of the mortgagee may be dispensed with, and his accepted instead. In fact, upon reading the mortgage and the affidavits and papers filed therewith, all the facts that really give validity to the instrument must appear, and a statement of this fact cannot be omitted.

The statement made by the agent on the renewal of the mortgage was clearly not sufficient, for it may well be true and still he may not have known of the facts and circumstances under which the chattel mortgage was given.

The mortgage, as it is shewn, had expired, and no registration thereof existed when the sheriff seized under the execution of the respondent.

The title of the appellant depends entirely on the conveyance by way of mortgage from Brown, the mortgagor, to the bank; therefore, as Brown always remained in possession, as soon as the title under the mortgage ceased to be a registered title by reason of non-renewal, the property embraced therein became liable to be seized under the execution against Brown.

The appellant to preserve and retain his priority as against the respondent, an execution creditor of Brown, should at all events have kept the mortgage duly renewed, or have registered a bill of sale from the mortgagees to himself, or have taken possession of the property so purchased by him. Not having done so, it was liable to be seized under the execution, which was in force before the appellant became a purchaser, and up to the time of such

seizure remained in force.

The cases relied on appear in the report of the case in 32 C. P. and in the judgment.

March 24th, 1882. BURTON, J. A.-Two questions were raised upon this appeal:

First, as to the sufficiency of the affidavit of bona fides required by the statute. And, secondly, as to the necessity of a change of possession or re-filing of the mortgage, where a sale had been made by the mortgagee after default to a bona fide purchaser, who had allowed the mortgagor to remain in possession under a lease from him.

The first objection is based on the absence of any statement in the affidavit of the agent, that he is aware of all the circumstances connected with the mortgage.

It is true that the section of the Act which authorizes an agent to make the affidavit in place of the mortgagee adds the words "If such agent is aware of the circumstances -which were perhaps intended to shew that the affidavit must be made by some one having the actual knowledge, and not by one swearing according to his belief or on the information of others; but it appears to me that we should be adding to the requirements of this Act of Parliament were we to hold it necessary that the agent should swear to that in addition to what the second section in terms requires.

That section provides that whether the affidavit is made by the mortgagee or his agent he shall swear to certain facts, but there is nothing in terms requiring that he should state that he is acquainted with the circumstances, and this is not surprizing as without such acquaintance he could not truthfully make the affidavit.

If these words had been carried into the section which prescribes what the affidavit shall state, it would of course be no answer to an objection to an affidavit omitting them to say that they are immaterial, as the agent could not depose to these facts if he had not the knowledge of all the circumstances. The Legislature having declared that the affidavit should be in that form it would have to be strictly followed; it has not said so, but has declared that the affidavit may be made either by the mortgagee or the agent, and in each case the facts required to be sworn to are the same.

I am at a loss to see why the Courts should require more than the Legislature has thought it necessary to exact. If the agent has sworn to the truth he must have been acquainted with all the circumstances necessary to be sworn to; if he was not so acquainted, I cannot see how the purposes of the Act would be better secured by requir ing him to swear that he was. It appears to me to be much

safer always to adhere to the words of an Act of Parliament, and not to speculate whether something not specially mentioned would better secure the object which the legislature may be supposed to have in view.

I notice that the learned Chief Justice of the Common Pleas in his judgment says that properly the affidavit should disclose the further fact that the agent is authorized in writing, adding, however, that that might not be necessary if the authority is verified by the oath of the attesting witness. But here again I submit with great deference that the learned Judge is going beyond the requirements of the Act, which simply renders it incumbent upon the agent to file not the authority, but a copy of it, with the mortgage, and does not require any proof of its execution.

I do not enter upon the question of whether it does or does not appear aliunde upon the papers that the agent had such knowledge, because it appears to me to be clear that upon the proper construction of this Act of Parliament nothing more is required than that the mortgage should be accompanied with an affidavit swearing to the facts required in the second section by the mortgagee or his agent.

The learned Chief Justice has referred to the case of The Freehold Loan and Savings Society v. The Bank of Commerce, 44 Q. B. 284, as an express decision against the plaintiff; and if the language of one of the Judges who decided that case is to be regarded as the decision I agree with him, and can quite understand his deeming it binding upon him as the decision of a Court of co-ordinate jurisdiction; but my brother Cameron, who sat with us on the argument of this case and was a party to that decision, informs us that that the case was decided simply on the ground that there was there in fact no authority in writing, and the remarks to which I have referred were unnecessary to the decision of the case.

The view which I take of the matter is, that if it is necessary that these facts should appear in the affidavit this mortgage is clearly invalid; but if it is not necessary

to shew them in the affidavit, then it is equally unnecessary that they should appear either in the mortgage or in the papers filed with it.

The case of Jones v. Harris, L. R. 7 Q. B. 157, has no application, in my opinion, to the point we are now considering.

The statute there required that the affidavit filed with a bill of sale should contain a statement of the residence of the party making the bill of sale. The residence was stated in the affidavit as Dynevor Lodge, plainly insufficient to lead the inquiries of a person not possessed of a peculiar local knowledge to what was meant by Dynevor Lodge. And that case merely decided that the bill of sale, where the locality of Dynevor Lodge was more fully given, might be looked at in order to understand the affidavit.

Then as to the second objection, it appears to me to be based on an entire misapprehension of the Chattel Mortgage Act. If the plaintiff here were a mere assignee of the mortgagees there can be no question that, in order to preserve his title, it would be necessary to re-file the mortgage with the requisite affidavits. That, however, is not his position. He is the purchaser of the actual goods, not of the mortgagees' interest in them, but of the goods themselves, which, upon default occurring, the mortgagees were empowered to sell.

I cannot understand why the mortgage should be refiled in order to preserve this claim, nor how it could be effected. Quoad these goods the mortgage is satisfied, and no one could take the necessary steps to refile it.

Then was it necessary to file the bill of sale from the Bank to the plaintiff? If such a form had been gone through with, what shape would it have assumed? The plaintiff would have had to make an affidavit that this sale was bona fide and not for the purpose of enabling him to hold the goods against the creditors of the bank.

The case cited from the English Reports is very distinguishable. The Act there required that even in the case of a bill of sale where the grantor remains in possession

the bill of sale should cease to have any effect after five years. The purchaser from him acquired no better title, and unless he went into possession was liable to have it defeated by a creditor at the expiration of the five years in the same way as the assignee of these mortgagees would have been liable to have his title defeated at the expiration of each year unless the mortgage were renewed. The case of Chamberlain v. Green, 20 C. P. 304, is also different from the present case. The mortgagee had not there sold to a bond fide purchaser, but being still mortgagee without any conveyance from his mortgagor of the equity of redemption, granted a lease to him, the possession never having been changed. A creditor therefore, whose writ was lodged before the lease was executed, finding that at the expiration of the year the mortgage was not refiled seized the goods. The mortgagee had obviously no answer; there was no absolute bill of sale from the mortgagor registered with the prescribed formalities and there was no actual change of possession.

In the present case the mortgagees have sold, and the property in the goods passed from them to the plaintiff; as between them there was a valid sale liable to be defeated possibly by an execution creditor of the Bank. Upon the sale the plaintiff entered into a new arrangement with the original debtor, by which he leased them to him upon certain terms.

It is conceded that if the bill of sale had been registered the defendant's execution would not have attached, and by a parity of reasoning the same result would follow if the possession had been taken by the purchaser. It cannot be material whether that possession was for a day or a year. Having a title to the goods he would have a perfect right to lease them to Brown, and it is difficult to perceive the difference so far as the defendant is concerned, between that state of things and the one we are considering.

It is not necessary in this view to consider the decisions in the line of cases of which Baldwin v. Benjamin, 16 U. C. R. 52, on the one side, and Turner v. Mills, 11 C. P.