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that the two words are synonymous, or, at any rate, that,
so far as the statute is concerned, they are intended to be
used in the same sense and to mean the same thing. The
literal meaning of the word " registration " is " the act of
inserting in the register," (c) and though the old common
law meaning of the word file, viz : "a thread, string or
wire upon which writs and other exhibits in courts and
offices are fastened or filed, for the more safe keeping and
ready turning to the same " (d) indicates the like, yet the
latter definition as to when a paper is filed, namely " when
it is delivered to the proper officer, and by him received to
be kept on file," (e) seems to declare the existence of a
difference in meaning ; indeed, it has been held that
Bouvier's definition of the word " file " is the meaning to
be given to it under statute, unless a contrary meaning is
made to appear. (/)

(a) 7 A. R. 490.

(6) Nitchie v. Townsend, 2 Sandf . (N. Y.) 296 : Rowberry v. Morgan, 9
Ex. 730: Regina v. Tlie Justices of Middlesex, 7 Jur. 396 : Ex parte Simpkin.
6 Jar. N. S. 144 : see ante, sec. 1, note (9) p. 322.

(c) Whart. Law Lex.

\d) Whart. Law Lex.

[e) Bouvier's Law Dictionary.

(/) Per Berry, J., Oorham v. Summers, 25 Minn. 81, 87.



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480 BABEON ON MORTGAGES, ETC.

(8) Except on Sundays and legal holidays the office shall
be open, hence the meaning of the word "closed "in the
section means closed by reason of the day being a Sunday
or legal holiday. Should the officer be absent from his
office during office hours, and from this cause, a mortgagee
be unable to file his mortgage, the day none the less would
count against him, and he would be left to his remedy
against the clerk. A person in charge of the office, on the
occasion of a vacancy, may receive and file a mortgage or
other instrument under the statute, and it is supposed that
a person in the office doing the clerk's work, with the
clerk's authority, would be capable of receiving and filing
instruments under the Act. (g)

An author- 26. (1) An authority for the purpose of taking or renew-
ity to take j n g a mortgage or conveyance, under the provisions of this

mortffftffes ^ c * , m *? *** a 8 enera l one *° ta ^ e an< * renew all or any
may he a mortgages or conveyances to the mortgagee or bargainee. (2)
general one. 43 Vic. cap. 15, sec. 6.

(1) See ante, section 1, note (12), p. 829 ; section 5, note
(9), p. 875 ; section 6, note (9), p. 402.

(2) It appears from this section that an authority to an
agent to take a mortgage without more, would not be 8
sufficient authority to the agent to renew. To enable the
agent to renew a mortgage on the same authority as that
upon which he took the mortgage, the authority requires
to be " to take and renew," etc. But a general authority
to take and renew mortgages or conveyances under the Act,
will be sufficient without the authority identifying any
particular mortgage or conveyance. Of course the autho-
rities are required to be in writing. It is to be regretted
that the legislature in this Act did not positively enact
that the authority mentioned in the Rev. Stat. Ont., 1887,

(^) Bishop v. Cook, 13 Barb. (N. Y.) 326 : Dodge v. Potter, 18 Barb.
(N. Y.) 193.



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SECTION 27. 481

cap. 125, sec. 6, ante, p. 381, was required to be filed as in
the case of authorities to an agent under sections 1 and 5
of that statute, ante, p. 283, 368. There appears to be
nothing requiring the filing, under section 6, of the agent's
authority, except the spirit and policy of the statute.

27. (1) All the instruments mentioned in this Act, (2) The pro-
whether for the sale or mortgage of goods and chattels, (3) perty to be
shall contain snch sufficient and fnU description (4) thereof I^Lbed
that the same may be thereby readily and easily known and
distinguished. R. S. O. 1877, cap. 119, sec. 23.

(1) This provision is not contained in our earlier Chattel
Mortgage Acts, being first introduced by 20 Vic. cap 8 ; the
word "sufficient" being subsequently substituted for the
word " efficient " found in that statute.

(2) The instruments here meant are those referred to in
sections 1, 5 and 6 ; but an assignment of mortgage (section
20) should also contain and set out a full and sufficient
description of the goods as contained in the mortgage
assigned.

It is not required, as between the bargainor and bar-
gainee, or mortgagor and mortgagee, that such a full and
sufficient description should be contained in the instru-
ment, as is pointed out by this section, and to creditors,
purchasers or mortgagees in good faith, an inaccurate or
insufficient description will avail nothing if the mortgagee
takes possession of the mortgaged property, before a creditor
acquires a right to seize the goods, or before subsequent
purchasers or mortgagees intervene, (a) because the posses-
sion taken by the mortgagee constitutes an identification
and appropriation of the property mortgaged, (b)

(a) Parkes v. St. George, 10 A.R., p. 535 : Smith v. Fair, 11 A. R. 755.

(6) Howell v. McFarlane, 16 U. C. Q. B. 469 : Call v. Gray, 37 N. H. 428 :
Morrow v. Reed, 30 Wis. 81 : Hutchison v. Roberts, 7 U. C. C. P. 475 : Mills
v.King, 14 U. C. C. P. 223.

B.M. 81



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482 . BARRON ON MORTGAGES , ETC.

(3) As to what things are capable of being mori
see ante, p. 81, chapter on Chattel Property, and pp. 82,
36 and 50.

(4) There are no words in the Chattel Mortgage Acts
that have produced more numerous decisions than the
words, " such full and sufficient description," etc., etc. The
necessity for a full description is explained in the words of
the statute that the goods and chattels mortgaged may be
" thereby readily and easily known and distinguished."

"The object and policy of the law was no doubt to
prevent secret and fraudulent assignments and mortgages
of chattels, and to afford means by which persons having
dealings with mortgagors, or otherwise interested, may
readily obtain accurate information by an inspection of
the instrument filed, and to enable such parties to distin-
guish the articles assigned. And if persons, who claim
under such instruments, do not take the precaution, or the
trouble, to follow the enactments of the statute, and omit
to describe in some reasonable way, the chattels intended
to be mortgaged in the instrument itself, so that their
iJjntity iniy be ascertained, and if loss by reason of such
omission is the result, they are themselves to blame." (c)

What is such a description, and a proper interpretation to
put upon this section is a question that has arisen and still
is frequently arising, and has occasioned not a little con-
flict of judicial opinion. Anyone who may read or examine
the instrument containing a description of the property
sold, or mortgaged, should be in a position, from the
description itself, to be able to distinguish the property
mortgaged, from other property of a similar kind. The
description of the goods and chattels should be such as to
enable him to do this, or to identify the property by means
of enquiry, which the instrument itself indicates or

(c) Per Morrison, J.A., in Holt v. Carmichael, 2 App. R. 644.



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SECTION 27. 483

directs, (rf) " It need not, however, be such a description
as that, with the deed in hand, without other enquiry, the
property could be identified, but there must be such mate-
rial on the face of the mortgage, as would indicate how the
property may be identified if proper enquiries are insti-
tuted." (e) The description should be such as to furnish
the ability to know and distinguish the goods mortgaged or
sold, not alone at the time of the execution of the instru-
ment, but at any subsequent period during the currency of
the written securities. (/) Hence, it is not necessary to
the validity of the instrument that it should so describe the
property as to enable a person to distinguish the articles
of property mortgaged by merely casting his eye upon
them, (g) "Written descriptions of property are to be
interpreted in the light of the facts known to, and in the
minds of the parties at the time ; they are not prepared for
strangers, but for those they are to affect — the parties and
their privies ;" (h) yet they must be such as will enable the
articles to be identified as against third parties, creditors
or others, claiming an interest in the property, (i)

In detinue it is necessary to ascertain the thing detained
in such a manner as that it may be specifically known and
recovered ; therefore, detinue cannot be brought for money,
corn, or the like, for that cannot be known from any other
money or corn, unless it be in a bag or sack, for then it
may be distinguished and marked, (j) And greater cer-



{d) Chapin v. Crane, 40 Me. 561 : Elder v. Miller, 60 Me. 118 : Showegan
Bank v. Farron, 46 Me. 239 : Winter v. LandpJiere, 42 Iowa, 471 : Smith v.
McLean, 24 Iowa, 322 : Lawrence v. Evatts, 7 Ohio St. 194 : Tindall v.
Wanton, 74 Ind. 495.

(«) Per Ritchie, C.J., McCall v. Walff, 13 S. O. Can. 133.

(/) Per Wilson, C.J., Corneill v. AbeU, 31 C. P., p. 109.

(q) Holt v. Carmichael, supra.

<h) Per Coaley, C.J., Willey v. Snyder, 34 Mioh. 60.

(i) Per Ritchie. C.J., McCall v. Waif, 13 B. C. Can., p. 133.

0) 3 Bl. Com. 152.



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484 BARRON ON MORTGAGES, ETC.

tainty is required in the description of the goods in the
action of detinue, than in the action of trover, (k) Though
words used in 8 Bl. Com. 152 are " specifically known and
recovered/' yet a description sufficient in detinue might not
be such a full and sufficient description as is made neces-
sary under this section. (I) The consideration of what
description satisfies, in an action of detinue, however, is of
assistance in ascertaining whether a mortgagee can claim
title to property which has become changed in character
since the execution of the mortgage. If a mortgagee can
maintain an action of detinue against a defendant for
refusing, upon demand, to give up certain property, then a
mortgage will bind property mortgaged, though the
character of the property has become so altered as to
prevent identification. Thus, for instance, a mortgage on
saw logs will bind the lumber into which they are sawn, but
the mortgagee must prove that such lumber was made oat
of the identical logs mortgaged, (m) and a mortgage of
leather, covers shoes subsequently made from such
leather, (n) A mortgage of " 100,000 feet of white pine saw
logs, now on North Branch, so called Thunder Bay River,"
without further description has been held to be void for
uncertainty ; (o) but if the description identified the
property by its mark it would be sufficient, and, especially
so, if the description provides a means of separating the
mortgaged property from others of a like kind, (p)

Before the passing of 20 Vic. cap. 8, questions would
arise in our courts as to the sufficiency of a description of
goods at common law. So at common law, the schedule

(k) 2 Sand. 74 c. Co. Lit. 286 : Graham v. Grade, 13 Q. B. 548.
(I) HoU v. Carmichael, 2 App. B. 639.
(m) White v. Browne, 12 U. C. Q. B. 477.
(n) Putman v. Cuthing, 10 Gray (Mass.) 334.

(o) Richardson v. Alpena Lumber Co., 40 Mich. 203 : S. C. 8 Cent. L. J.
297.
(p) Merchants Nat. Bank v. McLauehlin, 1 MoCrary, 258.



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SECTION 27. 485

of personal property in these words, "all the horses, mares,
cows, heifers, calves, sheep, lambs, pigs, waggons, buggy,
harness, farming utensils, hay, household furniture, books,
and every other article or thing on or about the south half
of lot 24, in the third concession in the township of
London," was held to contain a sufficient description, (q)
General words are sometimes all that can be employed in
describing property intended to be covered by an instru-
ment under the Act, except a minute list is taken of every
article mortgaged, and then it is necessary that the
location of the property, at the moment of the execution of
the deed, should be defined and ascertained by the instru-
ment itself, and, to ensure accuracy and safety in the
description, the statement should be added, that the articles
etc., are all the goods on the premises, (r)

Thus, a description of the goods assigned as all the
goods, etc., of the assignor, being in and about the ware-
house on T. street, and all his furniture in and about his
dwelling house on W. street, and all bonds and securities
for money, loans, stock, notes, etc., etc., whatsoever and
wheresoever, belonging, due, or owing to him, was held
sufficient to satisfy the statute 20 Vic. cap. 8, sec. 4. («)
Property, such as bonds, bills and accounts, railway stocks
and things of that kind, are not required to have that
particular description necessary under the statute in
regard to other property, (t) An assignment in the form
of "all the assignor's personal property and effects what-
soever, and wheresoever/ ' will be insufficient, these words
being too indefinite ; their use gives no force or meaning

(q) Balkwell v. Beddome, 16 U. C. Q. B. 203.

(r) McCoU v. Wolff, 13 8. C. Can. 130.

(#) Harris v. Commercial Bank, 16 U. C. Q. B. 437.

(t) Harris v. Commercial Bank, 16 U. C. Q. B. 437: Burdett v. Hunt, 25
Me. 419 : Russell v. Wimel, 37 N. Y. 691



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486 BARRON ON MORTGAGE 8, ETC.

to this section whatsoever, (u) When the locality of
property in a mortgage is clearly and sufficiently defined,
then general words describing the goods and chattels
mortgaged are usually sufficient. Thus, a mortgage of
"all the dry goods, boots and shoes, millinery goods, and
gentlemen's furnishing goods, and stock in trade," now in
the possession of the mortgagor, and being in the store
occupied by him, being store number three, of Smith's
Block, on the south side of King street, in the town of

is a good and sufficient description, (r) and a

general description of this kind, where locality is added,
is in no way less effective from the instrument previously
specifically and minutely describing other articles upon
the locus in quo, (w) but though this is a sufficient
description, it only is so, of course, of the goods that were
in the shop at the date of the execution of the instrument,
and such a description might, and most likely would,
occasion a serious difficulty in identifying the property
covered by the mortgage some months later, when,
perhaps, in the meantime, other stock and property were
brought upon the premises to replenish that in the shop
at the time of the execution of the deed ; but in the mean-
time sold and parted with in the ordinary course of
business. It can easily be imagined what difficulty a
bailiff would have in distinguishing between different
quantities of the same kind of goods, only some of which
were covered by a mortgage, but all of which answered to
the description contained therein. Tet it is necessary, in
the event of litigation, for the party setting up the

(u) Harrii v. Commercial Bank, 16 U. C. Q. B. 444 : Howell v. McFarlanf,
16 U. O. Q. B. 469 : Per Contra Brinley v. Spring, 7 Me. 241.

(v) Conklin v. Shelly, 28 N. Y. 360 : Gardner v McEwan, 19 N. Y. 123 :
Re Thirkell, Perrin v. Wood, 21 Gr. 492: Rou v. Conger, 14 V. C. B. 525:
Fraser v. Bank of Toronto, 19 U.C.R. 381: Powell v. Bank of Upper Canada,
11 U. C. C. P. 303.

(w) Harding v. Coburn. 12 Met. (Mass.) 333.



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SECTION 27. 487

mortgage, to establish the fact that those goods in dispute
were in the shop at the time of the execution of the
mortgage, {x) To avoid the risk to a security by way of
mortgage upon stock so described, it is always desirable to
provide for the deed covering stock, brought into the shop
in renewal of that which may be mortgaged, for, unless
the deed so provides, and it clearly appears from the deed
itself, to be the intention to bring within its operation
after acquired property, the deed will not have sucb effect ;
(y) and, even though the deed contain a power to seize
all goods, chattels, and effects, the power will not be
extended to goods not upon the premises at the execution
of the deed, (z) This may be done by the mortgage
including, in addition to the stock upon the premises,
when executed, any and all stock purchased thereafter by
the mortgagor, and which may be in his possession, upon
the said premises, during the existence or continuance of
the security, or any renewal or renewals thereof, (a) or
describing the property as the " live and dead stock,
growing and other crops and other goods, personal chattels
and effects whatsoever, which at any time thereafter should
be in or about the same or any other premises of the
mortgagor, whether brought there in substitution for
renewal of, or in addition to the goods, chattels and effects
assigned, or any of them, or otherwise howsoever during
the time that any money be owing upon the security, (b)
or describing it as "also the stock in trade, goods, chattels
and effects which should or might at any time or times

(x) Ross v. Conger, 14 U. C. Q. B. 625.

(y) Mason v. McDonald, 25 U. C. C. P. 435 : McPherson v. Reynolds, 6
U.C. C. P. 91.

{z) Tapfield v. Hillman, 6 Scott N. R. 967 : 6 Man. & Gr. 245 : 12 L. J.
C. P. 311: Reeve v. Whitmort, 33 L. J. Ch. 63.

(o) Re Thirkell, Perrin v. Wood, 21 Gr. 492 : Stephens v. Pence, 66 Iowa
257.
{b) Clements v. Matthews, L. R. 11 Q. B. D. 80S.



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488 BARRON ON MORTGAGES, ETC.

daring the continuance of the security be brought into the
messuage, warehouse and premises, or be appropriated to
the use thereof, either in addition to or in substitution for
stock in trade, chattels and effects now being therein or
any of them." (c)

It has been made to appear by various descriptions of
after-acquired property that there is a distinction between
substituted property and after-acquired property ; but it is
doubtful if such a contention is tenable, (d)

An instrument describing after-acquired personalty in
the words, " all his present and future personalty," will
only suffice to charge, in favor of the vendee, as between
the parties, all the personal property at the date of the
instrument, but will not operate so as to charge after-
acquired property ; such a description does not confine the
assignment to specific goods, but to undetermined pro-
perty, (e) And though after-acquired property is properly
and specifically described, yet, inasmuch as the assignment
thereof, though absolute in form, amounts to a contract to
assign, for the breach of which the assignor incurs a liabil-
ity provable in bankruptcy, and from which he is released
by his discharge, such description will not cover goods
brought on the premises after the discharge in bankruptcy
has been granted. (/)

On the other hand a description as follows : " The party
of the first part doth assign unto the party of the second
part all his right and claim to the goods and stock in trade
in the store of the said party of the first part, to an amount
sufficient to reimburse the said party of the second part,
whatever he may pay in consequence of becoming such
surety as aforesaid, and should there not be stock enough

(c) Lazarus v. Andrade, 5 C. P. D. 318.

(<Q Per Crowder, J., Chidell v. Galtworthy, 6 C. B. N. 8., p. 477.
(e) Re Count D'Epineuil, Tudman v. DEpineuil, 20 Ch. D. 758.
If) CoUyer y. I$aaet t 19 Ch. D. 342.



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SECTION 27. 489

for that purpose in the store -at such time, the balance,
after deducting the value of the said stock, shall be made
up of the book debts then on the books of the party of
the first part/' is not sufficiently comprehensive to cover
the substituted, renewed or added stock in trade, (g)

At common law an assignment is not good, so far as it
professes to convey after acquired property ; it can only
operate upon such property as is in existence, and
which is the grantor's at the time of the assignment, or in
which he bad some interest, unless, however, the grantor
ratify the sale of the " after-acquired property " by some
act, done by him after the property is acquired by him :
and an assignee acquires no valid title by such instrument
to such property when there is no novus actus, (h)
Nothing at common law can be mortgaged but that which
is in esse ; and a man cannot give away that which be
hath not, qui non habet, tile non dat. (i) When therefore,
sales are made in the ordinary course of trade, " the stock
is replenished and deficiencies supplied ; the stock bought
from the proceeds of the mortgaged property is not liable
to the mortgagee's claim." (j) We have seen, however,
that an assignment of after-acquired property is good, and
" that where goods are of a nature to be used along with,
or in substitution for goods actually in existence, and
the subject of a mortgage, then such after-acquired pro-
perty can be subject to a mortgage." (k)

It is not sufficient to state merely the street, upon which
the stock in trade mortgaged happens to be, without saying

iff) Kitching v. Hicks, 20 C. L. J. 112.

{h) Lunn v. Thornton, 1 C. B. 379.

(t) Lunn v. Thornton, 1 C. B. 379 : Short v. Ruttan, 12 U. C. Q. B. 79 :
Cumming$ ▼. Morgan, 12 U. C. Q. B. 665 : Congreve v. EverU, 10 Exch.
307: Mogg v. Baker, 3 M. <fc W. 195 : Gale v. Burnell, 7 Q. B. 850 : Otis v.
Sill, 8 Barb. 102 : Yates v. Olmsted, 65 Barb. 43.

(j) Herman on Mortgages 91 : Anderson v. Howard, 49 Ga. 313.

(*) Per Blake, V.C., Re Thirkell, Perrin v. Wood, 21 Gr. 609 : see Hol-
royd y. Marshall, supra, and other oases there cited.



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490 BARRON ON MORTGAGES, ETC.

that it was in the shop or on the premises of the assignor
situate upon that street. (I)

The word stock is a convertible term. It is the capital
or property of a merchant, tradesman, or company invested
in any business including merchandise, money and credits,
(m) and it may mean the stock of a grocer or dry goods
merchant, or a boot and shoe merchant, and therefore a
description such as, " the stock-in-trade of the mortgagor,

situate at " is not sufficient, and especially is it not

sufficient without mention of locality at all.

When the mortgagor is described in the premises of the
the deed as being of the occupation of merchant, the
nature or kind of the stock cannot be ascertained, for the
word merchant is as convertible as the word stock, (n)
But, when the nature of the trade or occupation of the
grantor is definitely ascertained in the premises to the
deed, it will then be assumed that " the stock-in-trade of the
grantor, situate at " is of that description correspond-
ing with the occupation, of which the grantor is described.
Where, for instance, the mortgagor is described as a drug-
gist, and the instrument describes the property simply as

" the stock-in-trade of the mortgagor, situate at " etc.,

the court will assume that the property mortgaged is a
stock of drugs, chemicals, and other goods, such as a drug-
gist usually has to sell.

Where the description was, " also the following goods and
articles, being in the store of the party of the first part, on
the corner of Queen and May streets, in the said town of
Brampton, that is to say, eighty-five gallons of vinegar,"
giving a long list, and also the following goods, being of
the stock-in-trade of the party of the first part, taken in
the month of April last, that is to say, sixteen pieces of

(/) WiUon v. Kerr, 17 U. C. R. 168.
(m) Worcester Dictionary.
(n) Wilson v. Kerr, 17 U. C. R. 168 : Nolan v. Donnelly, 4 O. R. 440.



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SECTION -27. 491

tweed, it was held that all (be goods were sufficiently
described, for tbe last parcel of goods might be taken as
described to be in the store; (o) and where schedule D
was headed " household furniture, and property of J. B.
McD." and the several apartments containing the furniture
were specified, it was held sufficient, as it might be assumed
to refer to the party's residence, (p)

But a description such as the following: "all and sing-
ular, the personal estate and effects, stock-in-trade, goods,
chattels, rights and credits, fixtures, book debts, etc., and
all other the personal estate and effects whatsoever and
wheresoever, and whether upon the premises where said
defendant's business is carried on, or elsewhere, and
which the said debtors are possessed of or entitled to in
any way whatsoever, including among other things, all the
stock-in-trade goods and chattels which they now have in



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