366, on the other, are illustrations, and which Mr. McClive considered to be conflicting, but he will, I think, find on more careful examination that the supposed conflict does not exist.

I think the plaintiff's title was not successfuly impeached, and that this appeal should be allowed with costs.

SPRAGGE, C. J. O.-I agree in the opinion expressed by my brother Burton that the first ground of objection fails, and in the reasons given by him leading to that conclusion. If the sale by the bank to the plaintiff was a good sale, and it does not seem to be impeached, it would be impossible after that sale to re-register the mortgage. It would be impossible because the statement required by sec. 10 of the Act, R. S. O. ch. 119, and the affidavit required by sec. 11, could not be made.

It is a different question, whether the plaintiff, being purchaser from the bank, should not have registered the bill of sale from the bank to himself. The statute requires that every sale of goods and chattels not accompanied by an immediate delivery and followed by an actual and continued change of possession, shall be in writing; and shall be registered within the time, and in the manner required by the Act; and it then goes on to provide what shall be the consequences if this be not done, viz., that "the sale shall be absolutely void as against the creditors of the bargainor, and as against subsequent purchasers or mortgagees in good faith."

The party complaining of this sale is a judgment creditor, not however of the bargainor, but of the original mortgagor, and the statute gives him no locus standi in such case; and it would be strange if it did. He had no interest in the goods, other than subject to the mortgage to the bank. The sale of the goods only partially satisfied that mortgage, and the bank satisfying a portion of their debt by sale under the chattel mortgage could not reasonably let in the execution creditor any more than he could or ought to have been let in if the bank had been at 3-VOL. VII A.R.

prior execution creditor, and had satisfied a portion of its debt by sale of these same chattels.

And this strange consequence might follow. An execution creditor of the bank might take in execution these same chattels. If the creditor of the mortgagor could do the same a conflict of claim would follow. The rights of the two execution creditors would be inconsistent; and without saying that the creditor of the bank would be entitled, for that point is not before us, it is sufficient to say that the statute gives no right, under the circumstances. of this case, to the execution creditor of the mortgagor. My conclusion is that the execution creditor of the mortgagor has on his second ground of appeal no locus standi to complain of what has been done, or omitted to be done, in the case; and that the appeal should be dismissed with

costs.

Since penning the foregoing I have read with care and attention the elaborate judgment of my brother Patterson in this case, but it fails to convince me of the necessity or even the practicability of re-registering the mortgage, inasmuch as it had ceased to exist. Nothing was due upon it, and no affidavit could be made shewing how much was due, as contemplated by sections 10 and 11. Then who could make such an affidavit? Carlisle could not, for no money was due to him, neither could an officer of the bank, for though money was due to the bank it was not due upon the security of the chattels comprised in the mortgage. If it be contended that the bill of sale is to be registered Carlisle was the person upon whom it was incumbent to register it, if for his own protection he deemed it necessary or advisable to do so. But then the question arises, against what classes of persons is he to be protected? or, in other words, by what classes of persons could the sale to him be impeached on the ground of non-registration? or again, in other words as against whom does the statute make the unregistered bill of sale void? The Act says: 'as against the creditors of the bargainor, and as against subsequent purchasers or mortgagees in good faith." The

defendant fills none of these characters. Without the statute it would not be void at all. The defendant therefore must bring himself within the statute, or he has no locus standi in Court. This difficulty appears to me to be insuperable.

My brother Patterson is probably right in saying that the statute, unless construed as he construes it, leaves some mischiefs arising from property in chattels being in one hand and the possession in another unremedied; but such mischiefs are not for us to remedy. The statute varies the Common Law rights of parties. So far as it does this, expressly or by necessary implication, we must hold the Common Law varied, but no further. This is a maxim from which we are not at liberty to depart, and I think we should depart from it very decidedly, if we were to hold that the execution creditor of Brown has a right to come into Conrt and complain either of the mortgage to the bank not being re-registered, or of the bill of sale from the bank to Carlisle not being registered.

In Karet v. The Kosher Meat Supply Association, 2 Q. B. D. 361, there was a bill of sale, not a mortgage; the statute required re-registration within five years; there was an assignment within five years of the chattels comprised in the bill of sale, but there was no re-registration; and the question was whether the assignee was in the same position as to re-registration as was his assignor; and it was held that he was. In that case the affidavit required upon re-registration could be made without difficulty, and there was really no reason why the bill of sale should not be re-registered. The cases would have been parallel if in this case Carlisle had been assignee of Brown's mortgage to the bank, instead of being as he was, a purchaser from the bank of the chattels comprised in the mortgage.

I agree that in such a case the chattels remaining in the possession of Brown after the sale to Carlisle, as well as before, he, Brown, might, as pointed out by the Court in the case cited, go on obtaining credit, his creditors not

having such protection as registration would afford them; but the difficulty is, not only that the case is not touched. by the statute, but that the machinery provided by the statute is inapplicable to such a case, and machinery suitable to it would need to be provided.

I am, therefore, still of opinion that the plaintiff is entitled to our judgment.

PATTERSON, J. A.-The facts involved in this case may be stated in a few words.

One Brown made a chattel mortgage to the Consolidated Bank, dated 22nd August, 1878, to secure a debt of $5,000, payable in one year with interest at seven per cent., covering his household furniture and a few other household articles, all of which were in or about his dwelling house at St. Catharines.

The bank gave to Mr. Nicholls, the manager of its office at St. Catharines, a formal power of attorney, dated 6th August, 1878, to act for the bank in taking the mortgage, and to make all affidavits, &c.

The mortgage was filed on the 24th August, 1878, with a regular affidavit of execution, and with an affidavit of bona fides made in the terms prescribed by the second section of the Act respecting mortgages and sales of personal property, R. S. O. ch. 119, by Mr. Nicholls, who was described in it as "Manager of the Consolidated Bank of Canada at St. Catharines." The power of attorney was annexed to the mortgage and filed with it.

The mortgage was duly refiled on 22nd August, 1879, with a statement showing $5,780.12 still due upon it.

On 22nd September, 1879, a document was executed by the bank appointing Mr. Woodruff bailiff for the purpose of seizing and taking possession of the goods and chattels mentioned in the mortgage, and requiring him to proceed forthwith to a sale of the goods and chattels according to the terms of the mortgage.

Under this authority Mr. Woodruff, after having had the property valued, sold it to the plaintiff on 12th April,

1880, for $900 by private sale, and made a bill of sale of it, which sale is expressed in that instrument as being made under the warrant of 22nd September, 1879. The plaintiff then rented the goods and chattels to Brown, who remained in possession of them as he had always been.

The learned Judge at the trial found that the plaintiff purchased the goods in good faith that he never took possession of them, but allowed them to remain in the possession of Brown.

The plaintiff himself said, in his evidence at the trial, At the time I bought these goods Brown was indebted to me about $1,000. I think one object I had in buying these goods was that I thought there was ample security for the money required by the bank, and also additional security for his indebtedness to me at that time; the goods seemed to be worth about $5,000. I never had any understanding that he could have them when he paid me and the bank. If he paid me and what I paid the bank, I think I would have let him have the goods back. When I said I thought I would have reconveyed if I got the $900, I did not say there was a bargain that I should do so. There was no such bargain."

The defendant had had an execution against Brown in the hands of the sheriff from 28th September, 1878. Under this execution the sheriff, who happened to be the same Mr. Woodruff who had acted as bailiff for the bank, seized the goods. Hence this interpleader.

The case for the defendant is put upon two grounds: 1st. That the chattel mortgage was always void as against him, because in the first affidavit of bona fides Mr. Nicholl did not state that he was aware of all the circumstances connected with the mortgage. 2ndly. Because, although Brown remained in possession of the goods after 22nd of August, 1880, when the year from the refiling of the mort gage expired, it was not again refiled, nor was any instrument filed under the provisions of the statute.

The issue is whether the goods were, at the time of