protecting the goods and chattels mentioned in the said bill of sale by way of mortgage against the creditors of the said the mortgagor therein named, or of preventing the creditors of such mortgagor from obtaining payment of any claim against

By an indenture of November 2nd, 1881, registered November 9th, 1881, Foster conveyed the said lands in Yorkville to the defendant J. B. Boustead for $2,800, subject to the mortgage for $1,600, and his wife, M. S. Foster, joined in the conveyance. On November 4th, 1881, the defendant Wickson commenced an action in the Common Pleas against Foster by writ dated that day, and on the same day the writ was served, appearance entered, a statement of claim for a sum of $1,429.75, and a statement of defence thereto, delivered, an order obtained in Chambers by consent striking out the said defence, and for leave to enter judgment, judgment entered up, and writs of fi. fa. against the goods and chattels of Foster placed at once in the hands of the sheriff of the county of York. On November 9th, 1881, the plaintiff, J. Davis, brought an action in the County Court of the said county against Foster, and on November 22nd following entered judgment by default of appearance for $278.80, and on November 29th following, placed writs of fi. fa. in the said sheriff's hands against the goods and lands of Foster, which writs at the time of the present action were still in full force and unsatisfied. On November 9, 1881, the goods and chattels comprised in the chattel mortgage of October 24, 1881, were sold by auction, and the defendant Boustead became the purchaser of the whole. Boustead at once paid the purchase money to the auctioneers. The sheriff, thereupon, notified the auctioneers of the writs in his hands in the suit of Wickson v. Foster, and the next day, November 10, the auctioneers paid the money over to the sheriff, and the sheriff paid it over to Wickson.

In his statement of claim, the plaintiff, Davis, stated the several instruments and proceedings above mentioned, and alleged that Foster was not indebted to Wickson for the

amount of the judgment for $1,429.75 obtained as aforesaid in the Court of Common Pleas that Foster was before the making of the two mortgages aforesaid of October 24, 1881, and at the time of the present action, insolvent and indebted to the plaintiff for the debt for which he (Davis) recovered judgment against him, as aforesaid, in the County Court, and was then and at the time of the present action indebted to several other persons that neither at the time of making the said chattel mortgage of October 24, 1881, and the said conveyance of lands of November 2, 1881, nor at the time of the recovery of the said judgment against him by Wickson, nor at any other subsequent time, had Foster any other property, real or personal, except the goods and chattels in the said chattel mortgage comprised, and the lands so conveyed, out of which he, the plaintiff, could realise his said judgment: that the chattei mortgage, the judgment and execution of Wickson, the conveyance of November 2, 1881, and sale by auction of November 9, 1881, and the subsequent seizure of the purchase money by the sheriff under Wickson's fi. fa. were all fraudulent and collusive, for the purpose of defrauding the creditors of Foster, and intended to give Wickson a fraudulent preference. And the plaintiff claimed that the said chattel mortgage, the conveyance of November 2nd, 1881, the judgment in Wickson v. Foster, and the fi. fu. issued thereon might be declared fraudulent and void, and set aside: that an account might be taken of the moneys received by Wickson under the f. fa. in his said action, and otherwise received in respect of the matters in question, and that Wickson might be ordered to pay the same over to the plaintiff.

To this statement of claim the defendants Wickson and Boustead delivered a joint statement of defence. In this they denied the fraud and collusion charged by the plaintiff, and also asserted that Foster made the mortgages to Wickson not voluntarily, but as the result of pressure and threats of criminal proceedings; for that Wickson was treasurer of certain trust funds of a certain public body,

called the Methodist Church of Canada, Bloor Street, Yorkville, and at the time of giving the said mortgages Foster had collected moneys belonging to the said trust funds, but had failed to pay the same over to Wickson. They also alleged that on receiving the proceeds of the auction sale of November 9, 1881, and before the commencement of the present action, and before the recovery by Davis of any judgment against Foster, Wickson paid over the moneys thus realised from his securities, and had since had no control over them.

The defendant Foster put in no defence to the action. The remaining circumstances of the case and evidence sufficiently appear from the judgment.

The case was heard at the Spring Sittings at Toronto, on May 12, 1882.

R. Wardrop, for the plaintiff, cited Barron on Bills of Sale, p. 145; re Andrews, 2 App. 24, 25, and 28; Morrow v. Rorke, 39 U. C. R. 500; Nisbet v. Cock, 4 App. R. 200; Dalglish v. McCarthy, 19 Gr. 578; Mc Edie v. Watt, 17 C. L. J. 473.

Blake, Q. C., (Thomson with him), for defendant Wickson. Where goods have been reduced into possession by the mortgagee, defects in the mortgage cannot be attacked by a subsequent mortgagee; Taylor v. The Commercial Bank, 4 C. P. 447: possession was taken by the mortgagee when the funds were handed over to him; Watson v. Henderson, 25 C. P. 562: the plaintiff has no right to apply after the money has been received under the judgment; the Court has no power to recall the money: R. S. O. ch. 118, sec. 1; there is no right of action against Wickson, for he received the money for the trustees, and paid it over to them before the commencement of this suit; the plaintiff should attack the goods by seizure if he alleges the first mortgage was invalid. The judgment can only be attacked under R. S. O. ch. 118, and there must be an intent to prefer” under that Act.

They also cited Nelles v. Paul, 4 App. R. 1; Clemmow v.

Converse, 16 Gr. 547; Totten v. Douglas, 15 Gr. 126; Labatt v. Bixel, 28 Gr. 593. King v. Duncan, 29 Gr. 113; Lewin on Trusts, 7th ed., p. 501; White v. Brown, 12 U. C. R. 477; Brodie v. Ruttan, 16 U. C. R. 207; Fitch v. Machel, per Osler, J.. (Chy. D.,) Nov. 11, 1881.

J. M. Reeve, for the defendant Boustead. The plaintiff' had no right to call Boustead before the Court. He is merely a creditor who has been paid his money.

Wardrop, in reply. The dealings of Boustead were suspicious, and he should not get his costs: Moore v. Davis, 16 Gr. 224. As to possession, there was no change of it whatever; Barron on Bills of Sale, p. 116. Wickson had no authority to bring the action he brought against Foster; 35 Vic. ch. 107, Ont. secs. 10, 11. He also referred to Wilson v. Wilson, 2 P. R. 374.

May 31, 1882. BOYD, C.-At the conclusion of the case I held that the transaction in both its branches as to the real and personal security was not impeachable under either 13 Eliz. ch. 5, or the R. S. O. ch. 118. But I reserved judgment on the point raised in argument, though not ou the pleadings, that the chattel mortgage was invalid because of the omission of the word "him" at the conclusion of the affidavit of bona fides, so that in view of all the facts I might consider the rights of the parties to this litigation. The effect of this omission would be to destroy the security as against an execution creditor, who seized while the goods remained in statu quo; but it would not impair the instrument as between the parties. But in this case both mortgagor and mortgagee agree upon a sale of the goods. at public auction before the plaintiff intervenes with his execution, and the effect of that sale is to pass the property and the possession of the goods to the purchaser Boustead. The plaintiff does not seek to follow the goods into the hands of Boustead, which would be his only remedy, probably because Boustead has again sold to bond fide purchasers, which would effectually extinguish all rights of the plaintiff to the goods. Such would be the

case even if actual fraud were made out as set forth in the bill; a fortiori would it be the case where fraud is disproved, and the possibility of losing the security arose from a clerical error in the affidavit required by the Chattel Mortgage Act.

It becomes unnecessary to express any opinion upon the validity of the judgment recovered by Wickson against Foster, because, like the chattel mortgage, that was good between the parties, and the money was made thereunder by the sheriff and paid over to the plaintiff, and by him to the Board of Trustees, before the plaintiff attacked his locus standi. For the purpose of costs I have somewhat considered the question, and after reading the cases of Holbird v. Anderson, 5 T. R. 235 (which would now be a case unquestionably of improper preference) Feehan v. Lee, 10 C. P. 385, and Labatt v. Bixel, 28 Gr. 593, I do not think that the plaintiff could at any time have successfully attacked this prior judgment. See also Heaman v. Seale, 2 C. L. T. 44, to which my brother Proudfoot referred me after I had arrived at the same result.

The relief sought by the bill is such as I find no authority for granting. it is sought to make Wickson account for the proceeds of the securities impeached as fraudulent; it being admitted that the corpus of the property has passed beyond his control, and it being proved that before litigation he had paid over the money to his principals, who are not before the Court. The redress sought is specifically wrong. The right of the plaintiff in this class of cases is to have any impediment removed or declared invalid which intercepts the action of his writs of execution. So long as the property of his execution debtor remains distinguishable, and so long as no purchaser for value without notice intervenes, so long may the Court award relief against that property in the hands of fraudulent or voluntary holders. But where, as here, the first holder selis the property obtained from the debtor and receives the proceeds in a shape that cannot be earmarked, there is no jurisdiction to go beyond the further remedy which