property was not void as against the trustee for the creditor under the 13th Eliz., and although the doctrine was referred to under which it has been held that when a voluntary settlement is once avoided under that statute subsequent creditors are let in, together with those creditors against whom the settlement was fraudulent, it was held that a creditor who merely claimed as this creditor did as mortgagee could not be heard to impeach it; as to him, the settlement was good. If the creditor had obtained a judgment and execution he might have obtained possession of the goods, but the creditor claimed under the assignment to the trustee only, and under that he could not acquire any right to the goods.

In other words the settlement there, as the mortgage here, was good against the assignee although that assignee represented a creditor who might in a proper proceeding have impeached the settlement.

I have formed no opinion as to whether the mortgage to McCall was or was not liable to be impeached as obnoxious to the provisions of the statute of Elizabeth or our own statute, it not being necessary to do so in my view of the case. I will merely say that I was not so clearly convinced of its invalidity upon the argument as the learned Chief Justice appears to be after considering it.

The payment into court does not confer any jurisdiction to deal with it as a fund under its control. The money so paid in simply represents the goods, and must be dealt with precisely in the same way as if the goods were still in specie; if they could not have been seized in execution, the money cannot be reached.

At most the court could only make a declaration of the invalidity of the deed as fraudulent, but for reasons I have given I think such a declaration should not under the circumstances be made, but the bill should be dismissed and this appeal allowed, with costs.

PATTERSON, J. A.-The prayer of the plaintiffs is that a chattel mortgage made by Cox to the defendants D.

McCall & Co. on 22nd March, 1884, may be declared to be fraudulent, null and void as against the plaintiffs and the other creditors of Cox, on whose behalf they sue, and may be set aside and cancelled, and that it may be declared that D. McCall & Co. are not entitled to the goods and chattels covered by that mortgage or to the proceeds thereof.

The formal judgment as drawn up grants all that is asked in the claim, declaring the mortgage fraudulent and void as against the plaintiffs and such other of the creditors of Cox as may contribute to the expenses of this action; and it goes on to order something further.

The facts were stated, and either proved or admitted, that the plaintiffs were simple contract creditors only, and their debts were not due when the action was begun, and that on the 1st of May, 1884, which was before action, Cox made a general assignment to the defendant Ferguson for the benefit of his creditors.

The further order contained in the judgment is as follows:

"3. And it appearing that the defendants D. McCall & Co., have, under the chattel mortgage aforesaid, sold the goods and chattels covered thereby, and that, under the terms of an order made in this action and dated the sixteenth day of May, 1884, they have paid into court to the credit of this cause the amount realized under the said sale, to wit, the sum of $5,000; this court doth order and adjudge that the said sum of $5,000, together with interest accrued thereon, be forthwith paid out of court to the defendant Ferguson, to be by him forthwith distributed among the creditors of the defendant Cox, under the terms of the deed of assignment from the defendant Cox to the said defendant Ferguson, having regard to the provision hereinafter contained as to the costs of these proceedings."

I am not sure that I understand the reason for making this order to place the money in the hands of Ferguson. I find nothing in the judgment delivered by the learned judge to explain his view on the point, or even to shew that it was before his mind. He repeats at the end of his judgment the prayer for relief contained in the statement of claim, as I have already stated it, and says that to that

relief he thinks the plaintiffs are entitled, but says nothing like what we find in the further order for payment of the money to Ferguson.

The defendants D. McCall & Co. appeal. Their main contest is upon the validity of their mortgage. If they cannot hold it, it is for their interest that a distribution in which they will share shall be made of the fund. The Bank of Upper Canada v. Thomas, 2 E. & A. 502, would be, I think, an authority for their sharing with the other creditors, notwithstanding their ineffectual attempt to appropriate the whole fund to themselves. They do not object to this part of the judgment. On the contrary, they base an argument, which I shall notice by and by, on the assumed right of the assignee to the fund, or the goods which it represents, in the event of the mortgage being set aside.

The plaintiffs in their turn insist on the propriety of the direction which they have had inserted in their decree, that the fund shall be handed over to Ferguson. They do this in their reason No. 3 against the appeal, putting the right on two grounds, to explain which I shall read the reason from the printed appeal book; one ground treating Ferguson, if I correctly apprehend it, as a sort of officer of the court, and the other as a legal owner of the goods that produced the fund in court :

"3. The fund, the proceeds of the sale under the impeached mortgage had been paid into court before judgment and was at the date of the judgment made subject to the order of the court. The direction that the fund should be paid out to the defendant Ferguson for distribution among the creditors was merely a mode adopted for the purpose of carrying into effect the judgment of the court-whether the fund be distributed by Ferguson the assignee, or by the master or other officer of the court, is an immaterial matter. The court having complete control of the fund the proceeds of the property embraced in the impeached chattel mortgage was empowered to deal therewith and was bound to direct it to be paid out to the person found entitled thereto."

It may, notwithstanding this consensus among the

parties to the record, be necessary, in dealing with the questions we have to discuss, to form our own opinion of this mode of disposing of the fund. In the meantime I merely note the attitude of the parties with regard to it.

On the main contest, I do not know that I can usefully add any remarks to those made by the learned judge in the court below, in which he explained the grounds on which he held that the mortgage offended against both branches of R. S. O. ch. 118, sec. 2, as being made with intent to defeat or delay the creditors of Cox other than the mortgagees, and with intent to give the mortgagees a preference over the other creditors, though I fancy that as the last mentioned intent covers the whole ground, and does not involve any question of the effect of the mortgage being for good consideration, it is not necessary to rely on the other.

There has not been shewn to us any sufficient reason for questioning the finding of the learned judge on that part of the case. I should from the evidence come to the same

conclusion.

But objections are raised to the right of the plaintiffs to maintain the action.

One objection is that the plaintiffs, if entitled, while only simple contract creditors, to sue, can only sue as representing all the creditors, while they profess to sue only for all the creditors except the defendants.

This objection strikes me as originating in some confusion of ideas, which may very naturally arise from the recognition of the right of a simple contract creditor of a living debtor to maintain an action of this kind, when he is not. proceeding to judgment for his debt, and when by reason of the debt not being payable at the time of the commencement of the action, he was not at that time in a position to bring an action against his debtor.

If the action is to be regarded as for the purpose of setting aside the mortgage so that it shall not stand in the way of the realisation of their debts by the creditors, the mortgagees would be out of place as plaintiffs. The mortgage does not stand in their way.

D. McCall & Co. who make the objection are before the court; but without placing much stress on that circumstance, it seems to me impossible that a demurrer could have been sustained upon this objection. See Fraser v. Cooper, 21 Ch. D. 718.

The judgment as entered places D. McCall & Co. on precisely the same footing as the other creditors.

This technical question of parties is, of course, a distinct matter from the propriety of the judgment in other respects, which has to be considered in its turn.

A second objection is put in the reasons for the appeal in these words:

"2. But further, the plaintiffs being merely simple contract creditors, are not entitled to maintain this action, because they do not show that they have any debt due, or any claim upon which they are proceeding to judgment against Cox, and that the mortgage in question will hinder or delay them from realizing by execution on such judgment. On the contrary, the statement of claim (paragraphs 13 and 17, p. 5, Bk.) alleges, that prior to the commencement of the action, Cox assigned his whole estate and effects to the defendant Ferguson, who claims the goods; and whose position they do not seek to disturb, and therefore, any execution which they might obtain against Cox would be ineffectual against these goods."

We have here two positions taken. The first is that a simple contract creditor whose debt may not be due, and who cannot assert that he either has recovered judgment, or is proceeding to do so, cannot sustain an action to set aside a conveyance as being void against creditors under 13 Eliz. ch. 5, or R. S. O. ch. 118.

The objection, to this extent, is answered by the decision in Longeway v. Mitchell, 17 Gr. 190, which is the leading case in our courts on this phase of the subject.

I had occasion, in Parkes v. St. George, 10 A. R. 496, to make some remarks respecting that case. I shall now merely add that I find that I was correct in understanding that the case had always been followed, and that it must. be taken to lay down the law of our courts.

The principle is the same on which I founded, to a con