OSLER for securing the mortgagee against the endorsement of Judgment. bills or notes or any other liability by him incurred for the mortgagor. In the former the affidavit of bona fides, besides the other particulars common to similar affidavits, must state that the mortgage sets forth truly the agreement and the extent of the liability to be incurred thereunder and was executed in good faith and for the express purpose of securing to the mortgagee repayment of his advances, while in the other, in addition to the common averments, the affidavit must state that the mortgage was executed for the express purpose of securing the mortgagee against payment of the amount of his liability for the mortgagor, such liability being in some way referred to or identified by the affidavit. Now the chattel mortgage in question recites that the mortgagee at the request of the mortgagor hath endorsed certain promissory notes of the mortgagor for $1,400 which are in the words and figures following, setting out two notes in full, one for $1,000 and the other for $400, upon the agreement that the mortgagor should execute and deliver the mortgage as security to the mortgagee against his endorsement of the said "note" or any renewal thereof, etc., and against any loss that might be sustained by him by reason of such endorsement of "said note." The mortgagee's affidavit states that the mortgage truly sets forth" the agreement entered into between myself and George Baragar the mortgagor therein named,"-that being, not an agreement for future advances but an agreement to give the mortgage for the purpose described therein,— "and truly states the extent of the liability intended to be created by such agreement and covered by such mortgage; "an averment which is only appropriate in the case of a mortgage to secure future advances under a written agreement to make them, but which in its present connection is confused and contradictory, for, while the liability intended to be created by the recited agreement can in terms only mean the mortgagor's liability to give the mortgage in pursuance of it the OSLER Judgment. remainder of the sentence seems to allude to the liability assumed by the mortgagee for the mortgagor, that being what was intended to be secured by the mortgage. The affidavit then proceeds "and that the same was executed in good faith, and" (here we arrive at the averment peculiar and essential to the affidavit in a case of this kind) "for the express purpose of securing me the said mortgagee therein named against his endorsement of a promissory notes for (sic) or any renewal of the said recited promissory notes," etc., etc. Assuming that if there were no other mistake in this clause we might read "my endorsement" instead of "his endorsement," treating the latter as what it evidently is, a mere clerical error; (see Hollingsworth v. White, 10 W. R. 619), yet even making that correction the clause remains vague and incomplete, averring and identifying nothing certain in itself or made so by reference to anything else. Every reasonable intendment should be made in support of an instrument, the bona fides of which is not impeached, but we must be careful not to fritter away or nullify the statute in essentials. The cases of Mason v. Thomas, 23 U. C. R. 305, Harding v. Knowlson, 17 U. C. R. 564; and Boulton v. Smith, 17 U. C. R. 400, in Appeal, 18 U. C. R. 458, illustrate the strictness with which parties are held to what I may call a formula where the Act has given one. Less is required where the language of the Act is merely, as here, descriptive of the fact to be deposed to, but clearly the language of the deponent must be the equivalent of that of the Act. This was decided in O'Donohoe v. Wilson, 42 U. C. R. 329, which was relied upon in the Court below and by the respondent. That case is, in my opinion, well decided, but there is no room for comparison between the language of the affidavits in the two cases. There the mortgagee stated that I endorsed the promissory note in the said mortgage mentioned. That the said mortgage was executed in good faith and for the express purpose of securing payment of the said note and security and indemnity to me J.A. against the said endorsement and any loss thereby." In Judgment. this language, as Harrison, C. J., says, we have all that the statute intended in words more numerous than necessary for the purposes of the statute. As we are compelled for these reasons to hold the mortgage of the 9th of April invalid against the execution creditor the plaintiff falls back upon his earlier mortgage of the 30th of January, 1889, in the affidavit of bona fides of which no fault is to be found. This mortgage was proved and relied upon at the trial without objection, and the learned Judge has held that the plaintiff may recover under it. I am not therefore at this stage of the case disposed to consider very curiously whether it was open to him under the form of the issue to set up a title under both mortgages together or in the alternative, and no objection on this ground is taken in the reasons of appeal. The mortgage of the 30th of April provides that it shall extend to renewals of the notes mentioned there which may be endorsed by the mortgagee, so long as the renewal does not extend the time of payment beyond a year from the date of the mortgage, and if the $1,000 note had been made payable within the year from the 30th of January, 1889, instead of on the 12th of March, 1890, it would probably have been unnecessary to take a new mortgage as the renewal of the $400 note falls due on the 3rd of September, 1889. The question then is whether, having accepted the mortgage of the 9th of April, which covers both notes, and having set up title and claimed under it, the mortgagee can also in the alternative rely upon his mortgage of the 30th of January so far as it is a security for the $400 note, the renewal of which falls due within a year from its date. There are several English cases which at the first blush appear opposed to the right of the mortgagee to rely on both mortgages and to lay it down that, by taking the second, the mortgagee cancels the first. It cannot be doubted that a second mortgage may be given to another mortgagee or to the first mortgagee for a different debt or 34-VOL. XVII. A.R. OSLER Judgment. to secure a different liability from that mentioned in the first mortgage, and that such second mortgage will be a perfectly valid security in the hands of the holder notwithstanding the fact that the absolute property in the goods appears to have been assigned by the first. See for example the recent case of Usher v. Martin, 24 Q. B. D. 272, and it is not easy to see why upon principle it should be otherwise in the case of a second mortgage to the same mortgagee even for the same debt or liability, especially where the latter assumes a different form, as for instance renewal notes. It is, I think, always a question of intention, and if the second mortgage in a case like the present, had been expressed to be collateral to the first, it cannot be doubted that both would stand for what they were worth. The English cases I allude to are Smale v. Burr, L. R. 8 C. P. 64, and Ramsden v. Lupton, L. R. 9 Q. B. 17, and the cases cited therein. They arose out of that provision of the Bills of Sale Act which required that a bill of sale should be registered within 21 days after the execution, and otherwise should be void against execution creditors of the grantors. To avoid the disclosure of their affairs which would be caused by registration people dealing in bills of sale devised a method of evading the statute by taking a new bill just before it would have become necessary to register the first, and so on from time to time until in some cases the 15th or 16th of the series had been reached before the crisis came in the affairs of the grantor, necessitating the registration of the last bill, which was then set up against the execution creditor. The latter contended that the first was the only and real bill of sale, that the grantor had parted with all his title to the property by it, and so, that there was nothing upon which the subsequent bills could operate. The Courts held that the transaction having been entered into in good faith the case was not hit by the statute; that the consideration for the first bill supported the last, and as the last was intended to be the only and real bill and was necessarily the only one which OSLER could be of any use or valid against creditors the infer- Judgment. ence was that it had been taken in substitution for the one immediately preceding it and the true legal construction to be placed upon the facts was that the giving of the subsequent bill had the effect of cancelling the former one in point of law. Other reasons for upholding the last bill were also suggested, such as that at all events the grantee had a title by estoppel under it against the grantor; that the execution of the subsequent bills of sale was but the exercise of the right of redemption, etc., etc. These decisions do not in my opinion govern the present case, which presents an entirely different aspect and in which the question is not whether the last bill is the only valid one but whether if it turns out to be invalid the grantee can resort to the first, or can rely upon both or either of them. In those cases the grantee was out of court unless he satisfied the tribunal that the last bill had been taken in substitution of the former, and the course of dealing between the parties and the object they had in view shewed that it had been so taken. Here the grantee merely invokes the application of a legal principle and asks the Court to say whether in point of law, where nothing is said upon the subject, or where the contrary is expressly stipulated or intended, the result of taking a second security between the parties of the same kind, upon the same property, and for the same debt, is that the former is cancelled. I think that is not the legal result for the reasons I have already given. That a chattel mortgage is not extinguished by a second mortgage on the same property to secure the debt mentioned in the first, the following American cases shew, and based as they are upon principles derived from English authority, I think we may safely follow them: Gregory v. Thomas, 20 Wend. 17; Hill v. Beebe, 13 N. Y. 556. I may also refer to Preston v. Perton, Cro. Eliz. 817; Burdett v. Clay, 8 B. Monroe, 287; Burnhisel v. Firman, 22 Wall. 170; Herman on Chattel Mortgages, sec. 126, et seq. A different opinion seems to have been incidentally expressed in McMartin v. Mc |