their seizure by the sheriff, the property of the plaintiff as against the defendant.

I do not find any statement of when the seizure took place, but I assume it was after 22nd August, 1880.

Upon the first point I agree with my learned brothers who hold that the statute was complied with. It is true that the statute requires that when the affidavit is not made by the mortgagee (who may make it whether he has or has not any personal knowledge of the transaction, so far as the expressed requirements are concerned) it must be made by an agent possessed of two qualifications, viz., a proper authority in writing to take the mortgage, and a knowledge of all the circumstances connected therewith. But while it requires the authority to be filed, it does not require it to be verified by oath, although it does require the execution of the mortgage to be proved by the affidavit of a witness thereto; nor does it require the fact of the agent's acquaintance with the eircumstances to be shewn by affidavit or otherwise. I do not attempt to speculate upon what would be the effect upon the validity of a mortgage in case the agent who made the affidavit was shewn to have no knowledge whatever of the transaction, and yet the transaction itself should be proved to be bona fide and exactly as stated in the affidavit; and I do not try to form an opinion as to the extent or character of the knowledge which the agent ought to have. Such questions may possibly arise and be found somewhat troublesome. I think it is enough for the present purpose to decide that the statute which gives express directions as to what the affidavit, whether made by the mortgagee or his agent, shall contain, has no direction to include what is now complained of as wanting. I say nothing of the policy of requiring such a statement to be contained. No doubt plausible reasons may be given for saying it would be better to have it there; and there is as little room to doubt that other enactments of this statute might be varied or supplemented without detriment to its intelligibility or adaptation to the actual conduct of the business affected

by it. Such changes are however for the legislature to make if they are deemed desirable. This affidavit, which complies with all that is set down in terms, must in my opinion be held to be sufficient.

The other objection is less technical in its character, and raises the question of the sufficiency of the statute to accomplish the direct purpose for which it was enacted.

The policy of the statute I understand to be to discourage secret conveyances of goods and chattels, by treating a person who remains in actual possession of goods. which once were his, as being, with relation to creditors and purchasers in good faith, the true owner, unless there is a registered document shewing that the title is different from that which the possession would imply. See recital in the English Bills of Sale Act, 1854.

Before the law was enacted, the Courts were often occupied with litigation at the instance of creditors, concerning the ownership of goods seized in the possession of their debtor, but to which some third party asserted title derived from the debtor. The continued possession was always evidence of want of bona fides in the alleged sale or conveyance, but it was a circumstance that could be explained away, if a satisfactory explanation were forthcoming.

Our first statute on the subject was 12 Vic. ch. 74, passed in 1849. It was copied from the statute of the State of New York, of 1833, ch. 279, and enacted that every mortgage or conveyance intended to operate as a mortgage of goods and chattels, which should not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, should be absolutely void as against the creditors of the mortgagor and as against subsequent purchasers and mortgagees in good faith, unless the mortgage or conveyance, or a true copy thereof, together with an affidavit of execution, should be filed as directed by the Act. The third section declared that every mortgage or copy filed in pursuance of the Act should 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 true copy of such mortgage, together with a statement exhibiting the interest of the mortgagee in the property thereby claimed by virtue thereof, should be again filed. The other provisions of the statute related to the place of filing and some other matters not material to be noticed at present, in all of which the New York Statute was taken as a model.

In the following year the legislation gave further expression to the policy indicated by the Act, by passing the statute 13 & 14 Vict. ch. 62, which amended the Act of 1849, by declaring that every sale of goods and chattels, which should not be accompanied by an immediate delivery and followed by an actual and continued change of possession of the goods sold, should be in writing, and such writing should be a conveyance under the provisions of the former Act. It also added to the requirements of the original Act, by making it necessary that the mortgages and conveyances filed should be accompanied with an affidavit of bona fides. Thus the law remained until 1857, when, by 20 Vict. ch. 3, the two earlier Acts were repealed and the law recast in the shape in which we have it at present.

Under the present law all the essentials of the Acts of 1849 and 1850 remain unchanged, except that an absolute bill of sale does not require to be refiled. The changes made have been principally by the addition of new provisions which do not come in question at present.

The policy of the law has undergone no alteration; the added provisions rather emphasizing it, their tendency being towards the more full exhibition on the face of the recorded instrument of the exact dealings in respect of the property.

In the case before us, the goods, which had been the property of the judgment debtor and in his actual possession,

remained in his actual possession, precisely as they had always been, until seized under the execution.

If the statute fails to reach this state of things because something has taken place between the mortgagee and a stranger, and something more between the stranger and the mortgagor, while the creditor sees no change, and no change in fact takes place in the possession or apparent ownership of the goods, it must have fallen short of accomplishing its purpose. It must have been so unskilfully framed as not only to permit but to invite evasion of its object and design:

We have to see how this is. In attempting this task it would doubtless greatly aid us to have the assistance of the decisions of other courts, either English or American upon similar statutory provisions. It happens, however, that neither in England nor in the United States are the laws upon the subject exactly like ours. Yet we are not quite without English authority, for the case of Karet v. Kosher Meat Supply Association, L. R. 2 Q. B. D. 361, which is referred to by the learned Chief Justice in the Court below, deals with a question involving the same principles, though arising upon a statute not precisely like that which we have to construę.

The Acts in force in those States of the American union which have legislated upon the subject are, as we are told by Mr. Herman in his treatise on Chattel Mortgages, for the most part founded on the statutes of New York and Ohio. I have not had an opportunity of seeing the Ohio statute that of New York, as we have seen, deals with mortgages only, and not with absolute bills of sale. From what I gather from the Revised Statute of New York respecting Fraudulent conveyances and contracts relative. to goods, chattels and things in action, printed in Denio and Tracey's collection, 1852, I understand that in New York the common law is varied, if it is a variation, only by attaching to the retention of possession by the vendor or mortgagor of goods a presumption of fraud as against creditors and purchasers in good faith, which can only be 4-VOL. VII A.R.

rebutted by proof that the sale or conveyance was made in good faith and without intent to defraud such creditors or purchasers, and by requiring in case of mortgages that they shall be duly filed and refiled.

It thus appears that the policy of our law, which aims at exhibiting a record of the real state of the title in every case, whether of sale or mortgage, when actual possession does not accompany the change of ownership, is in advance of that adopted by our neighbours.

From this cause we have not the advantage of the discussion in the American Courts from the same standpoint from which we must regard them, of questions which might otherwise seem common to both systems.

This remark applies to such cases as Otis v. Stitt, 8 Barb. 102, and Parker v. Parmly, 3 N. Y. S. C. 398, in both of which the refiling of a mortgage was held to have become. unnecessary by reason of acts of the mortgagee which, in my judgment, could not, under our statute, be held to have that effect.

The case of Karet v. Kosher Meat Supply Association, arose under the Bill of Sale Act, 1854, 17 & 18 Vict. ch. 36, and an amendment made in 1866, by 29 & 30 Vict. ch. 96. The principal Act required the bill of sale to be filed within twenty-one days after it was made or given, and the amending Act declared that "the registration of a bill of sale under the principal Act shall, during the subsistence of such security, be renewed in manner hereinafter mentioned once in every period of five years;" the penalty for failing to register or to renew being the nullity of the bill of sale, as against assignees in bankruptcy, &c., &c. The bill of sale was to be renewed "by some person filing in, &c., an affidavit stating the date of such bill of sale, and names residences and occupations of the respective parties thereto as stated therein, and also the date of the registration of such bill of sale, and that such bill of sale is still a subsisting security." The bill of sale in question in that case had been duly registered, but the registration was not renewed at the end of five years.