severally be authorized and empowered to use the forms of bills of lading and other traffic forms filed with the Board until the Board should otherwise thereafter order and determine.

At the date of this publication, the Board has made no general regulation describing the extent to which a railway company may limit its liability for damages, which have occurred through the negligence of its servants or agents.

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บ. CAN. PAC. RY. Co.

Interpleader issue-Chattel mortgage-Hire receipt-48 Vict., ch. 26, sec. 2 (Ont.)-13 Eliz., ch. 5-Clarkson v. Sterling (15 A.R. 230) distinguished.

B. sells to P. on time, a quantity of machinery, and the agreement of sale contains a provision by which P. agrees to give B. a hire receipt or a chattel mortgage as security. A few days after L. had brought an action against P. for the price of goods sold and delivered, P. gives B. a chattel mortgage.

Held, that the mortgage in question was given with intent to delay, hinder and defraud creditors, and was void.

Held, per Taschereau J., approving the judgment of Hagarty C.J.O., that the equitable doctrine under which the mortgage was upheld in Clarkson v. Sterling (15 Ont. App. R. 234), did not apply, first, because there was no absolute contract to give a chattel mortgage-the contract was alternative, either a hire receipt, or a chattel mortgage; and, secondly, the mortgage given was not that contracted for but included additional goods.

APPEAL from a judgment of the Court of Appeal for Ontario, dismissing with costs, the court being equally divided, an appeal by the claimant and plaintiff from a judgment of the Queen's Bench Division of the High Court of Justice for Ontario, which set aside the verdict and judgment entered thereon at the trial in favour of the plaintiff, and ordered that judgment be entered for the defendant.

The plaintiff, Brown, who was a wholesale manufacturer and dealer in boots and shoes, etc., on the 6th February,

*PRESENT:-Sir W. J. Ritchie, C.J., and Fournier, Taschereau and Gwynne, JJ.

A

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1886, sold to one Paquette (the execution debtor) his plant, consisting of an engine, boiler, shafting and certain shoe- BROWN making machinery, described in the agreement for sale, LAMONTAGNE at the price of $3,379.08. The agreement for purchase signed by the execution debtor contained an agreement on his part to give Brown a hire receipt or chattel mortgage as a security for payment of the purchase money. chattel mortgage was given after the defendant Lamontagne had issued and served his writ against Paquette, which recited that the mortgagor had purchased from the mortgagee the goods and chattels mentioned in the schedule annexed, and that it was part of such purchase that the mortgagor should give the mortgagee a chattel mortgage to secure payment of the purchase money. The mortgage proceeded to grant to the mortgagee the plant and machinery, and also all the stock in trade upon the premises, and all stock, goods and chattels which might be purchased thereafter by the mortgagor, and which might be in his possession and upon the premises at any time during the continuance of the security.

The action was tried before Galt J., who gave the following judgment (unreported):

I find a verdict in favour of the claimant as regards the different articles set forth in the statement of claim beginning at the first and including the two gaiter trees, on the ground that the articles were sold by the claimant to the mortgagor on condition that a chattel mortgage should be given.

I find a verdict in favour of the defendant as regards all the other articles mentioned in the statement of claim on the ground that it was a fraud on the creditors of the mortgagor to include them in the said mortgage. So far as I have control over the costs, I direct there shall be no costs, as both parties have to a certain extent been successful. I direct judgment as regards the articles mentioned in the statement of claim in accordance with the above findings.

4th January, 1887.

Upon appeal to the Queen's Bench Division, this verdict and judgment was set aside and a verdict and judgment directed to be entered for the defendant. The judg

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ment of the Divisional Court, delivered by Armour J., was as follows (unreported):

ARMOUR J.-This was an interpleader issue directed to try whether certain goods at the time of the seizure thereof in execution by the sheriff of the county of Carleton under a writ of fieri facias, tested the first day of September, 1886, and issued out of the Common Pleas Division of the High Court of Justice, directed to the said sheriff for the having of execution of a judgment recovered in the said last mentioned court by the said Lamontagne in an action at his suit against Henry Paquette, were liable to such seizure under the said writ as against the claim of the said Brown.

It was tried by Galt J., at the last sittings of this court at Ottawa.

It appeared that the plaintiff claimed the goods in question under and by virtue of a chattel mortgage, dated the 20th day of August, 1886, and made between one Henry Paquette, of the city of Ottawa, boot and shoe merchant, therein called the mortgagor of the first part, and the plaintiff, therein called the mortgagee of the second part, whereby, after reciting that the mortgagor had purchased from the mortgagee the goods and chattels mentioned and set forth in the schedule thereunto annexed, and that it was part of such purchase, that the mortgagor should give to the mortgagee a chattel mortgage to secure payment of the purchase money, and that there was then due by the mortgagor to the mortgagee, on account of said purchase money, the sum of $3,359, the said mortgagor in consideration of the said sum and $1, then paid, conveyed to the said mortgagee all the goods and chattels mentioned and set forth in said schedule, and also all the stock in trade consisting of boots, shoes, moccasins, mitts, trunks, valises, rubbers, leather and boot and shoe findings, and, in fact, everything then in stock and then held by the mortgagor and in his possession, and upon the boot and shoe factory and premises then occupied by the mortgagor, and also any stock, goods and chattels purchased thereafter by the mortgagor and which might be in his possession in or upon the said boot and shoe factory and premises at any time during the continuance of the mortgage, or any renewals thereof, which said mortgage contained therein a proviso for making the same void upon payment of $3,360, without interest, as follows: that is to say, in forty-eight consecutive equal monthly payments of seventy dollars each, the first of such monthly payments of seventy dollars to become due and be paid on the first day of September, 1886, and it was by the said mortgage provided, and thereby agreed, that, in the event of default of payment of any of the said instalments of principal thereby secured, or any part ther of, the whol principal money should become due and payable, and, also, that if any attempted sale or disposal or removal of the said goods and chattels, or any

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part thereof, was made, then, and in such case, the whole principal money should immediately become due and payable. It also appeared that on the 10th of June, 1886, the said Henry Paquette had agreed to purchase the goods and chattels mentioned and set forth LAMONTAGNE in the said schedule from the plaintiff by the following writing:

"I hereby agree to purchase the above machinery, tools and fixtures now in factory lately occupied by Isaie Dazé, and now owned by W. E. Brown. I agree to pay for same the sum of $3,120.08 and to pay for same in monthly instalments to extend over a period of forty-eight months without interest, and I agree to keep said machinery insured payable, if any loss to W. E. Brown, and I also agree to give said Brown a hire receipt or chattel mortgage as security for payment of said goods."

(Sgd.) H. PAQUETTE.

Upon this agreement being made the plaintiff delivered the goods so agreed to be purchased to Paquette, and he continued in possession of them until the seizure by the sheriff. The plaintiff swore as follows in his direct examination:

"Q.-Now under what circumstances did you allow him to take possession? A.-Upon the understanding that the goods were to remain mine until he gave security.

"Q. Did you ever part with this property until you got this chattel mortgage? A.-No.

"Q.-It was part of the same transaction your getting the chattel mortgage and the sale of the goods? A. Yes.

"Q.-Would you have let him have your goods at all unless he gave you a chattel mortgage or hire receipt? A.-No."

And in his cross-examination:

"Q.-Is it not a fact that Paquette at the time of the purchase and up to the month of August invariably refused to give a chattel mortgage whenever you asked him for it? A.—No, I don't think he invariably refused. I told him I wanted the hire receipt and he said he thought he would give a chattel mortgage.

"Q.-When was that? A.-Sometime in the month of July, probably.

"Q.-Might it not have been in August? A.— It might. "Q.-Didn't you ask Paquette for this chattel mortgage all along the months of July and August? A.-I asked him several times. "Q.-What did he say when you asked him? A.-Said he would not sign just now.

"Q.-What reason did he give for not signing? A.-That it would hurt his credit.

"Q.-Did you know that Paquette had purchased these goods from Lamontagne? A.-I did not know.

"Q.-You never knew it? You did not know that Paquette had 3-SUP. CT. CAS.

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