the Revised Act "for the prevention of frauds on Creditors by secret bills of sale" (16) as amended in 1886 and 1893 (17), but in a form since considerably changed. The Bills of Sale Act 1899 (18) applies to all hirings, leases or bargains for selling personal chattels whereby it is agreed (a) that the property in the personal chattels, or (b) in case of a bargain for sale, a lien thereon for the price thereof or any portion thereof shall remain in the person letting to hire, the lessor or bargainor until the payment in full of the hire, rental or price agreed upon by future payments or otherwise, if the hiring, lease or bargain is accompanied by an immediate delivery and is followed by an actual and continued. change of possession (19). The instrument must set forth fully by recital or otherwise, the terms, nature and effect of the bargain and the property or lien' remaining in the bargainor and the amount payable thereunder, whether expressed as hire, rent, price or otherwise (20). The section does not apply to a simple bargain for hiring under which the lessee in no event can obtain the property and ownership of the chattels hired, as the statute implies that the hiring referred to is one in which the right of property is reserved only until the payment in full of the hire or rental (21). And the statute does not apply if the hire agreement instead of stipulating for a right of the hirer to become the owner of the particular chattel hired, provides that on completion of the payments mentioned in the con (16) R.S. N.S. 5th-series 1884, c. 92. (17) N.S. Laws 1886, c. 32, s. 1; N.S. Laws 1893, c. 40, s. I. (18) N.S. Laws 1899, c. 28, in force only from date of proclamation in the Royal Gazette. (19) N.S. Laws 1889, c. 28, s. 8 (1). (20) N.S. Laws 1899, c. 28, s. 8 (2). tract, the hirer shall receive a chattel of the same kind equal in value thereto (22). The conditional sale contract must be signed by both the bargainor and the bargainee, and if executed by an agent on behalf of either of them the agent's authority must be in writing and a copy attached to the contract (23). In order to complete the security by having the contract filed in the land registry, it must be accompanied by the affidavit of either of the parties thereto, stating: (a) That such instrument sets for the terms, nature and effect of such hiring, lease or bargain for sale, and the property or lien remaining in the person letting to hire, the lessor or bargainor, and the amount payable thereunder ; (b) that such instrument is executed in good faith and for the express purpose of securing to the person letting to hire, the lessor, or the bargainor the payment at the time and under the terms set out in the instrument, of the amount payable thereunder (24). The form of the affidavit should be in strict compliance with the statute, and the language of the affidavit should follow the language of the statute (25). The affidavit of an agent or attorney of one of the contracting parties is proper only in case the contract itself was signed by such agent for his principal, and in case a copy of the agent's written authority to do so is attached thereto; and then the affidavit must also include a statement that the agent or attorney making the same has a personal knowledge of the matters (22) Guest v. Diack, (1897) 33 C.L.J. 497. (23) N.S. Laws 1899, c. 28, s. 8. (24) N.S. Laws 1899. c. 28, s. 8 (3). (25) Reid v. Creighton, 24 Can. S.C.R. 69, 31 C.L.J. 274; Thomas v. Kelly, 13 App. Cas. 506. deposed to" (26). The expression "personal chattels" is declared by the Act to mean goods, furniture, fixtures and other articles capable of complete transfer by delivery, and shall not include chattel interests in real estate, nor shares nor interests in the stock, funds or securities of any government, nor in the capital or property of any incorporated or joint stock company, nor choses in action (27); and in this connection the term "fixtures" refers only to such articles as are not made a permanent portion of the land, and of which delivery may be made as chattels without the commission of a tortious act to separate them from the freehold (28). The words "accompanied by an immediate delivery and followed by an actual and continued change of possession" which are here applied to the hiring, lease or bargain for the sale of personal chattels, are also used in the Ontario Chattel Mortgage Act in respect of mortgages and sales of chattels, but under the last mentioned statute, registration is required in the correlative case of a sale or mortgage not accompanied by an immediate delivery and followed by an actual and continued change of possession (29). The term has had a statutory definition in Ontario since 1894 so far as relates to bills of sale and chattel mortgages, i.e. such change of possession as is open and reasonably sufficient to afford public notice thereof (30), a definition which is wider than the interpretation. which was theretofore given to it. But a reference to the prior decisions under that statute will be of value in determining the exact meaning and limitations of (26) N.S. Laws 1899, c. 28, s. 11 (2). (27) N.S. Laws 1899, c. 28, s. 2. (28) Warner v. Don, 26 Can. S.C.R. 388. (29) R.S.O. 1897, c. 148, s. 2 and 6. (30) R.S.O. 1897, c. 148, s. 39. the phraseology used in the Nova Scotia Act. The underlying principle of both statutes is the same, i.e. that where the owner of chattels places another person in possession of the same and allows the latter to use them as his own to all appearances, the person so entrusted will be considered the owner thereof so far as is necessary for the protection of his creditors, or of purchasers or mortgagees of the article from him, unless the real owner gives notice of his claim in such a manner that the prospective creditor or mortgagee may ascertain the particulars of it by searching the public records. In order to determine whether or not the delivery is an immediate' one and whether the change of possession is 'actual and continued' within the meaning of the statute the nature of the goods and their locality and the kind of delivery of which they are capable are to be considered (31). The actual change of possession need not be a transfer of possession to the condition vendee in person, nor to his agent acting for him in the negotiation of the conditional sale, but may be to a bailee or carrier for such vendee (32). A sale of household furniture by a married woman to her husband residing with her in the house in which the furniture was situate and in use, was held to be a sale not accompanied by an actual and continued change of possession (33); and it would therefore seem that a conditional sale under like circumstances would not be within the Nova Scotia Act, and would be valid without registration, and it would not even be necessary that it should be evidenced in writing. There is an (31) McMaster v. Garland, 8 Ont. App. 1. (32) McMaster v. Garland, 31 U.C.C.P. 329, 8 Ont. App. 1; McPartland v. Read, 11 Allen (Mass.) 231; Wheeler v. Nicols, 32 Me. 233. (33) Hogaboom v. Graydon, 26 Ont. R. 298, 31 C.L.J. 100. actual and continued change of possession on a sale of goods in a shop if the parties check over the goods, and the vendor delivers the key to the buyer and the goods are kept locked up in the building, and it is not necessary that the goods should be removed or that the buyer should remain in physical possession by himself or someone on his behalf (34) There must be something more than a symbolical delivery or its equivalent, and a marking of the goods with the transferee's mark will not constitute it (35); and if the goods are separated from other goods of the same kind on the vendor's premises, and marked with the purchaser's mark the change of possession is not actual or continued so long as the vendor remains in possession. of the premises (36). If the statutory requirement as to filing be not complied with, the agreement that the property in the goods or that a lien thereon shall remain in the bailor or bargainor becomes null and void by virtue of the statute as against (a) The creditors of the hirer, lessee, or bargainee (37); (b) Bona fide purchasers from the hirer, lessee, or bargainee (38); (c) Mortgagees of the hirer, lessee or bargainee (39). The operation of the statute is upon the validity of the contract rather than upon the remedy for its (34) Kerr v. Can. Bk. of Commerce, 4 Ont. R. 652; McMartin v. Moore, 57 U.C.C.P. 397. (35) Short v. Ruttan, 12 U.C.R. 79. (36) Doyle v. Lasher, 16 U.C.C. P. 263. (37) N.S. Laws 1899, c. 28, s. 8 (4). (38) Secs. 2 and 8 (4). (39) Sec. 8 (4). |