaged goods liable for 02 Replevin : will probably li. against sheriil' seizing mortgagee's goods, 77 Kepkesentative • °' T:fr4;::"::;,r,:r::t:" 't-^ "^ °°"««^ .■ , . ° "^ '■'^o^^s that mortf'aw saticifir.il 00 bnf r,n+ if J ; ^ mortgagor, set upi«. terUL 93. Sale! '""' "' ""''''''"-'' '"^ P^^^'^^^^'^"' »3 of goods and chattels, how effected, 1. contracts, relating to, 1. statutes, governing, 1. 21 822 INDEX. Sales — Continued, advertised under power may be adjourned, 89. sale exists whonover absolute beneficial interest passes from seller to buyer, 152. what necessary to constitute valid sale, 152. Saw Loos : mortgage of covers lumber into which they are made, 221. Security : every transaction resolving itself into a security is a mortgage, 7. Sheriff : Bill of Sale by, not within the Act, 153. Statotes : 50 Edw. III. c. f) ; 110. 13 Eliz. c. 5 ; !), 22, 23, 25, 49, 71, 77, 79, 82, 85, 119, 172. 26 Eliz. c. 4 ; 8, 119, 172. ' 21 Ja. I. c. 19 ; 119. 29 Ch. II. c. 3 (Stat of Frauds), s. 4 : 114. 8. 16; 1,72. 8. 17; 1, 11, 114. 9 Geo. IV. c. 14 (Lord Tenterden's Act), s. 7 ; 1. 17 A 18 Vic. (Imp.) c. 36 ; 147, 150, 152. 29 Vic. (D.) c. 28, s. 20 ; 261. 34 Vic. (P.) c. 5, s. 41 ; 105. Insolvent Act of 1875, s. 3; 13. " " " s. 39 ; 151. " " " 8.125; 65. 40 Vic. (0.) 0. 7, Sched. A. (134), 134, 135, 196. . 40 Vic. (O.) 0. 8, s. 29, 184. 41 Vic. (0.) c. 8, 8. 12, 116. 236. 41 & 42 Vic. (Imp.) c. 31, 147. 43 Vic. (0.) c. 15, 239, 244. E. S. 0. c. 47, 8. 54, 113. c. 53. 8. 2, 77. c. G6, s. 27, 74, 248. c. 66, s. 28, 248, 249. c. 66, 8. 29, 249 c, 95, 8. 13, 71, 85, 1 19, 244. c. 95, as. 14 & 15, 136 c. 98, 8, 5, 112. 0. 98, 8. 18, 82, 250. 0.118,8.2,71,87,119,172,247. St Su Tb] Tei Tri Twi Ves Von Von Wai\ c h h (( K ((