to make his payment to the mortgagee's assignee, unless the registry of the assignment was such notice. The case is reduced to the question whether such registry is any notice of the assignment of the mortgage debt to the assignee. I think it is not. In order to make it so, it would, I think, require a statutory enactment to that effect. The whole policy, as well as the provisions of the Registry Act, c. 74, C. S. N. B., is confined to the interest in the real estate itself; no doubt the registry of any interest is notice to all parties, so far as it affects any estate in any real estate; and therefore any person acquiring any interest in any real estate, which was affected by an instrument registered, may properly be said to have notice of it; but it is of no consequence to a mortgagor what the mortgagee may have done with the interest in the land conveyed by the mortgage; for no matter who has it, as soon as the mortgage debt is paid he is entitled to get it back; it is the bond that he has to pay, and he is bound to pay that to have it discharged at law; and so in equity, until he has notice that it has been assigned. If a Court of Equity laid down the rule that the debtor is a trustee of the assignee of the debt, without having any notice of the assignment, it would be impossible for a debtor safely to pay his creditor. At law the payment to the assignor discharges the debt, and if sued for it must be sued in the assignor's name; and how can this be done if he has been paid? This point was decided in Williams v. Sorrell (1); which decision, I think, is right and in no way affected by the subsequent decisions. It was argued that inasmuch as Daniel Maher, the assignee of the equity of redemption, mortgaged his estate to the Building Society to pay off the mortgage, and they paid the mortgagee instead of the assignee of the mortgage, the registry was notice to them; and, therefore, their payment would not avail; but I think that the Building Society had nothing to do with the matter. (1) 4 Ves. 389. EQ. CAS.-13 1883. LAWTON V. They paid this money to Howe for Daniel Maher, and whether they had his authority or not, he ratified this act How et al. by repaying them, and I think it must be treated as though Daniel Maher paid it himself, and there is no pretence that he had any notice of the assignment other than the registry, or that it affected the title in the land when he acquired the equity himself. Palmer, J. The bill, therefore, I think, must be dismissed as against all but Howe, and with the usual result of costs. Payments by the mortgagor to the original mortgagee after the assignment of the mortgage, but without notice of it, are binding on the assignee: Coote (4th ed.), 658, citing Williams v. Sorrell, 4 Ves. 389. In Fisher (3rd ed.), 541, it is laid down that it is not necessary in order to complete the title of an assignee of a mortgage, or of a sub-mortgagee, to give notice to the mortgagor of the assignment of the mortgage debt; because the debt is incident to the property which forms the security, and which cannot be taken from the assignee without payment. In a foot note the learned author adds that so long as the mortgagor has no notice, his payments on account of the debt to the original mortgagee will discharge him. See also Engerson v. Smith, 9 Gr. 16; McDonough v. Dougherty, 10 Gr. 42; Wilson v. Kyle, 28 Gr. 104. The recording of the assignment is not notice to the mortgagor: Williams v. Sorrell, supra; Reed v. Marble, 10 Paige (N. Y.) 409; James v. Johnson, 6 Johns. Ch. (N. Y.) 417; James v. Morey, 2 Cow. (N.Y.) 246; New York Life Insurance Co. v. Smith, 2 Barb. Ch. (N.Y.) 82; Trustees of Union College v. Wheeler, 61 N. Y. 88. And see Pierce v. Canada Permanent Loan Co., 25 O. R. 671; 23 A. R. 516. The onus of showing that a solicitor who is in possession of a mortgage and collects the interest has authority also to collect the principal, is upon the mortgagor, and unless this onus is clearly discharged, the mortgagor must bear the loss arising from the solicitor's misappropriation of the funds. In re Tracy, 21 A. R. 454. And see Withington v. Tate, L. R. 4 Ch. 288. The duty of an assignee of a mortgage to ascertain the state of accounts between the mortgagor and mortgagee is described in Bickerton v. Walker, 31 Ch. D. 151. Fry, L.J., there says: "It is said, and said truly, that in the ordinary course of business a prudent assignee of a mortgage, before paying his money, requires either the concurrence of the mortgagor in the assignment, or some information from him as to the state of accounts between mortgagor and mortgagee. The reason of this course of conduct is to be found in the fact that an assignee of a mortgage is affected by all transactions which may have taken place between mortgagor and mortgagee subsequently to the mortgage, and the assignee is bound to give credit for all moneys received by his assignor before he has given notice of the assignment to the mortgagor" NICHOLSON v. BAIRD. 1884. English Bankruptcy Act, 1869 (32 and 33 Vict. c. 71)-Person residing and January 15. domiciled in Canada member of English firm-Title of trustee under Act to real estate situate in Canada and personalty of such a person-Jurisdic tion of English Bankruptcy Court. In 1873 Gilbert, James, Gorham, and Walter Steeves carried on business as partners under the firm name of Steeves Bros. at St. John, New Brunswick. Each of them was born, and had always resided in New Brunswick. In or about 1874 Gilbert Steeves removed to Liverpool, G. B., and commenced a shipping business under the name of Steeves Bros. & Co., the firm being composed of the same members as the St. John house. Prior to 1882 Walter retired from both firms. Gorham and James never resided in England, or ceased to retain their New Brunswick domicile, In 1882 the firm at Liverpool became insolvent, and Gorham and James cabled from St. John to Gilbert to file a bankruptcy petition of the firm under the English Bankruptcy Act, 1869. The petition was filed July 4th, 1882, and the partners were adjudged bankrupts, and the plaintiff was appointed trustee. On June 27th, 1882, James and Gorham executed at St. John an assignment of all their property, both real and personal, in New Brunswick to the defendant for the benefit of their New Bruns wick creditors. This assignment not being recorded, a new assignment was executed and recorded on July 15th. On August 15th the plaintiff recorded in the registry office at St. John a certificate of his appointment. In a suit by the plaintiff for a declaration of histitle to the real and personal property in New Brunswick of James and Gorham Steeves: Held (1), that the English Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), does not apply to Canada so as to vest in a trustee appointed by the English Bankruptcy Court either the real estate situate in Canada or the personal property of a person residing and domiciled in Canada, though he is a member of an English firm which has traded and contracted debts in England, and has author. ized that he be joined in a bankruptcy petition to the Court with the other members of the firm. (2) That the English Bankruptcy Court has no jurisdiction under the Act to make an adjudication of bankruptcy against such a person. The facts of the case are fully stated in the judg ment of the Court. Argument was heard September 13th and 15th, 1883. J. J. Kaye, Q.C., and F. E. Barker, Q.C., for the plaintiff. W. B. Chandler, and G. W. Allen, for the defendant. 1884. January 15. PALMER, J. :— The material facts of this case are as follows: In 1873 Gilbert, James, Gorham, and Walter Steeves car 1884. NICHOLSON v. BAIRD. Palmer, J. ried on a general mercantile business in St. John under the name of Steeves Brothers. They were all born and had always resided in New Brunswick. In 1874 or 1875 Gilbert removed to Liverpool, and carried on a shipping business there under the name of Steeves Bros. & Co., in which Gorham and Walter were partners, but whether James became a partner in that firm is disputed. The business was continued in St. John. This Liverpool house became insolvent in 1882, before which time Walter had retired from both firms; and although this was disputed, I think the effect of what took place is that both Gorham and James by cable authorized Gilbert to file a petition under the English Bankruptcy Act of 1869 for liquidation by arrangement. This petition was filed on the 4th day of July, 1882, and an order was made adjudg ing them bankrupts; neither James nor Gorham going to England, nor being there at the time that any liability was incurred on their behalf, they both being continuously in Canada from 1880 down to the present time. The St. John firm of Steeves Brothers were indebted to a number of creditors in St. John, and on the 27th day of June, 1882, James and Gorham executed an assignment of their property, real and personal, in New Brunswick, to the defendant, as trustee, for such creditors, which was not recorded, and on the 15th day of July they executed another to the same effect, only describing the property more particularly, and this the defendant recorded on the same day. The plaintiff on the 15th day of August recorded in the registry office, St. John, a certificate of his appointment as trustee under the 8th subsection of section 83 of the English Bankruptcy Act, 1869. The plaintiff claims the property in Canada, both real and personal, so attempted to be assigned, and asks me to make a declaration of his right thereto. The defendant denies the plaintiff's right, and asks for a declaration that he is entitled to the property under the assignment. Among the great number of points taken and discussed before me, is the following most important one, and for the first time, as far as I know, raised in Canada: That the adjudication in bankruptcy in England, as against Gorham and James, is of no force in Canada, and ne Bankruptcy Court in England had no jurisdiction over them, and therefore the plaintiff's title fails, and that the only right he would have in Canada would be the share of Gilbert Steeves in the property of the St. John firm, after the payment of its debts. So at the threshold this question is presented: Can a Canadian who was born and has always been domiciled in Canada, and is indebted and has property there, on becoming indebted in England by an agent, without himself being present in England, file a petition in liquidation under the English Bankruptcy Act of 1869 and thereby withdraw out of Canada and have his property in Canada transferred to a person in England, and sent. there to be administered? This is what is claimed in this case. If James and Gorham authorized the filing of the petition, as the plaintiff contends; and if the plaintiff can succeed, it is open for any Canadian born and who has done business here all his life and has all his property here, and owing debts to any extent here, to incur a debt through an agent in England and then authorize such agent to file a petition in liquidation, and in this way withdraw the whole of his assets from Canada, and compel his creditors to seek their rights in foreign Courts three thousand miles away. These considerations, while they may not determine the question, show at all events its great importance to Canadians; for if the law is so all Canadians will agree that some effort ought to be made to have it altered. Before discussing the question itself, it will be convenient to state some well-settled principles of law that may help in the discussion. The first is, that an act of bankruptcy must be a personal act or default on the part of the person who is to be made a bankrupt, and a firm as such cannot commit an act of bankruptcy or be made bankrupts; and a partner being adjudicated a bankrupt has the effect of dissolving the partnership and transferring the rights of the bankrupt partner to the trustee. See Hogg v. Bridges (1); Bowker v. Burdekin (2); Ingliss v. Grant (3); Ex parte Blain (4). (1) 8 Taun. 200. It follows that on the (3) 5 T. R. 530. (4) 12 Ch. D. 522. 1884. NICHOLSON v. BAIRD.. Palmer, J. |