sion of these goods on his mortgage, as it would seem that he did, and while in his hands the sheriff seized them on an execution at the present plaintiffs' suit; he could only defend himself on the mortgage, and if that were declared fraudulent the goods would have been effectually sold as against him. I do not see how he could raise any question as to any right or title in Ferguson.

The goods have been converted into money by the sale under McCall's mortgage, the latter agreeing to pay the proceeds into court, according to the order made on motion for injunction to restrain them from selling.

I think the fund in court must be dealt with on the same principle as the goods themselves, and be applied substantially in the same manner as the goods would have been by sale on legal execution; that the creditors have a right to apply to the court as in the case of equitable execution against this fund, irrespective of any claims of Ferguson thereto, until the judgment creditors were satisfied.

In the shape in which the property mortgaged to McCall is I do not see how it can be reached except by the aid of the court. No creditor who had no specific lien would be permitted by the court to receive benefit from this asset except on equal terms with the rest of the class.

I think the court can deal with this matter and allow each creditor to prove his claim in the Master's office. In the present state of the law, if not in the past, I think there must be this power, and the parties should not be left to prove their claims in other actions. If at any time before an execution has been lodged McCall had sold and converted into money the mortgaged property I do not see how the execution creditor could get anything on his fi. fa., the money not being "ear marked," so that the sheriff could reach it. Except through the aid of equity, I hardly see what could be done.

I have come to the conclusion that the court can deal with the case substantially as my brother Ferguson has decided. I do not accede to the argument that such a

remedy and such a disposition of the estate among creditors is confined to an administration in the case of a deceased debtor.

I would gather from such cases as Taylor v. Jones, 2 Atk. 600; Goldsmith v. Russell, 5 DeG. M. & G. 547, although there is no discussion on the point, that such a proceeding has not been wholly unknown.

I think we should vary the decree as to paying out the money in court to Ferguson the assignee to distribute among the creditors. Except by consent of parties I think it is the court that should administer the fund.

In consequence of difference of opinion in this Court there can be no decision if we all adhere to our views without compromise.

I therefore concur in an order dismissing the appeal, with costs, but confining its operation to declaring the mortgage void against creditors, with costs, against the defendants according to the memorandum given to our registrar.

BURTON, J.A.-The plaintiffs who were simple contract creditors of one Cox, seek in this action a declaration that a chattel mortgage given by Cox to the defendant McCall may be declared to be fraudulent and void as against themselves and the other creditors of Cox.

This, as I understand the authorities, is the utmost extent to which the court goes when a bill of this nature is filed by a creditor who has not acquired a lien on the property, and the plaintiffs, as I think very properly, confined their prayer to that relief.

The plaintiffs' contention, as I gather it from the reasons against the appeal, is that after such a declaration the debtor is disabled from exercising any control over or making any disposition of the property, a position which I take it is clearly untenable.

In the cases which have been decided on the authority of Reese River Mining Co. v. Attwell, L. R. 7 Eq. 347, the rule laid down by Lord Romilly has been strictly adhered

to, that whilst the court will make the declaration prayed for it goes no further, but leaves such of the creditors as desire to do so to take such independent proceeding as they may be advised if they desire to have execution of the property comprised in the impeached instrument.

The creditors, or some of them, may have no reason to resort to that property for the satisfaction of their claims, and in that case the declaration amounts to nothing more than that contained in the statute, although the plaintiff may if he chooses, and in order to make the decree effectual, obtain an injunction to prevent the grantee in the fraudulent instrument from parting with his security or selling the goods comprised in it.

But until a creditor obtains a lien either by execution or in some other way, the declaration as regards the debtor is a very barren proceeding.

It is shewn in this case, and is admitted, that before any execution or other process did issue, the debtor conveyed his interest in the property to the defendant Ferguson for the benefit of the creditors who have assented to and adopted the assignment.

Under these circumstances it appears to me that any judgment which this court could give would be necessarily fruitless. I know of no way in which a lien could be obtained upon this property by execution or other process, and though that may disclose an undesirable state of things, that is a question with which we have no concern but is a question for the legislature, and the legislature in England, not long ago, and the legislature here have, since this action was brought, interfered by placing assignees under a deed for the benefit of creditors in the same position as assignees in insolvency.

It is quite settled that a judgment creditor can take no interest whatever either legal or equitable beyond what he acquires from the debtor, and when he proceeds by execution to enforce its recovery he takes the interest of the debtor precisely in the plight in which he finds it.

If when that execution was placed in the sheriff's hands

the only thing in his way had been the mortgage that had been declared void, he would have been in a position to sell the entire interest in the goods; but at that time the debtor had ceased to have any interest by reason of an assignment which was valid against all parties. There was nothing, therefore, upon which an execution could. attach.

We are all familiar with cases in which where the debtor is beneficially entitled to property, the legal title to which is in another, a court of equity interfered by granting equitable execution, but that is very different from this case. The debtor here had no interest in the goods beyond that which he assigned to Ferguson; as between him and McCall there is a mortgage for a good consideration, and free from any taint except that it is liable to be impeached by any creditor who is in a position to lay hands upon it under legal process.

The combined effect of the mortgage which is good against him and the assignment which is good against every one is to prevent any one seizing, as there is no interest left in the debtor to seize.

I am not sure that any great wrong is done to any one by this accident. It is quite possible that some creditor other than the plaintiffs, whose debt did not mature for some months, might have obtained execution first and swept off everything; it would have been a mere transfer of the preference perhaps to a less meritorious claimant. It is one of the results of endeavoring in a country which claims to be commercial to carry on large business transactions without a bankruptcy law.

The legislation which declares such instruments as that sought to be impeached void as against creditors, if made with intent to give a preference, has received an interpretation, which I think still is correct, in Parkes v. St. George, that they are not absolutely void but void only as to those parties who are in a position to assert their rights by execution or other process.

77-VOL. XII A.R.

Take this case, a declaration is now made that this mortgage is void as against creditors.

In the meantime some other property of the debtor is discovered, which is ample to satisfy the claims of all creditors. Is this mortgagee to be tied up and prevented from realising his security under such circumstances? Certainly not. It is clear therefore that although voidable at the instance of a creditor who can lay hands upon it, it is not absolutely void.

If instead of an assignment for the benefit of creditors it had been a sale of the equity of redemption, how could a creditor have obtained a lien ?

These are questions with which we have nothing really to do in this case except in this view. I wish to shew that there is really no possibility of reaching this supposed interest of the debtor, and if so, any decree we may make must be fruitless, and it is and ought to be beneath the dignity of this court to make a decree which it is powerless to enforce, and which must necessarily be futile.

For these reasons, I am of opinion we ought to allow the appeal and dismiss the plaintiffs' bill, with costs.

I have not noticed that part of the decree which provides for the money being paid to the assignee. I should suppose that the decree was inadvertently so drawn, as I find no reference to such a decree in the learned judge's reasons, and it appears to me to be entirely opposed to principle and authority.

A case referred to by the Chief Justice in 11 Hare is authority, if any were wanted, against such a position.

There a debtor made a voluntary assignment of both real and personal estate which would have been void under the 13th Eliz. as against creditors. He subsequently assigned and conveyed the same property to a mortgagee in trust for a subsequent creditor. It was held as to the real estate that the voluntary settlement was void as against the trustee under the 27th Eliz., but as that statute does not apply to personal property, the question arose whether the assignment of the personal