MONTGOMERY V. WIGHT.

New Hampshire was held invalid against the property in Vermont, when found there in possession of the mortgagor (23 Vt. 284), because a mortgage without change of possession could not be made in Vermont. The mortgage was therefore against the law and policy of that state: 11 N. H. 64; 10 N. H. 46.

Wells & Hunt, and H. D. Terry, for defendants:

The description in the mortgage was insufficient :- Rose v. Scott, supra; Lawrence v. Evarts, 7 0. S. R. 194.

But if the mortgage was good in Canada, the lien ceased on the property being brought here. Though our courts are bound to recognize the existence of the liens under the foreign statute, they are not to give them a priority over other liens acquired under our own statutes:- Story Confl. L. §§ 323, 324, 325d, 325k, 326,327, 388, 389; 15 Pick. 11; 13 Mass. 146; 5 N. H. 213; 9 Vt. 358; 11 N. H. 55; 23 Vt. 279. At the common law, and independant of the Canadian statute, the Montgomery mortgage would be absolutely void, for it could not be filed here. Can the Canadian statute change the rule here? Does the comity of nations require that it should have such an effect? And that the courts of this state should hold that it defeats the liens acquired by our own citizens upon the property of a debtor found here? We think not.

CAMPBELL J.:

The questions arising in this case, all go to the inquiry. whether the mortgage, made by Backus to Montgomery, takes precedence of the execution sale against Backus, whereby the property was sold.

The mortgage from Backus to Montgomery was made in Canada, and, in order to be valid at all, must be sustained under the laws of Canada. It is claimed by the defendants that, under those laws, the description of the horse in controversy is insufficient.

MONTGOMERY . WIGHT.

By the Canadian statute of 20 Vic. C. 3, § 4, it is declared that a mortgage of chattels, "shall contain such efficient and full description thereof, that the same may be thereby readily and easily known and distinguished."

The description in the mortgage before us is " one sorrel horse." In the case of Rose v. Scott, 17 Q. B. 385, the court of Queen's Bench of Upper Canada had occasion to apply the provision of the statute above quoted, to a chattel mortgage containing the following description, viz: "seven horses, three lumber wagons, one carriage, one pleasure sleigh, all the household furniture in possession of the said party of the first part, and being in his dwelling house; all the lumber and logs in and about the saw mill and premises of the said grantor, and all the blacksmith's tools now in possession of the said party of the first part; six cows and four stoves." The court held that nothing but the furniture, lumber and logs, could pass, as none of the other articles were described in such a way as to enable a person to ascertain their identity by inspection or inquiry, and distinguish them from other similar articles. We do not perceive in the description before us any way of distinguishing this sorrel horse from any other sorrel horse in the province, and are very well convinced that the instrument would be so construed by the Canadian courts, upon the authority cited. The object of the statute is to prevent purchasers and creditors from being deceived by ambiguous descriptions, the allowance of which would encourage fraud, and render it easy to substitute one chattel for another. As this horse had a name, that would have furnished a ready description. And any hint which would have directed the attention of those reading the mortgage to any source of information beyond the word of the parties to it, would at least have been much more satisfactory. The provision in the statute was, as is remarked in Rose v. Scott, "to enable third parties to ascertain what was intended to be assigned." The statute is certainly a wise one,

MONTGOMERY . WIGHT.

and should be so construed as to make it effectual. As between the parties, the same difficulties are not likely to arise.

A more serious question, however, is whether the mortgage, if sufficiently certain, could yet avail against the levy, The defendants claim that it must yield to their execution title. The plaintiff, however, insists that we are bound by comity to protect his rights; and that his mortgage is valid here, to all intents and purposes, if valid in Canada.

We certainly should be very reluctant to deny to any party any right legally assured to him under the laws of our neighboring province, even if our common origin and friendly associations did not make the duty of extending the principles of comity a cheerful one. And in holding, as we are compelled to in this case, we are glad that we find no incompatibility between our own laws and those of Canada. We regard them both as aiming to accomplish the same object in very much the same way. They are substantially alike.

The evil which both statutes found in existence, was the facility for fraud held out by allowing mortgagors of chattels to retain possession under any circumstances. By permitting the mortgagee to hold, if he took his security in good faith, the law formerly subjected subsequent purcha sers from the mortgagor to all the danger arising from his fraud, although he was enabled to perpetrate it by the permission to retain possession given him by the mortgagee. At the same time there were many cases where it was very necessary to the mortgagor to be enabled to keep possession. In order to provide for such emergencies, and at the same time protect creditors and purchasers from fraud, our statutes declare that a chattel mortgage shall be void as against them, without an actual and continued change of possession, unless the mortgage is recorded by filing a copy, with us in the city or town, and in Canada, in the proper county office. And here, as there, an affidavit of renewal must be made yearly.

MONTGOMERY . WIGHT.

This provision for filing or registry is not intended by any means to encourage or legalize the practice of making mortgages without possession. The statute now as before, regards change of possession as the rule, and allows filing to dispense with its necessity, because filing is public notice. But we can not suppose that either statute was designed, or can be properly construed, to dispense in any case with filing and change of possession also. If a chattel mortgage of property here is made by a non-resident, our law contains no provision for filing it. In such a case a change of possession is therefore essential, and can not be dispensed with against creditors or purchasers. The Canadian law contains a provision for filing in the county where the property is, if the mortgagor is a non-resident, and also contemplates a new filing, if the property is removed from county to county. These provisions are ample, where the property continues within the jurisdiction. But neither law undertakes to provide for any notice to be effectual if the property is elsewhere, and in such contingency, the prohibition of retaining possession must be absolute, so far as it can apply at all.

We must assume that these laws were passed in view of the well settled principle, that a law can have no binding force beyond the jurisdiction of the sovereignty enacting it. A resident of Canada, while dealing in Canada, for a chattel, can not be supposed to know the law of Michigan, or to be obliged to take notice of the records in a Michigan office. A statute of Michigan requiring him to do so would be of no validity beyond our own borders. And it would be equally unreasonable to require a citizen of Michigan, at home, to take notice of files and entries in Canada. These notices can have no extra territorial force. Proceeding upon the principle that the laws must have a sensible construction, we feel constrained to hold that the rules of these laws which require a change of possession, dispense with it only where an effectual notice may be

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given. If mortgagees desire to be protected where no notice can be made effectual, they must take possession, and not allow the mortgagor to take the property where third parties have no means of ascertaining its title.

In the view we have taken of these laws, no conflict arises, and we regard our ruling as sustaining the policy of both countries.

It must be certified, that the mortgage of plaintiff is invalid as against the levy and sale under the defendant's execution, and that the latter must be allowed priority. The other questions become immaterial.

The other Justices concurred.

Augustus Pond v. The People.

The law does not require the necessity for taking human life to be one arising out of actual and imminent danger, in order to excuse the slayer; but he may act upon a belief, arising from appearances which give him reasonable cause for it that the danger is actual and imminent, although he may turn out to be mistaken. The guilt of the accused must depend upon the circumstances as they appear to him, and he will not be held responsible for a knowledge of the facts, unless his ignorance arises from fault or negligence.

Homicide se defendendo, in resisting an assault not made with felonious intent, is excusable where the danger to be resisted is to life, or of serious bodily harm of a permanent character, and unavoidable by other means in the power of the slayer so far as he is able to judge at the time. But he is bound if possible to get out of his adversary's way, and has no right to stand up and resist if he can safely retreat or escape.

A man assaulted in his dwelling is not obliged to retreat, but may use such means as are absolutely necessary to repel the assailant from his house, or prevent his forcible entry, even to the taking of life. And, if the assault or breaking is felonious, the homicide becomes, at common law, justifiable, and not merely excusable.

The same circumstances which excuse or justify homicide in defense of one's self will excuse or justify it in defense of his servant.

Whenever a forcible felony is attempted against person or property, the person resist ing the attempt is not obliged to retreat, but may pursue his adversary if necessary, till he finds himself out of danger. But he may not properly take life if the evil may be prevented by other means within his power.

It is immaterial to the justification of homicide in resisting a forcible felony, whether the act was a felony at the common law, or made such by statute.