Canada John Augustus Barron.

The Bills of Sale and Chattel mortgage Acts of the several provinces of the ... online

. (page 39 of 57)
Online LibraryCanada John Augustus BarronThe Bills of Sale and Chattel mortgage Acts of the several provinces of the ... → online text (page 39 of 57)
Font size
QR-code for this ebook


assignment must satisfy himself, that the statute has been
duly complied with in this respect.

There is no objection to the solicitor of the assignor being
the witness, (a) but it has been held, in effect, that the
assignee himself cannot be the attesting witness, (b)

(5) See sections 8 and 9, ante. As it is not compulsory
that an assignee should file his assignment of mortgage,
except in the event of the mortgage being renewed, it would
seem that an assignee, when seeking to enforce his mort-
gage prior to the period when it should be renewed, could
not be prejudiced by the registration of an imperfect
assignment ; if an assignee's security be good without
registration, imperfect registration could not make it bad ;
but this would probably be otherwise in the event of a
conflict taking place between the assignee and other
parties, after the period has elapsed, within which the
mortgage was required to be refiled; because then, the
statute requires also that the assignment shall be regis-

(y) Home v. Hughes, 6 Q. B. D. 676.
(i) Armstrong v. Ausman, 11 U. C. Q. B. 498.
(a) Penworden ▼. Roberts, 9 Q. B. D. 137.
(6) Seal ▼. Claridge, 7 Q. B. D. 516.



Digitized by



Google



SECTION 21. 465

tered, and this section requires certain formalities to be
observed in its registration. As the statute does not make
registration compulsory, the assignee of a mortgage for
valuable consideration will be preferred as against a bona
fide purchaser for value without notice, even though the
assignment be not registered, (c)

(6) In addition to the mortgagee or the executors or
administrators of the mortgagee, (d) the assignee of a
mortgage has, under this section, the power given him to
execute the certificate of discharge of mortgage.

(7) See section 18.

Mortgages and Sales of Chattels in Unorganized Districts.

21. (1) Where the personal property (2) mortgaged or Registration
sold is within a Provisional Judicial District, (3) the provi- °' chattel
sions of this Aot (4) shall apply to such instrument with the Provisional 1 *
substitution of "the clerk of the District Court" (5) for Judicial Dis-
14 the clerk of the County Court," and with the substitution tricts.
of *' ten days" (6) for " five days " as tbe time within which
the instrument or a copy (7) thereof shall be registered, but
this section shall not apply to any portion of a territorial
district which forms part of a Provisional Judical Dis-
trict. (8) R. 8. 0. 1877, cap.119, sec. 17, 43 Vic. cap. 15, sec. 7.

(1) Prior to 40 Vic, cap. 24, " An Act respecting the Ter.
ritorial and Judicial Districts of the Province, and the Pro-
visional County of Haliburton," there was no provision for
the registration of bills of sale and chattel mortgages in
Provisional Judicial Districts. Section 14 of that Act is
here re-enacted, with the substitution of a reference to " this
Act " instead of to " Con. Stat. U. C, cap. 45."

The only Provisional Judicial Districts in existence are
two, namely, Algoma and Thunder Bay.

(c) Wilson v. KMball, 27 N. Y. 300.

(d) Section 17, supra.

B.M. 80



Digitized by



Google



466



BARRON ON MORTGAGES, ETC.



That of Algoma consists of

1. Albert,

2. Allan,

8. Anderson,

4. Archibald,

5. Assiginack,

6. Awenge,

7. Aweres,

8. Baldwin,

9. Balfour,

10. Barrie Island,

11. Bidwell,

12. Billings,

13. Bridgland,
14 Bright and

Bright Additional,

15. Burpee,

16. Campbell,

17. Carlyle,

18. Carnarvon,

19. Cartier,

20. Cascaden,

21. Chesley,

22. Cobden,

28. Cockburn Island,

24. Coffin, and

Coffin Additional,

25. Creighton,

26. Dawson,

27. Day,

28. Denison,

29. Dennis,

80. Deroche,

81. Dowling,

82. Drury,



the Townships of—
88. Ermatinger,

84. Esten,

85. Fairbank,

86. Fenwick,

87. Fisher,

88. Galbraith,

89. Gilmor,

40. Gladstone,

41. Gordon,

42. Goschen,
48. Gough,

44. Gould,

45. Graham,

46. Grasett,

47. Hallam,

48. Hart,

49. Haughton,

50. Haviland,

51. Herrick,

52. Hilton,

53. Hodgins,

54. Howland,

55. Humboldt,

56. Jarvis,

57. Jocelyn,

58. Johnson,

59. Kars,

60. Kirkwood,

61. Korah,

62. Laird,
68. Lefroy,

64. Levack,

65. Lewis,

66. Ley,



Digitized by



Google



SECTION 21.



467



67. Long,

68. Lome,

69. Louise,

70. Mack,

71. May,

72. Meredith,
78. Merritt,

74. Mills,

75. Morgan,

76. Morin,

77. Macdonald,

78. McGiverin,

79. McMahon,

80. Montgomery,

81. Nairn,

82. Otter,
88. Palmer,

84. Parke,

85. Parkinson,

86. Patton,

87. Pennefather,

88. Plummer, and
Plummer Additional,

89. Prince,

90. Proctor,

91. Rayside,

92. Robinson,

93. Rose,

And the Town of Sault Ste.



94. Rutherford,

95. Ryan,

96. Salter,

97. Sandfield,

98. Scarfe,

99. Shakespeare,

100. Shedden,

101. Sheguiandah,

102. Snider,
108. Spragge,

104. St. Joseph,

105. Sault Ste. Marie,

106. Striker,

107. Tarbutt, and

Tarbutt Additional,

108. Tarentorus,

109. Tehkumah.

110. Tennyson,

111. Thessalon River,

112. Thompson,
118. Tilley,

114. Trill,

115. Tupper,

116. Vankoughnet,

117. Victoria,

118. Waters,

119. Wells,

120. Whitman.
Marie. (50 Vic. cap. 64.)



Together with all the remaining territory included within
the following limits : — Commencing at the water's edge of
the Georgian Bay of Lake Huron near the most westerly
month of French River, in the production southerly of the
east limit of the Township of Humboldt ; thence due north



Digitized by



Google



468 BABBON ON MORTGAGES, ETC.

along a line formed by the said produced limit, the east
limit of the said Township of Humboldt, the limit between
timber berths numbered 59 and 67, 60 and 68, 61 and 69,
and along the east limits of the Townships of Waters,
Snider and Kayside, and continuing due north to the
northerly limit of the Province, thence along the said
northerly limit of the Province ; westerly to the meridian
of eighty-five degrees west longitude ; thence along the
said meridian southerly to the southerly limit of the
Province, thence along the said southerly limit of the
Province ; easterly to a point in Lake Huron opposite the
southern extremity of the Great Manitoulin Island ; thence
easterly and north-easterly, so as to include all the Islands
in Lake Huron not within the settled limits of any county
or district, to the place of beginning. E. S. 0. 1877, cap. 5,
sec. 1 (48) ; 47 Vic. cap. 8, ss. 5 and 8 ; 47 Vic. cap. 14,
sec. 1 ; Proclamation dated 3rd October, 1884 ; 48 Vic.
cap. 20, Preamble; 49 Vic. cap. 19, sec. 1. (a)

That of Thunder Bay consists of the Townships of—



1. Blake,


18. McTavish,


2. Byron,


14. Moss,


8. Gommee,


15. Neebing and Neebing


4. Crooks,


Additional,


5. Dorion,


16. Neepigon,


6. Gillies,


17. O'Connor,


7. Homer,


18. Oliver,


8. Lybster,


19. Pic,


9. Lyon,


20. Paipoonge,


10. Marks,


21. Pardee,


11. McGregor,


22. Sibley,


12. Mclntyre,


28. Strange,



The Town of Port Arthur.

(a) B. S. 0. 1887, cap. 5, sec. 1, sub-s. 44.



Digitized by



Google



SEOTION 21. 469

Together with the remaining territory within the Pro-
vince lying west of the meridian of eighty-five degrees of
west longitude.

But such portions of the said District of Thunder Bay as
are by this Act included within the limits of the Territorial
District of Kainy River, shall, for the purposes of " The
Unorganized Territory Act," continue to form part of the
said Territorial District of Rainy River. R. S. 0. 1877,
cap. 5, sec. 1 (46) ; 47 Vic. cap. 14, sec. 1 ; Proclamations
dated 3rd Oct., 1884, and 18th January, 1885 ; 48 Vic. cap.
20, Preamble ; 49 Vic. cap. 19, sec. 1. (b)

(2) In this section, the use of the expression " personal
property " is to be observed. In that part of section
eight, which corresponds with this portion of this section,
the term, " property " alone is used, and throughout the
rest of the Act the term "goods and chattels " is employed.
The Imperial Act (c) makes use of the expression " personal
chattels;" but then this expression is subsequently inter-
preted (sub-sec. vii.) and given a limited application,
so limited in fact, that it has been held not to include
anything but that which "at the moment when the bill of
sale is given and the provisions of the Act are to be applied
to it, might be delivered to the assignee, and are not, but
are left in the enjoyment of the assignor, (d) Unless the
expression " personal property," in this section, is confined
in its application to such property only, as is embraced
within the meaning of the expression "goods and chattels "
in section one, then this section is given a much wider
operation than was intended by the legislature it should
possess. Personal property has a very wide application.
It covers whatever wants either the duration or immova-

(b) B. 8. 0. 1887, cap. 5. sec. 1, sub-s. 45.

(e) 17 <fc 18 Vic cap. 36.

(d) Brantom v. Qriffits, L. R, 1 C. P. D. 349 : 2 C. P. D. (C. A.) 212.



Digitized by



Google



470 BARRON ON MORTGAGES, ETC.

bility attending things real, (e) whereas the expression
" goods and chattels " as found in this statute, is restricted
in its application to movable Roods, such as are wholly
personal in their nature and can be delivered from hand
to hand. (/) This definition, however, it has been held, is
not meant to confine the expression " goods and chattels "
to such things as can be delivered from hand to band " at
the moment when the bill of sale or mortgage is given and
the provisions of the Act are to be applied," but to such
things as can be delivered from hand to hand and are
" mentioned in the mortgage, and are in existence, when
the mortgagee insists on his charge (ff) : but this definition has
not been adopted of late. The property must be capable of
immediate delivery, (g) and it is only to such " goods and
chattels " that an instrument under the Act has refer-
ence, and any instrument embracing property not within
the definition of the expression " goods and chattels " is
not within the statute, (h) The " personal property "
referred to in this section, is such only as may be mort-
gaged or sold by an instrument which is " subject to the
provisions of this Act," and as the Act applies only to an
instrument embracing property within the meaning of the
expression " goods and chattels " as used in section one, it
follows that the expression " personal property " in this
section has no wider signification, than the expression
" good 8 and chattels " as used in section one.

(8) See foot note (1) supra.

(4) Whenever any instrument shall be executed, which
comes within the operation and control of the statute (t)

(e) Whar. Law Lex.

(/) Frazer ▼. Lazier, 9 U. C. Q. B. 679 : see also ante, cap. 2, at p. 36,
et $eq.
(ff) Re Thirkell, Perrin v. Wood, 21 Gr. at p. 609.

(g) Ante, p. 50.

{h) Frazer v. Lazier, ante, pp. 60, 52.

(i) Baldwin v. Benjamin, 16 U. C. Q. B. 52 : Mather* v. Lynch, 26 U. C
Q. B. 254, p. 363 : Walker v. Nilet, 18 Grant, 212.



Digitized by



Google



SECTION 22. 471

then this section applies to such instrument, but not
otherwise.

(5) The clerk of the district court is here substituted
for the clerk of the county court. ( j )

(6) As to the time within which the instrument must be
filed, see ante section 1, p. 288, note (7) p. 816.

(7) See ante section 1, p. 288, note (6) p. 815.

(8) See next page.

22. (1) Where the personal property (2) mortgaged or In Territo-
sold is within a Territorial District (3) the provisions of this rial Distriots
Act (4) shall apply to such instrument, with the substitution
of the " clerk of the first division court of the district " (5)
for the " clerk of the county court," and with the substitu-
tion of " ten days " for " five days '* (6) as the time within
which the instrument, or a copy thereof, (7) shall be regis-
tered (8). B. 8. O. 1877, cap. 119, sec. 18 : 43 Vic. cap. 15,
sec. 8.

(1) Prior to 40 Vic. cap. 24, there was no provision for the
registration of bills of sale and chattel mortgages in ter-
ritorial districts. Section 14, paragraph (2) of that Act is
here re-enacted.

(2) See next preceding section, note (2) and chapter on
goods and chattels, ante p. 81.

(8) There are in Ontario three territorial districts.
They are Muskoka, Parry Sound, and Rainy River.

That of Muskoka consists of the townships of :

1. Baxter 6. Franklin

2. Brunei, 7. Freeman,
8. Cardwell, 8. Gibson,

4. Chaffey, 9. Macaulay,

5. Draper, 10. McLean,

(?) See therefore sees. 8 <fc 9.



Digitized by



Google



472



BA&BOM ON MORTGAGE8, ETC.



17. Ryde,

18. Sinclair,

19. Stephenson,

20. Stisted,

21. Watt,

22. Wood,

2. Gravenhurst,



11. Medora,

12. Monck,

13. Morrison,

14. Muskoka,

15. Oakley,

16. Ridout,

And the villages of —

1. Bracebridge, and

Together with the islands in the Georgian Bay lying
west of the said territory and adjacent thereto, and the
islands in the River Severn lying northerly of the middle
of the main channel of the River Severn and adjacent
to the townships of Baxter, Wood and Morrison.

Bat for all judical purposes not provided for by The Act
respecting the Administration of Justice in Unorganized
Territories, chapter 91, of the Revised Statutes, the said
district shall continue to form part of the county of Simcoe.
R. S. 0. 1877, cap. 5, sec. 1 (44), last part ; 47 Vic. cap. 8,
ss. 2, 6. (a).

That of Parry Sound consists of the Townships of—



1. Armour,

2. Bethune,
8. Blair,

4. Brown,

5. Burpee,

6. Burton,

7. Carling,

8. Chapman,
9- Christie,

10. Conger,

11. Cowper,



12. Croft,
18. Ferguson,

14. Ferrie,

15. Foley,

16. Gurd,

17. Hagerman,

18. Hardy,

19. Harrison,

20. Him s worth,

21. Humphry,

22. Joly,



(a) R. S. 0. 1887, cap. 5, sec. 1, sub-s. 46.



Digitized by



Google



SECTION 22. 473

28. Laurier, 84. Nipissing,

24. Lount, 85. Patterson,

25. Machar, 86. Perry,

26. Mills, 87. Pringle,

27. McConkey, 88. Proudfoot,

28. McDougall, 89. Ryerson,

29. McKellar, 40. Shawanaga,

80. McKenzie, 41. Spence,

81. McMurrich, 42. Strong,

82. Monteith, 48. Wallbridge,
88. Mowat, 44. Wilson.

And the Town of Parry Sound, (50 Vic. cap. 61).

Together with any other territory included within the
following description, that is to say : — Commencing at a
point where the southerly boundary of the township of
Conger intersects the waters of the Georgian Bay, being
the south-west corner of the township of Conger ; thence
easterly along the southerly boundary of the townships of
Conger and Humphry to the south-east corner of the
township of Humphry ; thence northerly along the easterly
boundary of Humphry to the north-east corner of Hum-
phry; thence easterly along the southerly boundaries of
the townships of Monteith, McMurrich, Perry and Bethune,
to the south-east corner of Bethune; thence northerly
along the easterly boundaries of the townships of Bethune,
Proudfoot, Joly and Laurier, to the south boundary of the
township of Himsworth ; thence along the south and east
boundaries of Himsworth, to the north-east corner of
Himsworth ; thence westerly along the northerly boundary
of Himsworth to Lake Nipissing ; thence westerly along
the main channel of said lake, and along the main channel
of French River, and along the southerly boundary of the
District of Nipissing to where the westerly boundary of the
said District of Nipissing strikes the water's edge of the



Digitized by



Google



474 BARRON ON MORTGAGES, ETC.

Georgian Bay; thence south-easterly along the easterly
shore of the said Georgian Bay to the place of beginning,
including Parry Island and the Islands opposite to and
along the shore of the said district.

But for all judicial purposes not provided for by " The
Unorganized Territory Act," the said district shall continue
to form part of the County of Simcoe. B. S. 0. 1877, cap.
5, sec. 1, (45) last part; 47 Vic. cap. 8., ss. 8, 6. (t)

That of Bainy Biver consists of all that part of the Pro-
visional Judicial District of Thunder Bay, lying west of a
line drawn due north and south through the most easterly
point of Hunter's Island. 48 Vic. cap. 20, Preamble.

But for all judicial purposes not provided for by " The
Unorganized Territory Act," the said district shall continue
to form part of the District of Thunder Bay. 47 Vic. cap.
14, sec. 16. (c)

(4) See note (4) to preceding section.

(5) The duties of the clerk of the first division court of
the district, are similar to those of the clerk of the county
court, (d)

(6) See ante, note (7), p. 816.

(7) It will be observed that a copy may be filed as undei
section 1, ante p. 283. (e)

(8) Begarding the term " shall be registered/ 1 see ante,
sec. 1, p. 283. (0

(b) R. S. 0. 1887, cap. 5, sec. 1, sub-e. 47.

(c) R. S. 0. 1887, cap. 5, sec. 1, sub-s. 48.

(d) See ante note (7), p. 316, and sees. 8 & 9, p. 408, 416.

(e) See foot note (6), at page 315.
(0 Note (8), p. 321.



Digitized by



Google



SECTION 28.



475



2 3. Where the personal property (1) mortgaged or sold In Tempo-
is within the Temporary Judicial District of Nipissing, "-JT Judicial
(2) the provisions of this Act (3) shall apply to such instru- Ninissmc
ment, with the substitution of "the clerk of the county
court of the County of Renfrew/' (4) for " the clerk of the
county court, " and with the substitution of ** twenty
days" for "five days" (5) as the time within which the
instrument or a copy thereof shall be registered. (6) R. S.
0. 1877, cap. 119, sec. 19 : 43 Vic. cap. 15, sec. 9.



Of-



(1) See ante section 21, note (2).

(2) The Temporary Judicial district of Nipissing consists



1. Airey,

2. Appleby,
8. Awrey,

4. Badgerow,

5. Ballantyne,

6. Biggar,

7. Bishop,

8. Blezard,

9. Bonfield,

10. Boulter,

11. Bower,

12. Boyd,

13. Broder,

14. Butt,

15. Caldwell,

16. Calvin,

17. Cameron,

18. Canisbay,

19. Chisholm,

20. Deacon,

21. Dill,

22. Devine,

23. Dryden,

24. Dunnet,



25. Fitzgerald,

26. Ferris,

27. Field,

28. Finlayson,

29. French,

80. Freswick,

81. Grant,

82. Hagar,
88. Hawley,

84. Hugel,

85. Hunter,

86. Kirkpatrick,

87. Lauder,

88. Lister,

89. Lorrain,

40. Lyell,

41. Mattawan,

42. McCraney,
48. McKim,

44. McLaughlin,

45. Merrick,

46. Murchison,

47. Mulock,

48. Neelon,



Digitized by



Google



476 BAEB0N ON MORTGAGES, ETC.

49. Olrig, 56. Ratter,

50. Osier, 57. Robinson,

51. Papineau, 58. Sabine,

52. Paxton, 59. Springer,
58. Peck, 60. Widdifield,

54. Pentland, 61. Wilkes,

55. Phelps,

Together with any other territory included within the
following description : — Commencing at the water's edge of
the Georgian Bay, near the most westerly mouth of French
river, in the production southerly of the east limit of the
township of Humboldt; thence due north along a line
formed by said produced limit, the east limit of said town-
ship of Humboldt, the limit between timber berths num-
bered 59 and 67, 60 and 68, 61 and 69, and along the east
limits of the townships of Waters, Snider and Eayside and
continuing due north to the northerly limit of the Province
of Ontario ; thence easterly along the said northerly limit
to the boundary between Ontario and Quebec; thence
along the said boundary between Ontario and Quebec
southerly and south-easterly to the north-west corner of
the township of Clara; thence southerly and easterly along
the westerly and southerly boundaries of the townships of
Clara, Maria and Head to the westerly boundary of the
township of Rolph; thence southerly along the westerly
boundaries of the townships of Rolph, Wylie, McKay
and Fraser to the north-east corner of the township of
Richards ; thence westerly along the northerly boundaries
of the townships of Richards and Burns to the north-west
corner of the said township of Burns; thence' southerly
along the westerly boundary of Burns to the north-east
corner of the township of Jones; thence westerly along
the northerly boundary of Jones to the north-east comer
of the township of Lyell ; thence southerly along the
easterly boundary of Lyell to the south-east corner of



Digitized by



Google



SECTION 28. 477

Lyell ; thence westerly along the southerly boundaries of
the townships of Lyell and Sabine to the easterly boundary
of the township of Clyde; thence northerly along the
easterly boundaries of the townships of Clyde and Nightin-
gale to the north-east corner of the township of Nightin-
gale ; thence westerly along the northerly boundaries of
the townships of Nightingale, Lawrence, Livingstone and
McClintock to the easterly boundary of the township of
Sinclair ; thence northerly along the easterly boundary of
Sinclair to the. southerly boundary of the township of
Bethune; thence easterly to the south-east corner of
Bethune ; thence northerly along the easterly boundaries
of the townships of Bethune, Proudfoot, Joly and Laurier,
to the south boundary of the township of Himsworth ;
thence along the southerly and easterly boundaries of
Hims worth, to the north-east corner of Himsworth ; thence
westerly along the northerly boundary of Himsworth to
Lake Nipissing ; thence westerly along the main channel
of said lake and along the main channel of French river,
and along the channel which runs north of the more
northerly of the two islands on which the town plot of
Coponaning has been laid out, to a point where the waters
divide into the North channel and the Bad Biver channel ;
thence to the northern shore of the North channel ; thence
along the said northern shore and the waters's edge of the
Georgian Bay to the place of beginning. 47 Vic. cap. 8,
88. 1, 6.

2. The express mention herein of certain towns and
villages as being included in certain counties or districts
in which they would have been included without such
express mention, under the general provisions in that
behalf herein contained, shall not prevent the application
of such provisions to the cases of towns and villages not
expressly mentioned. B. S. 0. 1887, cap. 5, sec. 2.



Digitized by



Google



I



478 BARRON ON MORTGAGES, ETC.

(3) See section 21, ante p. 465, foot note (4).

(4) See sections 8 and 9, ante pp.408, 416.

(5) See section 1, ante p. 284, note (7), p. 816.

(6) See note (8), preceding section.

Fees for 24. For services under this Act, the clerks aforesaid

service. shall be entitled to receive the following fees : —

1. For filing each instrument and affidavit, and for enter-
ing the same in a book as aforesaid, fifty cents ;

2. For filing assignment of each instrument and for making
all proper endorsements in connection therewith, fifty cents.
44 Vic. cap. 8, sec. 2 : 48 Vic. cap. 27, sec. 2 : 49 Vic. cap.
16, sec. 43.

3. For filing certificate of discharge of each instrument, and
for making all proper entries and endorsements connected

therewith, twenty-five cents ;

4. For searching for each paper, ten cents ; and

5. For copies of any document with certificate prepared,
filed under this Act, ten cents for every hundred words.
R. S. 0. 1877, cap. 119, sec. 22 (3-5), 48 Vic. cap. 27, tec. 2.

Miscellaneous.

Registration 26. (1) Where, under any of the provisions of this

where lime j± c ^ the time for registering or filing any mortgage, bill of

-J^l e 6 5 * sale, instrument, document, affidavit or other paper, expires
pi res on a • u u

day on on a Sunday or other day on which the office in which the

which offices registering or filing is to be made or done is closed, and by

are closed. reaBO n thereof the filing or registering cannot be made

or done on that day, the registering or filing (2) shall, so

far as regards the time of doing or making the same, be

held to be duly done or made if done or made on the day

on which the office shall next be open. (3) 48 Vic. cap. 27,

sec. 1.



Digitized by



Google



SECTION 25. 479

(1) This section, it is presumed, was passed in conse-
quence of the court holding in McLean v. Pinkerton, (a)
that Sunday counted as one day, whether it intervened
or was the first or last day of the five.

When, by statute, a certain number of days is fixed for
doing an act, the last of which falls upon a Sunday, that
day is, in such case, included in the time given, and the
party has no further time to do the act, unless the statute
expressly provides that it may be done on the day follow-
ing. (6)

(2) The connecting of the two words " registering " and
"filing" in the manner this section uses them, indicates



Online LibraryCanada John Augustus BarronThe Bills of Sale and Chattel mortgage Acts of the several provinces of the ... → online text (page 39 of 57)