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St. John's, Newfoundland and Labrador, Canada

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Revised Statutes of Newfoundland 1990


CHAPTER B-3

AN ACT RESPECTING BILLS OF SALE AND CHATTEL MORTGAGES

Analysis

1. Short title

2. Definitions

3. Registry

4. Application of Act

5. Sale or mortgage to be evidenced

6. Schedules

7. Description

8. Registration

9. Recitals in bills of sale

10. Affidavits of good faith accompanying bills of sale

11. Affidavit of good faith accompanying other bills of sale

12. Renewal statements

13. Removal of chattels into the province

14. Subsequent taking of possession

15. Section 13 of the Conditional Sales Act to apply

16. Registration assignments

17. Certificate of discharge

18. Expiry of time when office closed

19. Proof of execution where witness not available

20. Affidavits, proper officer

21. Proof in certain cases

22. Recertification of omissions, etc.

23. Effect of defects, irregularities and omissions

24. Evidence

25. Custody of documents

26. Registration under the Registration of Deeds Act

27. Fees


Short title

1. This Act may be cited as the Bills of Sale Act.

RSN1970 c21 s1

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Definitions

2. In this Act

(a) "affidavit" includes statutory declaration;

(b) "bill of sale" means a written document in conformity with this Act evidencing a sale or mortgage of chattels but does not include a bill of lading, a warehouse receipt, a warrant or order for the delivery of goods, or another document used in the ordinary course of business as proof of the possession or control of goods or authorizing or purporting to authorize the possessor of the document to transfer either by endorsement or delivery or to receive goods represented by the document, and for the purpose of registration includes all affidavits required by this Act to accompany the bill of sale;

(c) "change of possession" means a change of possession that is open and reasonably sufficient to give public notice of it;

(d) "chattels" means goods and chattels capable of complete transfer by delivery and includes, when separately assigned or charged, motor vehicles, fixtures and growing crops but does not include chattel interests in real property or fixtures when assigned together with a freehold or leasehold interest in land or a building to which they are affixed, or growing crops when assigned together with an interest in the land on which they grow, or a ship or vessel registered under the Canada Shipping Act or the Merchant Shipping Act, 1894 (Imperial), or a share in the ship or vessel, or an interest in the stock, funds or securities of a government or in the capital of a corporation, or a book debt or other chose in action;

(e) "creditor" means a creditor of the grantor, whether an execution creditor or not, who becomes a creditor before the registration of the bill of sale or of a renewal statement and, for the purpose of enforcing the rights of the creditors but not otherwise, includes a creditor suing on behalf of himself or herself and other creditors, an assignee for the general benefit of creditors, a trustee under the Bankruptcy Act (Canada), and a liquidator of a company under the Winding-up Act (Canada) or under the Corporations Act, without regard to the time when the creditor so suing becomes a creditor or when the assignee, trustee or liquidator is appointed;

(f) "department" means the Department of Justice;

(g) "grantee" includes the bargainee, assignee, transferee, mortgagee or other person, to whom a bill of sale is made;

(h) "grantor" includes the bargainor, assignor, transferor, mortgagor or other person, by whom a bill of sale is made, and includes the heirs, executors, administrators, successors and assigns of that person;

(i) "minister" means the Minister of Justice;

(j) "mortgage" includes an assignment, transfer, conveyance, declaration of trust without transfer, or other assurance of chattels, intended to operate as a mortgage or pledge, or a power or authority or licence to take possession of chattels as security, or an agreement, whether or not intended to be followed by the execution of another instrument, by which a right in equity to a charge or security on chattels is conferred, but does not include

(i) a specific or floating mortgage or charge of chattels created by a corporation and contained in a trust deed or other instrument to secure bonds, debentures or debenture stock of the corporation or of another corporation, or contained in bonds, debentures or debenture stock of the corporation as well as in the trust deed or other instrument securing the bonds, debentures or debenture stock of the corporation, or in a trust deed or other instrument securing bonds, debentures or debenture stock of another corporation, or contained in bonds, debentures or debenture stock or a series of bonds or debentures of the corporation, not secured by a separate instrument,

(ii) security taken by a bank under section 88 of the Bank Act (Canada),

(iii) power of distress contained in a mortgage of real property;

(k) "motor vehicle" means motor vehicle within the meaning of the Highway Traffic Act;

(l) "registered" means filed in accordance with this Act;

(m) "registrar" means the Registrar of Bills of Sale appointed under section 3;

(n) "registry" means the Registry of Conditional Sales, Bills of Sale and Chattel Mortgages referred to in section 3;

(o) "sale" includes a sale, assignment, transfer, conveyance, declaration of trust without transfer, or other assurance of chattels not intended to operate as a mortgage, or an agreement, whether or not intended to be followed by the execution of another instrument, by which a right in equity to chattels is conferred, but does not include

(i) an assignment for the general benefit of the creditors of the person making the assignment,

(ii) a transfer or sale of goods in the ordinary course of a trade or calling, or

(iii) a conditional sale within the meaning of the Conditional Sales Act or an assignment of it; and

(p) "subsequent purchaser or mortgagee" means a person to whom chattels are conveyed or mortgaged

(i) after the making of the sale or mortgage mentioned in section 5, or

(ii) after the making of the mortgage mentioned in section 12 or 13.

RSN1970 c21 s2; 1974 No42 s2; 1981 c4 Sch C; 1984 c41 Sch C; 1986 c12 Sch; 1989 c19 Sch B

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Registry

3. (1) There shall be a registry in the department for the registration of documents under this Act to be known as the Registry of Conditional Sales, Bills of Sale and Chattel Mortgages.

(2) The Lieutenant-Governor in Council shall appoint a Registrar of Bills of Sale and may appoint a Deputy Registrar of Bills of Sale, and in the absence of the registrar or when the office of registrar is vacant, the deputy registrar shall perform the functions and duties and may exercise the powers of the registrar.

1974 No42 s3

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Application of Act

4. This act applies to bills of sale of chattels notwithstanding

(a) that the chattels may not be the property of or may not be in the possession, custody or control of the grantor or anyone on his or her behalf at the time of the making of the bill of sale;

(b) that the chattels may be intended to be delivered at a future time;

(c) that the chattels may not at the time of the making of the bill of sale be actually procured or provided, or fit or ready for delivery; or

(d) that an act may be required for the making or completion of the chattels or for making them fit for delivery.

RSN1970 c21 s3

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Sale or mortgage to be evidenced

5. (1) A sale or mortgage that is not accompanied by immediate delivery and an actual and continued change of possession of the chattels sold or mortgaged is, unless the sale or mortgage is evidenced by a registered bill of sale, void as against a creditor and as against a subsequent purchaser or mortgagee claiming from or under the grantor in good faith for valuable consideration without notice whose conveyance or mortgage has been registered or is valid without registration.

(2) The sale or mortgage takes effect as against a creditor and the subsequent purchaser or mortgagee only from the time of its registration.

RSN1970 c21 s4

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Schedules

6. (1) A schedule annexed to a bill of sale or referred to in it shall be considered to be a part of the bill of sale and shall be registered with it.

(2) Where a bill of sale is subject to a defeasance, condition or trust, the terms or substance of the defeasance, condition or trust shall be set out in the bill of sale or in a schedule annexed to or referred to in the bill of sale.

RSN1970 c21 s5

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Description

7. (1) A bill of sale shall contain a sufficient and full description of the chattels that are the subject of the sale or mortgage so that they may be readily and easily known and distinguished.

(2) The description of a motor vehicle in a bill of sale shall include the serial number of the vehicle.

RSN1970 c21 s6

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Registration

8. (1) Registration of a bill of sale shall be effected by filing the bill of sale in the registry within 30 days from the date of its execution.

(2) Where there are 2 or more grantors, the date of the execution of the bill of sale shall be considered to be the date of the execution by the grantor who last executes it.

(3) A bill of sale shall not be registered unless it is accompanied by an affidavit of a certifying witness of the execution of it by the grantor identifying the bill of sale and stating the date of execution by the grantor.

(4) The registrar shall number a bill of sale, or a copy filed in the registry, endorse it with a memorandum of the date, hour and minute of its filing, and index it by entering in alphabetical order in a register kept by him or her the names of the parties to the bill of sale, its number and the date of its registration.

RSN1970 c21 s7

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Recitals in bills of sale

9. (1) Where a bill of sale is given,

(a) to secure to the grantee repayment of advances to be made by him or her under an agreement; or

(b) to secure the grantee against loss or damage because of

(i) the endorsement of a bill of exchange or promissory note,

(ii) another liability incurred by the grantee for the grantor, or

(iii) a liability to be incurred under an agreement by the grantee for the grantor,

the bill of sale shall set out clearly by recital or otherwise

(c) the terms or substance of the agreement entered into between the parties in respect of the advances;

(d) a copy of the bill of exchange or promissory note endorsed and of the endorsements;

(e) the nature and extent of the other liability incurred by the grantee for the grantor; or

(f) the terms or substance of the agreement in respect of the liability to be incurred by the grantee for the grantor.

(2) The bill of sale shall be accompanied by an affidavit of the grantee or of his or her agent, verifying the facts and deposing that the bill of sale truly sets out the extent or amount of the liability incurred or to be incurred and to be secured by the bill of sale, and that the bill of sale was executed in good faith and for the purpose of

(a) securing to the grantee repayment of the advances; or

(b) securing the grantee against loss or damage because of

(i) the endorsement,

(ii) the liability incurred by the grantee for the grantor, or

(iii) the liability to be incurred by the grantee for the grantor under the agreement,

and not for the purpose of protecting chattels mentioned in the bills of sale against the creditors of the grantor or for the purpose of preventing them from recovering claims that they have against the grantor.

RSN1970 c21 s8

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Affidavits of good faith accompanying bills of sale

10. (1) Where a bill of sale, other than a bill of sale within the scope of section 9, is given to secure the payment of an ascertained amount due or accruing due from the grantor to the grantee or to the payment of a present advance being made by the grantee to the grantor, it shall be accompanied by an affidavit of the grantee or of his or her agent, stating that the amount set out in the bill of sale as being the consideration is justly due or accruing due from the grantor to the grantee or is a present advance being made by the grantee to the grantor.

(2) The affidavit shall also state that the bill of sale was executed in good faith and for the purpose of securing to the grantee the payment of that amount and not for the purpose of protecting the chattels mentioned in it against the creditors of the grantor or for the purpose of preventing them from recovering claims that they have against the grantor.

RSN1970 c21 s9

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Affidavit of good faith accompanying other bills of sale

11. Where a bill of sale is not a bill of sale within the scope of section 9 or 10, it shall be accompanied by an affidavit of the grantee or of his or her agent, stating that the bill of sale was executed in good faith and for good consideration, as set out in the bill of sale, and not for the purpose of protecting the chattels mentioned in it against the creditors of the grantor or for the purpose of preventing them from recovering claims that they have against the grantor.

RSN1970 c21 s10

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Renewal statements

12. (1) A registered bill of sale that evidences a mortgage of chattels stops being valid after the expiration of 3 years from its registration as against a creditor and as against a subsequent purchaser or mortgagee claiming from or under the grantor in good faith for valuable consideration without notice whose conveyance or mortgage has been registered or is valid without registration, unless before the expiration of that period a renewal statement in Form 1 is registered by filing it in accordance with this section.

(2) The renewal statement shall state the interest of the mortgagee in the chattels mortgaged and the amount still owing for principal and interest, or the extent or amount of the liability still secured by it, and shall be accompanied by an affidavit of the mortgagee or his or her agent stating that the renewal statement is true and that the bill of sale is not being kept in force for a fraudulent purpose or to defeat, delay or prejudice creditors of the grantor.

(3) Unless a further renewal statement is registered in accordance with this section within 3 years from the registration of the 1st renewal statement and after that within 3 years from the registration of the last preceding renewal statement, the bill of sale stops being valid after the expiration of the period to the extent provided in subsection (1).

(4) Where a mistake is made in a renewal statement, an amended statement verified by affidavit referring to the former statement and specifying and correcting the mistake in it may be registered.

(5) Where before the registration of an amended statement a person, relying on the accuracy of the renewal statement as first registered, has in good faith made an advance of money or given valuable consideration to the grantor or has taken proceedings and incurred costs, the bill of sale, as to the amount advanced or the valuable consideration given or costs incurred by the person, shall as against him or her stand good only for the amount stated in the renewal statement as first registered or to the extent or amount of the liability secured as stated in the renewal statement as first registered.

(6) The registrar shall number, endorse and index a renewal statement and an amended statement filed in the registry in the same manner as a bill of sale.

RSN1970 c21 s11

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Removal of chattels into the province

13. Where chattels that are the subject of a mortgage that was executed when they were situated outside the province are brought into the province, the grantee is not entitled to set up a right of property or right of possession in or to the chattels brought in as against a creditor or a subsequent purchaser or mortgagee claiming from or under the grantor in good faith for valuable consideration without notice unless the bill of sale, within 30 days after the grantee has received notice of the place to which the chattels have been brought, is registered by registering a copy of the bill of sale and of the documents accompanying or relating to it, verified as copies by the affidavit of a person who has compared them with the originals.

RSN1970 c21 s12

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Subsequent taking of possession

14. A sale or mortgage or bill of sale that under this Act is void or has stopped being valid as against a creditor or purchaser or mortgagee is not, because the grantee has subsequently taken possession of the chattels sold or mortgaged, rendered valid as against a person who became a creditor, purchaser or mortgagee before the grantee took possession.

RSN1970 c21 s13

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Section 13 of the Conditional Sales Act to apply

15. Section 13 of the Conditional Sales Act applies with the necessary changes to a bill of sale given by a buyer of goods to a seller governing the whole or a part of the purchase price of the goods.

1974 No42 s4

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Registration assignments

16. (1) It is not necessary to register an assignment of a bill of sale but it may be registered by filing the assignment in the registry, accompanied by an affidavit of a certifying witness of the execution.

(2) The registrar shall note the fact of the assignment against each entry in the books in the registry respecting the registration of the bill of sale assigned and shall make the same notation upon the bill of sale or copy filed in the registry.

RSN1970 c21 s15

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Certificate of discharge

17. (1) Upon payment or tender of a fee of $1 and of all money due and to become due on a bill of sale and upon written demand delivered personally or by registered mail by the grantor or by another person having an interest in the chattels, the grantee shall sign and deliver personally or by registered mail to the person demanding it a certificate of discharge in Form 2 and an affidavit of a certifying witness of the execution.

(2) Where for 10 days after receipt of the demand referred to in subsection (1) the grantee unreasonably fails to deliver the required certificate and affidavit, he or she is liable to the person demanding it for the damages resulting from the failure.

(3) Where a registered bill of sale evidences a mortgage of chattels, it may be discharged in whole or in part by the registration in the registry of a certificate of discharge signed by the mortgagee and accompanied by an affidavit of a certifying witness of the execution, but no certificate of discharge by an assignee shall be registered unless the assignment has been registered.

(4) The registrar shall note the fact of the discharge against each entry in the books of the registry respecting the bill of sale and shall make the same notation upon the bill of sale or copy filed in the registry and upon a renewal statement and amended statement filed in the registry.

(5) The registrar shall on request provide a certificate of the entry of the discharge.

RSN1970 c21 s16

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Expiry of time when office closed

18. Where under this Act the time for registration of a document expires on a day on which the registry is closed, the registration, in relation to the time of registration, is valid if made on the next following day on which the office is open.

RSN1970 c21 s17

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Proof of execution where witness not available

19. (1) Where the certifying witness to a document to which this Act applies dies or leaves the province before making the affidavit of execution required by this Act or becomes incapable of making or refuses to make the affidavit, a judge of the Trial Division upon being satisfied as to the execution and certification of the document may make an order permitting the registration of the document.

(2) An order under this section or a copy of it shall be filed with the document.

(3) Registration of the document under the order has the same effect as the registration with the affidavit of execution otherwise required by this Act.

RSN1970 c21 s18; 1986 c42 Sch A & Sch B

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Affidavits, proper officer

20. (1) In addition to a person authorized by law to take affidavits, the registrar may take the affidavit of a person under this Act.

(2) A bill of sale or other document to which this Act applies shall not be held to be defective or void on the ground that an affidavit required by this Act was taken and made before a solicitor for a party to the bill of sale or other document or before a partner of the solicitor or before a clerk in the office of the solicitor.

(3) An affidavit required by this Act to be made by a grantee or assignee of a grantee may in the event of his or her death be made by his or her executor or administrator or by his or her next of kin or by an authorized agent of the executor or administrator.

(4) Where the grantee or assignee of a bill of sale or his or her agent is a corporation, an officer, employee or agent of the corporation may make an affidavit or statement under this Act on behalf of the corporation.

(5) An affidavit made under this Act by an agent of a grantee or assignee or by an executor or administrator or a next of kin or an authorized agent of an executor or administrator or by an officer, employee or agent of a corporation shall state that the deponent is aware of all the circumstances connected with the bill of sale and that he or she has personal knowledge of the facts deposed to.

(6) Notwithstanding subsection 8(3), where a document to which this Act applies is executed by a corporation, an affidavit of a certifying witness is not required.

RSN1970 c21 s19

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Proof in certain cases

21. Where a bill of sale, an assignment of sale or certificate of discharge is executed

(a) within the province in the presence of a justice of the peace, a notary public under his or her official seal or a commissioner for oaths in and for the province; or

(b) outside the province in the presence of a notary public under his or her official seal or a commissioner for oaths outside the province,

and if that person signs that bill of sale assignment or certificate as witness and

(c) sets out immediately after his or her signature as witness the capacity in which that person signs and if a notary public, affixes the notarial seal near his or her signature and if a commissioner for oaths, makes the notation that is required by the Commissioners for Oaths Act; or

(d) without complying with paragraph (c), signs a certificate, endorsed upon or attached to the bill of sale, assignment or certificate that the bill of sale, assignment or certificate was executed in his or her presence, and sets out immediately after the signature to the certificate the capacity in which he or she signs and if a notary public, affixes a notarial seal near his or her signature, and if a commissioner for oaths, makes the notation that is required by the Commissioners for Oaths Act,

no further proof of the execution of the bill of sale, assignment or certificate is required.

1979 c51 s6

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Recertification of omissions, etc.

22. (1) A judge of the Trial Division, upon being satisfied that an omission to register a bill of sale or renewal statement within the time prescribed by this Act or that an omission or misstatement in a document registered under this Act was accidental or due to inadvertence or impossibility or other sufficient cause may, subject to the rights of other persons that may have accrued because of the omission or misstatement, extend the time for registration or order the omission or misstatement to be rectified on the terms and conditions the judge directs.

(2) An order under this section or a copy of it shall be filed with the registrar who shall attach it to the document on file or tendered for registration and shall make the appropriate entries in the register.

RSN1970 c21 s20; 1974 No57 s38 264(e); 1986 c42 Sch A & Sch B

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Effect of defects, irregularities and omissions

23. A document to which this Act applies shall not be invalidated or its effect destroyed by reason only of a defect, irregularity, omission or error in it or in the execution or certification of it unless, in the opinion of the court before whom a question relating to it is tried, the defect, irregularity, omission or error has actually misled some person whose interests are affected by the document.

RSN1970 c21 s21

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Evidence

24. (1) A copy of a document registered or filed under this Act, certified as such by the registrar, is receivable in evidence as, in the absence of evidence to the contrary, proof for all purposes as if the original document were produced and also as, in the absence of evidence to the contrary, proof of the execution of the original document, according to the purport of the copy.

(2) The registrar's certificate is receivable in evidence as, in the absence of evidence to the contrary, proof of the date, hour and minute of registration of the document.

(3) No proof is required of the signature or official position of the registrar in respect of a certificate produced as evidence under this section.

RSN1970 c21 s22

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Custody of documents

25. (1) The registrar has the care and custody of the books and documents of record kept or filed under this Act.

(2) During the regular office hours of the registry, a person may on filling out a requisition form indicating with reasonable certainty the object of search and on payment of the prescribed fee, inspect the books and documents in the registry relating to his or her stated object.

(3) The registrar may require a person before entering the place where the books and records are kept to deposit at a place outside all pens or writing or marking instruments containing ink or moist or indelible colours, and to declare that he or she does not take in a writing or marking instrument except a soft black-lead pencil the marks of which may be readily erased.

(4) A person, not being a member of the Law Society of Newfoundland, who acts as a professional searcher, that is to say, a person who makes numerous and frequent searches on behalf of clients, shall be required to obtain a certificate of approval from the minister before being allowed to have access to the books and records, and the minister may withdraw the certificate of approval in his or her discretion.

(5) The minister may before approving a professional searcher require the searcher to sign an undertaking that he or she will pay to the registrar the fee set out in the regulations made under section 27 for each search made by the searcher and that he or she will not, having requisitioned a search, use the opportunity to make search into matters not connected with the object mentioned in the requisition; and the minister may require the professional searcher to sign a declaration that the searcher has not in fact, since 1st approved or since his or her last declaration, made a search not covered by a requisition and search fee.

(6) A professional searcher shall pay the fee set out in the regulations made under section 27 for each search made by the searcher.

(7) Notwithstanding subsection (6), in the case of generalized searches by a professional searcher, where the searcher's object is to obtain lists of persons rather than to search in respect of known parties, the registrar, with the approval of the minister, may fix a lump sum payment which may be paid, in the manner prescribed by the registrar, by a professional searcher to cover all generalized searches made during the period in respect of which the lump sum payment is made, instead of the fees prescribed in the regulations made under section 27 for searches.

RSN1970 c21 s23; 1974 No42 s5; 1981 c4 Sch C; 1984 c41 Sch C; 1989 c19 Sch B

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Registration under the Registration of Deeds Act

26. Notwithstanding another statute or law or another provision of this Act, where a conveyance, mortgage or other instrument affecting land or tenements is registered in the Registry of Deeds in accordance with the Registration of Deeds Act within 30 days after the date of its execution and the conveyance, mortgage or other instrument also evidences a sale or mortgage of chattels which are situated on or in or form part of the land or tenements, registration under this Act is not required.

RSN1970 c21 s25; 1974 No42 s6

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Fees

27. (1) The registrar shall collect and pay through the department into the Consolidated Revenue Fund the fees set out in the regulations made under this section.

(2) The Lieutenant-Governor in Council shall make regulations prescribing the fees to be paid under subsection (1) and the regulations may be made with retroactive effect from the date stated in the regulations.

(3) The registrar shall not register a document under this Act unless the fees prescribed in the regulations made under this section are paid.

1974 No42 s7

 

F O R M 1

(Section 12)

RENEWAL STATEMENT

Statement setting out the interest of................. in the chattels mentioned in the bill of sale dated the.............. day of..............., 19..., made between............. of.................. of the one part and............. of the other part and registered in the Registry of Conditional Sales Bills of Sale, and Chattel Mortgages on the......... day of.............., 19....., as No.........., and in respect of which a renewal statement was last registered in the registry as follows:

and of the amount still owing for principal and interest, or the extent or amount of the liability still secured by the bill of sale.

The................. is still the mortgagee of the chattels, and has not assigned the bill of sale (or the........................ is assignee of the bill of sale by an assignment dated the.......... day of.............., 19....).

The amount still owing for principal and interest on the bill of sale is the sum of $........ (or the extent or amount of the liability still secured by the bill of sale) is as follows:

Signature of mortgagee or assignee.

 

AFFIDAVIT

I........................., of the........ of..................... in the............ of..................., make oath (or affirm) and say:

1. I am the mortgagee named in the foregoing (or annexed) statement (or the assignee of the mortgagee named in the foregoing (or annexed) statement).

2. The statement is true.

3. The bill of sale mentioned in the statement is not being kept in force for a fraudulent purpose or to defeat, delay or prejudice creditors of the grantor.

Sworn (or affirmed) before me, etc.

RSN1970 c21 Form 1; 1974 No42 s8

 

F O R M 2

(Section 17)

CERTIFICATE OF DISCHARGE

I,......................., of the........ of..................... in the.......... of............, do certify that............ has satisfied all money due and to become due on a certain bill of sale made by.................. to........................ which bill of sale is dated the.......... day of..................., 19....., and was registered (or in case the bill of sale has been renewed was last renewed) in the Registry of Conditional Sales, Bills of Sales and Chattel Mortgages on the..... day of..............., 19...., as No.......... (here state the date of registration of each assignment and the names of the parties, or state that the bill of sale has not been assigned); and that I am the person entitled by law to receive the money, and that the bill of sale is discharged.

Witness my hand this........ day of................, 19....

Signature of mortgagee or assignee.

Note: An affidavit of execution is required by section 17.

RSN1970 c21 Form 2; 1974 No42 s8

©Earl G. Tucker, Queen's Printer