*^:^^'^P^&S iNDERMAb'R &f ThWAITKS. -,tr ai.<-,'.tx=^-- FOR THE USE OF STUDENTS At 22, Chancery Lane, NOT TO BE TAKEN AWAY. i' \ It ^^^^^ 'Wll'x i'-; - THE LAW OF BILLS OF SALE Nineteenth Edition, Price os. net ; by Post os. 6d. A Handy Book on the Formation, Management, and Winding Up of Joint Stock Companies. By WM. JORDAN, Reo-istration and Parlia- mentary Agent, and F. GORE-BROWNE, M. A., of the Inner Temple, Barrister-at-Law. This Edition has been revised and brought down to date. It embodies the latest decisions on all important points of Company Law and Practice, and, besides the information contained In former Editions, it gives the text of the Bill to Amend the Companies Acts proposed by the Board of Trade Committee, with Annotations by Mr, F. GORE-BROWNE, and the recent alterations in the Rules of the London Stock Exchange. Fifth Edition, Price 6s. net ; by Post 6s. 6d. The Law of Stamp Duties on Deeds and other Instruments : containing The Stamp Act, 1891 ; The Stamp Duties Management Act, 1891 ; and Acts Amending the same ; a Summary of Case Law ; Notes of Practice and Administration ; Tables of Exemptions; The Old and New Death Duties ; and the Excise Licence Duties. By E. N. ALPE, of the Middle Temple, Barrister- at-Law, and the Solicitor's Department, Inland Revenue. This Edition has been revised and brought down to date. It contains all the alterations relating to Stamp Duties that have been effected by the various Inland Revenue and other Acts passed since 1891, and the provisions relating to the Estate, Excise, and Stamp Duties contained in The Finance Act, 1894. The Law OF Bills of Sale CONTAINING A General Introduction in Ten Chapters THE TEXT OF THE REPEALED STATUTES THE Bills of Sale Acts, 1878 to 1891, with Notes AND AN APPENDIX OF FORMS BY JAMES WEIR, M.A. ■ I ( Barristev-at-Law, of Lincoln's Inn JORDAN & SONS, LIMITED 120 Chancery Lane, and 8 Bell Yard, Temple Bar 1896 1 T r4 PREFACE. rriHE object of this book is to furnish a Commentary on the -■- Bills of Sale Acts in direct connection, as far as possible, with the language of the Acts: With this view certain topics capable of separate treatment are dealt with in a general intro- duction, and in the later parts of the work the repealed Acts are printed for reference, and the Acts now in force are fully annotated in chronological order. The Author trusts that the book will be thought sufficiently distinctive in method to justify its publication, and that practitioners will find it a convenient and trustworthy guide to a peculiarly difficult subject. There are some features of novelty in the interpretation of the Acts put forward in this book, to the more important of which it seems right to call attention here. 1. It is pointed out that Section 4 of the Act of 1878 lays down two rules relating to fixtures, that trade machinery is excepted out of the negative rule, but not out of the affii^mative rule, and consequently that Section 5 must be read as logically dependent upon the negative rule in Section 4. This distinction is essential for the determination of the question whether an instrument assigning or charging trade machinery is a Bill of Sale within Section 4, or is merely " deemed to be a Bill of Sale " under Section 5. 2. It is pointed out that the phrase " deemed to be a Bill of Sale," used in Section 5, is identical with that used in Section 6, and therefore that the principle of Green v. Marsh (1892, 2 Q. B. 380), decided by the Court of Appeal with reference to Section 6, must also, if sound, apply equally to instruments which are deemed to be Bills of Sale within Section 5. 3. An attempt is made to show that Ch-een v. Marsh itself rests upon a misconstruction of Section 3 of the Act of 1882, and that, on the true construction of that Section, the Act of 1882 applies only to instruments which are within the definition of a Bill of Sale in Section 4 of the Act of 1878, and not at all to instruments which are deemed to be Bills of Sale under Section 5 or Section 6. 79/;e37 PREFACE. 4. The Author has ventured to sucrgest an interpretation of the important enactment as to the omission to register a "defeasance, condition, or declaration of trust," contained in Section 10 of the Act of 1878, and a view of the relation between that enactment and the statutory form, which, if it is well founded, goes some way to elucidate a very difficult class of cases. 5. In construing Sections 4, 5, and 6 of the Act of 1882 the Author has largely relied on the reasoning of the Privy Council in Tennant v. Hoioatson (1888, 13 App. Ca. 489) with respect to the similar Sections of the corresponding Trinidad Ordinance (No. 15 of 1884). It would be idle to suppose that any construction of these Sections is entirely free from objection ; but it is submitted that the construction adopted by the Privy Council gets rid at least of the more formidable difficulties which were felt by the Lords Justices in the recent case of Seed v. Bradley (1894, 1 Q. B. 819). 6. In expounding the relation between the doctrine of reputed ownership and the Act of 1882, the Author has adopted in substance the decision of Miller, J., in In re Stanley (1886, 17 L. R. Ir. 487). In spite of the strange silence of text-writers on that case, and of the slighting comment of Cave, J., on the head-note thereto (see i/ic parte Slater, re Webber, 1891, 64 L. T. 426), it seems to the Author to be not only good law, but elementary good sense, that a person who cannot refuse cannot consent. Where cases are cited in the text a reference to one i-eport only, with the date, is generally given. Other contemporary references will be found in the Table of Cases. No one can be more sensible of tlie imperfections of this book, notwithstanding the great care and labour which it has cost, than the Author, who now respectfully submits it to the judgment of the Profession. J. W. Thk Temple, 1st January, 189(). CONTENTS PREFACE V TABLE OF CASES ix LIST OF STATUTES xlvi LIST OF ORDERS AND RULES xlix ADDENDA ET CORRIGENDA 1 PART I. GENERAL INTRODUCTION. CHAPTEK I. Preliminary II. Absolute Bills of Sale 1. Documents accompanying Sales ----- 2. Deeds of Gift, Declarations of Trust, and Settlements 3. The Schedule or Inventory ----- Note A. — Sheriff's Power to Sell - - - - Note B. — Building Agreements - - - . III. Real and Fictitious Transactions - . - - - Note on Hiring Agreements - - . - - IV. Securities Dependent on Possession . . - - V. Bills of Sale in Security for Money .... Note A. — Grantor's Right to Possession before 1882 Note B. — Grantor's Jus Disponendi before 1882 Note c. — Successive Bills of Sale before 1878 - VI. Special Classes of Property ------ 1. Growing Crops -------- 2. Fixtures, including Trade Machinery - - - - 3. Choses in Action --.---- Note on Future or After-acquired Property VII. Title of the Grantor VIII. Parties to Bills of Sale IX. Fraud Against Creditors X. Bankruptcy ---------- 1—5 6—29 6 20 23 26 27 30—44 41 45—52 53—77 70 73 75 78—95 78 80 89 91 96—104 105—108 109—117 118—133 CONTENTS. PART II. THE REPEALED STATUTES. Bills of Sale Act, 1854 (17 & 18 Vict. c. 36) - - - - 137—140 Bills of Sale Act, 1866 (29 & 30 Vict. c. 96) - - - - 141—144 PART III. THE BILLS OF SALE ACTS. Bills of Sale Act, 1878 (41 & 42 Vict. c. 31) - - - - - 147—244 Note on Rescission, Siibstitution, and Cancellation - - 195 Bills of Sale Act (1878) Amendment Act, 1882 (45 & 46 Vict. c. 43) 245—324 Notes to Statutory Form of Bill of Sale - - - - 283—309 Bills of Sale Act, 1890 (53 & 54 Vict. c. 53) 325 Bills of Sale Act, 1891 (54 & 55 Vict. c. 35) .... 326 APPENDIX OF FORMS. FORM PAGE 1. Affidavit on Registration of Bill of Sale - . . - . 329 2. Affidavit on Registration of Bill of Sale in Security for Money - 330 3. Affidavit on Renewal of Registration .-..-- 331 4. Form of Register - - - - 331 5. Order to Register or Re-register Bill of Sale under Section 14 of The Bills of Sale Act, 1878 - - 331 6. Consent to Entry of Satisfaction ------- 332 7. Affidavit verifying Consent to Entry of Satisfaction - - - 332 8. Summons for Entry of Satisfaction ------ 333 9. Order for Entry of Satisfaction 333 10. Local Registration — Abstract of Bill of Sale ----- 334 11. Local Registration — Notice of Satisfaction ----- 335 12. Praecipe for Search ----.---. 336 Rules under Section 2 of The Conveyancing Act, 1882 - - 336 13. Declaration by Separate Instrument as to Purposes of Search - 337 14. Declaration as to Purpose of Search contained in the Requisition - 337 15. Requisition for Search .---.---- 338 16. Certificate of Search -----..-- 339 17. Requisition for Continuation of Search ----.- 339 18. Certificate of Result of Continued Search - - - . . 340 19. Attestation Clause to Bill of Sale within the Act of 1878 - . 340 20. Statutoiy Form of Bill of Sale in Security for Money - - - 340 INDEX - - 341 TABLE OF CASES PAGE Abrams, ex p., re Johnstone, 1884, 50 L. T. 184 ; 1 Mor. 32 - - 62, 289 Adams v. Angell, 1877, 5 Ch. D. 634 ; 46 L. J., Ch. 352 ; 36 L. T. 334 - 70 Adams v. Graham, 1864, 33 L. J., Q. B. 71 ; 9 L. T. 606 ; 12 W. R. 282 ; 10 Jur. N. S. 356 - - - - - - - 209 Administrator- General of Jamaica v. Lascelles, 1894, A. C. 135; 6 R. 445 ; 63 L. J., P. C. 70 ; 70 L. T. 179 ; 42 W. R. 416 ; 1 Manson 163 120 Albert i'. Grosvenor Investment Co., 1867, L. R., 3 Q. B. 123 : 37 L. J., Q. B. 24 ; 8 B. & S. 664 - - - - - - 261, 262 Alderson v. Peel, 1891, 64 L. T. 645 ; 7 T. L. R. 418 - - - 21 Alderson v. White, 1858, De G. & J. 97 ; 4 Jur. N. S. 125 - - 248 Aldrich V. Cooper, 1803, 8 Yes. 382 ; 2 W. & T., L. C. 82 - - 69 Alexander, ex p., re Eslick (1), 1876, 4 Ch. D. 496; 35 L. T. 912 - 128 Alexander, ex p., re Eslick (2), 1876, 4 Ch. D. 503 ; 25 W. R. 260; 35 L. T. 914; 46 L. J., Bank. 30 ...... 88 AUam, ex p., re Munday, 1884, 14 Q. B. D. 43; 33 W. R. 231 - 196, 271, 306, 307 Allard, ex p., re Simons, 1881, 16 Ch. D. 505; 44 L. T. 35; 29 W. R. 406 99 Allen V. Bonnett, 1870, L. R., 5 Ch. 577 ; 23 L. T. 437 ; 18 W. R. 874 - 126 Allen, ex p., re Middleton, 1S70, L. R., 11 Eq. 209 ; 40 L. J., Bank. 171 ; 19 W. R. 274 ------ - 75 Allen r. Thompson, 1856, 2 Jur. X. S. 4.51 ; 25 L. J., Ex. 249 ; 1 H. & X. 15 ; 4 W. R. 506 - - - - - - 203, 204, 209 Allsopp V. Day, 1861, 31 L. J., Ex. 105 ; 7 H. & X. 457; 5 L. T. 320; 10 W. R. 135; 8 Jur. N. S. 41 - - - - - 12 Alton r. Harrison, 1809, L. R., 4 Ch. 622; 38 L. J., Ch. 669; 21 L. T. 282; 17 W. R. 1034 ..-.-.- 113, 160 Ames V. Higdon, 1893, 69 L. T. 292 - - - - - 61 Ancona v. Rogers, 1876, 1 Ex. D. 285 ; 46 L. J., Ex. 121 ; 35 L. T. 115 ; 24 W. R. 1000 .-.--. 153, 168, 170, 241 Anderson v. Radcliffe, 1858, 28 L. J., Q. B. 32 ; affirmed 29 L. J., Q. B. 128 ; E. B. & E. 806 ; 8 W. R. 283 ; 6 Jur. N. S. 578 - - 257 Andrew v. Andrew, 1845, 1 Coll. 690 - - - - - 103 Andrews, ex p., re Tells, 1876, 4 Ch. D. 509 ; 46 L. J., Bank. 23 ; 36 L. T. 38; 25 W. R. 382 - - - - - - - 132 Armitage, ex p., re Learoyd, 1881, 17 Ch. D. 13 ; 41 L. T. 262 ; 29 W. R. 772 -------- - 131 Arnold, ex p., re Wright, 1876, 3 Ch. D. 70 ; 45 L. J., Bank. 130 ; 35 L. T. 21 ; 24 W. R. 977 - - - - - - - 130 Ashford v. Tuite, 1857, 7 Ir. C. L. Rep. 91 - - - - 159, 16 TABLE OF CASES. PAGE Ashton V. Blacksliaw, 1870, L.R., 9 Eq. 510; 39 L. J., Ch. 205; 21 L. T. 197; 18 W. E. 307 - - - - - - -22,315 Ashton V. Corrigan, 1871, L. R., 13 Eq. 76 ; 41 L. J., Ch. 96 - - 55 Askew V. Lewis, 1883, 10 Q. B. D. 477 ; 48 L. T. 534 ; 31 W. R. 567 ; 47 J. P. 312 - - - - - - - - 233, 242 Asphaltic Wood Pavement Co., in re, 1883, 49 L. T. 159 ; 32 W. R. 16 190, 318, 323 Astbury, ex p., re Richards, 1869, L. R., 4 Ch. 630 ; 38 L. J., Bank. 9 ; 20 L. T. 997 ; 17 W. R. 997 - - - - - - 82 Atkinson r. Maling, 1788, 2 T. R. 462 . - - . . 162 Attenborough v. Thompson, 1857, 27 L. J., Ex. 23 ; 2 H. & N. 559 ; 3 Jur. X. S. 1307 ---.--.. 203 Attorney-General v. Great Eastern Railway Co., 1879, 11 Ch. D. 449; 48 L. J., Ch. 428 ; 40 L. T. 265 ; 27 W. R. 759 - - - 253 Attwater, ex p., re Turner, 1876, 5 Ch. D. 27 ; 46 L. J., Bank. 41 ; 35 L. T. 682 ; 25 W. R. 206 - - - - - - - 192, 263 Bach V. Meats, 1816, 5 M. & S. 200 - - - - - 265 Badger v. Shaw, 1860, 29 L. J., Q. B. 73 ; 2 E. & E. 472 ; 1 L. T. 323 ; 9 W. R. 210;6 Jur. N.S. 377 . . . . . 314 Baghott V. Norman, 1880, 41 L. T. 787 - - - - - 158, 191 Bagnall v. Villar, 1879, 12 Ch. D. 812 ; 48 L. J., Ch. 695 ; 28 W. R. 242 78 Bagot V. Arnott, 1867, 2 Jr. C. L. R. 1 - - - - - 120, 126 Bagshaw v. Farnsworth, 1860, 2 L. T. N. S. 390 ... 79 Baker v. Richardson, 1858, 6 W. R. 663 - - - - - 25 Banbury v. White, 1863, 32 L. J., Ex. 258; 2 H. & C. 300; 8 L. T. 508; 11 W. R. 785; 9 Jur. N. S. 913 .... 171, 193, 207 Bank of N. S. Wales v. O'Connor, 1889, 14 App. Ca. 273 ; 58 L. J., P. C. 82 ; 60 L. T. 467 - - - - - - - 67 Bansha Woollen Mills Co., in re, 1888, 21 L. R. Ir. 181 - - 281, 319 Barber v. Blaiberg, 1882, 19 Ch. D. 473 ; 51 L. J., Ch. 509 ; 46 L. T. 52 ; 30 W. R. 362 . . . . - - - 70 Barclay, ex p., re Gawan, 1855, 5 De G. M. & G. 403 ; 25 L. J., Bunk. 1 ; 1 Jur. N. S. 1145 - - - - - - - 82, 83 Barclay, ex p., re Joyce, 1874, L. R., 9 Ch. 576 ; 43 L. J., Bank. 137 ; 30 L. T. 479 ; 22 W. R. 608 - . - - - 85, 86, 175 Bardell v. Daykin, 1887, 3 T. L. R. 526 - - - - - 303 Barkers. Aston, 1858, 1 F. & F. 192 - - - - 96, 189, 240 Barker v. Dale, 1858, 1 F. & F. 271 - - - - - 240 Barker v. Furlong, 1891, 2 Ch. 172; 60 L. J., Ch. 368; 64 L. T. 411; 39 W. R. 621 . - - - - - - 171 Barnott, ex p., re Tamplin, 1890, 59 L. J., q. 15. 1!)4; 62 L. T. 264; 38 W. R. 351 ; 7 Mor. 70 - - - - - - 101, 254 Barr v. Kingsfcjrd, 1887, 56 L. T. 861 .... 300, 304, 307 Burrow v. Bull, 1855, 25 L. J., Q. B. 2; 5 E. & B. 540; 2 Jur. N. S. 159- 129 TABLE OF CASES. Barter, ex p., re Walker, 1884, 26 Ch. D. 510; 53 L. J., Ch. 802; 51 L. T. 811 ; 32 W. R. 809 - - - - - - - 27 Bashall r. Bashall, 1894, 11 T. L. R. 152- - - - - 21 Bath V. Sutton, 1858,27 L. J., Ex. 388 (.see Sutton v. Bath) - 20S, 213, 236 Baxter v. Pritchard, 183 1, 1 A. & E. 456 ; 3 N. & M. 638 - - 119 Bayley, ex p., re Hart, 1880, 15 Ch. D. 223 ; 43 L. T. 181 ; 29 W. R. 28 - 62, 90 Bayspoole r. Collins, 1871, L. R., 6 Ch. 228; 40 L. J., Ch. 289 ; 25 L. T. 282 ; 19 W. R. 363 - - - - - - - 114 Beales v. Tennant, 1860, 29 L. J., Q. B. 188 ; 1 L. T. 295 ; 6 Jur. N. S. 628 -------- - 209 Beckett v. Tower Assets Co., 1891, 1 Q. B. 1, 638 ; 60 L. J., Q. B. 493 ; 64 L. T. 497 ; 39 W. R. 438 ; 55 J. P. 438 - - 30, 40, 41, 154, 267 Beesty, ex p., re Lowenthal, 1884, 13 Q. B. D. 238 ; 53 L. J., Q. B. 524 ; 51 L. T. 431; 33 W. R. 138; 1 Mor. 117 .... 131 Beevor v. Savage, 1867, 16 L. T. 358 - - - - - 159 Begbie v. Fenwick, 1871, L. R., 8 Ch. 1075 n ; 24 L. T. 58 ; 19 W. R. 402 - - - - - - - - 77, 85, 87, 185 Belcher v. Oldfiekl, 1839, 6 Bing., N. C. 102 ; 8 Scott 221 - - 46 Belding v. Read, 1865, 34 L. J., Ex. 212 ; 3 H. & C. 955 ; 13 L. T. 66; 13 W. R. 867 ; 11 Jur. X. S. 547 - - - - - 72, 94 Bell r. Sunderland Building Society, 1883, 24 Ch. D. 618; 53 L. J., Ch. 509; 49 L. T. 5.55 ...... Bellamy v. Saull (1), 1862, 7 L. T. 269 - Bellamys. Saull (2), 1863, 32 L. J., Q. B. 366; 4 B. & S. 265; 8 L. T. 534; 11 W. R. 800 - Bennett 17. Daniel, 1830, 10 B. & C. 500- - - . . Benton v. Thomhill, 1816, 7 Taunt. 149 ; 2 Marsh. 427 Bernstein, ex p., re Gordon, 1883, 74 L. T. J. 245 Berwick, ex p., re Young, 1880, 43 L. T. 576 ; 29 W. R. 292 Bessey v. Windham, 1844, 14 L. J., Q. B. 7 ; 6 Q. B. 166 Bianchi v. Offord, 1886, 17 Q. B. D. 484 ; 55 L. J., Q. B. 486 - Biddulph r. Goold, 1863, 11 W. R. 882 Bills V. Smith, 1865, 34 L. J., Q. B. 68 ; 6 B. & S. 314; 12 L. T. 22 ; 13 W. R. 407; llJur. N. S. 154 - . - . . 122 Bird r. Davey, 1890 [1891], 1 Q. B. 29 ; 60 L. J., Q. B. 8 ; 63 L. T. 741 ; 39 W. R. 40 - - - - - - - - 309 Bishop I'. Beale, 1884, 1 T. L. R. 140 - - - - - 291 Bishop !•. Consolidated Credit Corporation, 1889, 5 T. L. R. 378; 86 L. T. J. 426 - - - - - - - - 278 Bittlestone r. Cook, 1856, 25 L. J., Q. B. 281 ; 6 E. & B. 296 ; 2 Jur. N. S. 758 - - - - - - - - 119 Black V. Williams, 1894 [1895], 1 Ch. 408 ; 64 L. J., Ch. 137 ; 43 W. R. 346 -------- - 162 Blackwell r. England, 1857, 27 L. J., Q. B. 124 ; 8 E. & B. 541 ; 3 Jur. N. S. 1302 ---.-.-. 203 70, 132 205 239 194 225 114 115 277 270, 271 110 299 114 TABLE OF CASES. PAGE Blaiberg v. Beckett, 1886, 18 Q. B. D. 96 ; 56 L. J., Q. B. 35 ; 55 L. T. 876 ; 35 W. R. 34 - - - 61, 214, 295, 296, 297, 298, 302, 303, 304 Blaiberg v. Parke, 1882, 10 Q. B. 90; 52 L, J., Q. B. 110; 48 L. T. 311 ; 31 W. R. 246 - - - - - - - 203 Blaiberg v. Parsons, 1886, 17 Q. B. D. 336; 55 L. J., Q. B. 408; 34 W. R. 717 - - 303 Blaiberg, ex p., re Toomer, 1883, 23 Ch. D. 254 ; 52 L. J., Ch. 461 ; 49L. T. 16; 31 W. R. 906 - - - 76,77,171,189,191,192,225 Blake r. Izard, 1867, 16 W. R. 108 - - - - - 27, 28 Blankenstein v. Robertson, 1890, 24 Q. B. D. 543 ; 59 L. J., Q. B. 315 ; 62 L. T. 732 - - - - - - - - 289, 309 Blount V. Harris, 1878, 4 Q. B. D. 603 ; 48 L. J., Q. B. 159 ; 39 L. T. 465 ; 27 W. R. 202 - - - - - - - 206 Boldero v. London & Westminster Loan Co., 1879, 5 Ex. D. 47; 42 L. T. 56 ; 28 W. R. 154 - - - - - - - 159, 160 Bolland, e» p., re Clint, 1873, L. R., 17 Eq. 115; 43 L. J., Bank. 16; 29 L. T. 543 ; 22 W. R. 152 - - - - - - 161 Bollaud, ex p., re Gibson, 1878, 8 Ch. D. 230 ; 38 L. T. 326 ; 26 W. R. 481 121 BoUand, ex p., re Price, 1872, 41 L. J., Bank. 60 ; 20 W. R. 862 - - 118 Bolland, ex p., re Roper, 1882, 21 Ch. D. 543; 52 L. J., Ch. 113 ; 47 L. T. 488 ; 31 W. R. 102 ------- 199,272 Bott V. Smith, 1856, 21 Beav. 511 - - - - - 113 Bouchette v. Attenborough, 1887, 3 T. L. R. 813 - - - 285 Bouchctte V. Consolidated Credit Corporation, 1889, 5 T. L. R. 653 56, 195, 271 Bourne i'. Wall, 1891, 64 L.T. 530; 39 W. R. 510 . - - 303 Bowes V. Foster, 1858, 27 L. J., Ex. 262 ; 2 H. & N. 779 ; 4 Jur. N. S. 95 99, 110 Bowker v. Williamson, 1889, 5 T. L. R. 382 - - - - 49 Boyd V. Shorrock, 1867, L. R., 5 Eq. 72 ; 37 L. J., Ch. 144; 17 L. T. 197; 16 W. R. 102 - - - - - - - 81, 85, 86 Bradley v. Copley, 1845, 14 L. J., C. P. 222 ; 1 C. B. 685 ; 9 Jur. 599 - 71, 261 Bramwell v. Eglinton, 1864, 33 L. J., Q. B. 130; 5 B. & S. 39; 10 L T. 735 ; 14 W. K. 739 ; 12 Jur. N. S. 702 - - - - 63, 129 Brantom r. Griffits, 1876, 1 C. P. D. 349; 1877, 2 C. V. D. 212; 46 L. J., C. P. 408 ; 36 L. T. 4 ; 29 W. R. 313 - 8, 9, 10, 79, 156, 164, 165, 166, 187 Bresnovich v. Levison, 1889, 87 L. T. J. 37 - - - - 197 Breton, re, Breton v. Woollven, 1881, 17 Cli. D. 416 ; 50 L. J., Ch. 369; 44'l. T. 337 ; 29 W. R. 777 - - - - - 21, 22 Breton v. Mockett, 1878, 9 Ch. D. 95 ; 47 L. J., Ch. 754; 26 W. R. 850 - 103 Brewin v. Short, 1855, 24 L. J., Q. B. 297 ; 5 E. & B. 227 ; 1 Jur. N. S. 798 130 Brierly v. Kendall, 1852, 21 L. J., Q. B. 161 ; 17 Q. B. 937 - - 56, 71, 261 Briggs r. Bo.ss, 1868, L. R., 3 Q. B. 268 ; 37 L. J., Q. B. 101 ; 17 L. T. ^599; 16 W. R. 480 .------ 204,210 Briggs V. Pike, 1892, 61 L. J., Q. B. 418 ; (i(J L. T. 637 - - - 299 Briggs V. Spicer, in re, 1891, 2 Ch. 127 ; 60 L. J., Ch. 514 ; 64 L. T. 187 ; 39 W. R. 377 ; 55 J. P. 278 - - - - - - 124 TABLE OF CASES. Brighty V. Norton, 1862, 32 L. J., Q. B. 38; 3 B. & S. 305 ; 7 L. T. X. S. 422 ; 11 W. R. 167 ; 9 Jur. N. S. 495 - - - - 72 Brignall v. Cohen, 1872, 21 W. R. 25 - - - - - 193 British Wagon Co. v. Lea, 1880, 5 Q. B. D. 149; 49 L. J.. Q. B. 321 ; 42 L. T. 437; 28 W. R. 349; 44 J. P. 440 - - - -42,43 Broadwood, fixj)., 1841. 1 M. D. & D. 631 - - - - 83 Brocklehurst v. Lawe, 1857, 7 E. & B. 176 ; 26 L. J.. Q. B. 107 ; 3 Jur. N. S. 436 - - - - - - - - 264 Brocklehurst v. Railway Printing Co., 1884, W. N. 70 - - 319, 320, 322 Brodrick v. Scale, 1871, L. R., 6 C. P. 98 ; 40 L. J., C. P. 130 ; 23 L. T. 864 ; 19 W. R. 386 - - - - - - 207, 212, 213 Brooke, in re, Brooke v. Brooke, 1894, 2 Ch. 600; 8 R. 24 ; 64 L. J., Ch. 21 ; 71 L. T. 398 - - - - - - 177, 186 Brooks, ex p., re Fowler, 1883, 23 Ch. D. 261 ; 48 L. T. 453 ; 31 W. R. 833 ; 47 J. P. 470 - - - - - - - 43 Brooks V. Harrison, 1880, 6 L. R. Ir. 85, 332 - - - 163, 170, 243 Brown v. Bateman, 1867, L. R., 2 C. P. 272 ; 36 L. J., C. P. 134 ; 15 L. T. 658 ; 15 W. R. 359 - - - - - - - 27, 28, 29 Brown r. Blaine, 1884, 1 T. L. R. 158 - - - - - 35, 64 Brown v. Hickinbotham, 1881, 50 L. J., Q. B. 426 - - - 58, 99 Brown v. London and County Advance Co., 1889, 5 T. L. R. 199 - 238 Brown v. Metropolitan Counties Society, 1859, 28 L. J., Q. B. 236; 1 E. & E. 832 ; 5 Jur. 1028 ----- 154, 155, 180 Brown's Estate, in re, Brown r. Brown, 1893. 2 Ch. 300 ; 8 R. 463 ; 62 L. J., Ch. 695 ; 69 L. T. 12 ; 41 W. R. 440 - - - 64 Brown, ex p., re Reed, 1878, 9 Ch. D. 389; 48 L. J., Bank. 10: 39 L. T. 338 ; 27 W. R. 219 - - - - - 89, 100, 176, 185, 187, 193 Brown, ex p., re Vansittart, 1893, 2 Q. B. 377 ; 5 R. 280 ; 62 L. J., Q. B. 279 ; 68 L. T. 233 ; 41 W. R. 286 ; 10 Mor. 44- - - 124 Brown, ex p., re Yates, 1879, 11 Ch. D. 148; 48 L. J., Bank. 78; 40 L. T. 402 ; 27 W. R. 651 - - - - - - 130 Browne r. Cole, 1845, 14 L. J., Ch. 167 ; 14 Sim. 427 ; 9 Jur. 290 - 67 Browne v. Fryer, 1882, 46 L. T. 636 - - - - - 74, 90, 285 Bryant v. Easterson, 1859, 5 Jur. N. S. 166 - - - - 103 Bryson v. Wylie, 1783, 1 B. & P. 83 7i - - - - - 316 Bulmer v. Hunter, 1869, L. R., 8 Eq. 46 ; 38 L. J., Ch. 543 ; 20 L. T. 942 161 Burgess, ex p., re Hood, 1893, 4 R. 502 ; 42 W. R. 23 ; 10 Mor. 231 - 11 Burrell, ex p., re Robinson, 1876, 1 Ch. D. 537 ; 45 L. J., Bank. 68 ; 34 L. T. 198 ; 24 W. R. 353 - - - - - - 99 Burroughs v. Williams, 1878, L. J. X. 127 - - - - 169 Burton v. Hughes, 1824, 2 Blng. 173 - - - - - 42 Burton, ex p., re Tunstall, 1879, 13 Ch. D. 102 ; 41 L. T. 571 ; 28 W. R. 268 -------- - 121 Butt, ex p. {see Caldecott, ex p.) Butters, ex p., re Harrison, 1880, 14 Ch. D. 265 ; 43 L. T. 2 ; 28 W. R. 876 130, 131 TABLE OF CASES. Button I'. O'Neill, 1879, 4 C.P. D. 354; 48 L. J., C. P. 368; 40L.T.799; 27 W. R. 592 - - - - - - - 203, 207 Byerley v. Prevost, 1871, L. R., 6 C. P. 144 - - - - 12, 32 Byrne, ex p., re Burdett, 1888, 20 Q. B. D. 310; 57 L. J., Q. B. 263; 58 L. T. 708; 36 W. R. 345 ; 5 Mor. 32 - - - 178, 250, 281 Cadogan D. Kennett, 1776, Cowp. 432 - - - - - 113 Caldecott, ex p. (or ex p. Butt), re Mapleback, 1876, 4 Cli. D. 150; 46 L. J., Bank. 14 ; 35 L. T. 503 ; 25 W. R. 103 ; 13 Cox. C. C. 374 - 120, 126 Calvert r. Thomas, 1887, 19 Q. B. D. 204; 56 L. J., Q. B. 470; 57 L. T. 441 ; 35 W. R. 616 - - - - - - 59, 302, 303 Campion v. Cotton, 1810, 17 Ves. 263 - - - - - 161 Carpenter v. Blandford, 1828, 8 B. & C. 575 ; 3 M. & R. 93 - - 262 Carpenter v. Been, 1889, 23 Q. B. D. 566 ; 61 L. T. 860 - 63, 219, 224, 252, 253 Carr v. Acraman, 1856, 25 L. J., Ex. 90; 11 Ex. 566 - - - 93, 154 Carr v. Allatt, 1858, 27 L. J., Ex. 385 - - - - - 93, 257 Carrard v. Meek, 1880, 50 L. J., Q. B. 187 ; 43 L. T. 760 ; 29 W. R. 244 194, 271 Carter, ex p., re Threappleton, 1879, 12 Ch. D. 908; 41 L. T. 37; 27 W. R. 943- ...... 199, 270, 275 Carter v. Wake, 1877, 4 Ch. D. 605 ; 46 L. J., Ch. 841 - . - 45 Cartwright, e.r p., re Joy, 1881, 44 L. T. 883 - - - - 126 Cartwright r. Regan, 1895, 1 Q. B. 900; 64 L. J., Q. B. 507 - - 300 Casson v. Churchley, 1884, 53 L. J., Q. B. 335 ; 50 L. T. 568 - 22, 198, 199, 249 Castle, ex) p., re Acraman, 1842, 12 L. J., Bank. 30 ; 3 M. D. & D. 17 ; 7 Jur. 47 ------- - 20 Castle V. Downton, 1879, 5 C. P. D. 56; 49 L. J., C. P. 6; 41 L. T. 528; 28 W. R. 257 ....... 207 Central Bank v. Hawkins, 1890, 62 L. T. 901 . - - - 107, 116 Challinor, ex p., re Rogers, 1880, 16 Ch. D. 260; 44 L. T. 122; 29 W. R. 205 - - - - - - - - 274, 275, 279 Chapman v. Beecham, 1842, 12 L. J., Q. B. 42; 3 G. & D. 71 ; 3 Q. B. 723 ; 6 Jur. 968 ------ - 181 Chapman, ex p., re Davey, 1881, 45 L. T. 268, affirming ex p. Wolfe, 44 L. T. 321 - - . . - - - 210 Chapman v. Knight, 1880, 5 C. P. D. 308; 49 L. J., C. P. 425 ; 42 L. T. 538 ; 28 W. R. 907 ; 44 J. P. 491 - - - - 101, 171, 227 Charing Cross Bank, ex p., re Parker, 1880, 16 Ch. D. 35; 50 L. J., Ch. 157 ; 44 L. T. 113 ; 29 W. R. 204 - - - - 274, 275 Charles v. Jones, 1887, 35 Ch. D. 544 ; 56 L. J., Ch. 745 ; 56 L. T. 848 ; 35 W. R. 645 - - - - - - - 60 Charlcsworth v. Mills, 1892, A. C. 231 ; 61 L. J., Q. B. 830; 66 L. T. 690 ; 41 W. R. 129 ; 56 J. P. 628 - - - 18,46,47,51,148,153 Cheney v. Courtoia, 1863, 32 L. J., C. P. 116; 13 C. B. N. S. 643; 7 L. T. 680; 9 Jur. N. S. 1057 - - . . . 238 TABLE OF CASES. Chesworth v. Hunt, 1880, 5 C. P. D. 266 ; 49 L. J., C. P. 507 ; 42 L. T. 774 ; 28 W. R. 815 ; 44 J. P. 605 - - - - - 68 Chidell V. Galsworthy, 1859, 6 C. B. N. S. 471 - - - - 93, 258 Church V. Sage, 1892, 5 R. 140 ; 67 L. T. 800 ; 41 W. R. 175 - - 29 Clark V. Crownshaw, 1832, 3 B. & Ad. 804 - - - - 316 Clarke, in re, Coombe v. Carter, 1887, 36 Ch. D. 348 ; 56 L. J., Ch. 981 ; 57 L. T. 823 ; 36 W. R. 293 - - - - - - 94, 95 Clarkson v. Henderson, 1880, 14 Ch. D. 348; 49 L. J., Ch. 289 ; 43 L. T. 29 ; 28 W. R. 907 - - - - - - - 288 Clater, ex p., re Wilkinson, 1883, 48 L. T. 648 - - - - 118, 119 Clements v. Matthews, 1883, 11 Q. B. D. 808 ; .52 L. J., Q. B. 772 79, 94, 265 Clemson v. Townsend, 1884, 1 C. & E. 418 - - - - 291 Climie v. Wood, 1869, L. R., 4 Ex. 328 ; 38 L. J., Ex. 223 ; 20 L. T. 1012 81, 82, 83 Climpson r. Coles, 1889, 23 Q. B. D. 465 ; 58 L. J., Q. B. 346 ; 61 L. T. 116 ; 38 W. R. 110 - - - - - - - 28, 29 Close, ex p., re Hall, 1884, 14 Q. B. D. 386 ; 54 L. J., Q. B. 43 ; 51 L. T. 795 ; 33 W. R. 228 - - - - - - 46, 148, 164 Clowes V. Hughes, 1870, L. R., 5 Ex. 160 ; 39 L. J., Ex. 62 ; 22 L. T. 103 ; 18 W. R. 459- ....... 181 Coburn v. Collins, 1887, 35 Ch. D. 373 ; 56 L. J., Ch. 504; 56 L. T. 431 ; 35 W. R. 610 Cochrane, ex p., re Barrand (see Leman, ex /j.) .... Cochrane v. Dixon, 1887, 3 T. L. R. 717- .... Cochrane v. Entwistle, 1890, 25 Q. B. D. 116; 59 L. J., Q. B. 418; 62 L. T. 852 ; 38 W. R. 587 - Cochrane v. Matthews, 1878, 10 Ch. D. 80 «, - Cochrane, ex p., re Mead, 1875, L. R., 20 Eq. 282 ; 44 L. J., Bank. 87 ; 23 W. R. 726 - - - - - - - 132 Cochrane v. Moore, 1890, 25 Q. B. D. 57 ; 59 L. J., Q. B. 377 ; 63 L. T. 153 ; 38 W. R. 588 ; 54 J. P. 804 - - - 20, 55, 101, 165, 214, 273 Cochrane r. RymiU, 1879, 40 L. T. 744 ; 27 W. R. 776 - - - 44, 58 Cockayne v. Harrison, 1872, L. R., 13 Eq. 432 ; 41 L. J., Ch. 509 ; 26 L. T. 385 ; 20 W. R. 504 - - - - - . 103 Cohen v. Higgins, 1891, 8 T. L. R. 8 - - - - - 216, 278 Cohen v. Mitchell, 1890, 25 Q. B. D. 262 ; 59 L. J.; Q. B. 409 ; 63 L. T. 206 ; 38 W. R. 551 ; 7 Mor. 207 - - - - - 98, 100 Cohen, ex p., re Sparke, 1871, L. R., 7 Ch. 20 ; 41 L. J., Bank. 17 ; 25 L. T. 475 ; 20 W. R. 69 120, 129, 130, 195 Cole V. Kernot, 1872, L. R., 7 Q. B. 534 n; 41 L. J., Q. B. 221 ; 26 L. T. 693 - - 94,235 Collins, ex p., re Lees, 1875, L. R., 10 Ch. 367 ; 44 L. J., Bank. 78 ; 32 L. T. 106 ; 23 W. R. 862 - - - - -213,214,215,220 Collis V. Tuson, 1882, 46 L. T. 387 - - - - - 277, 284 Collyer v. Isaacs, 1881, 19 Ch. D. 342; 51 L. J., Ch. 14 ; 45 L. T. 567 ; 30 W. R. 70 93, 94, 235 19, 158 77 106, 275 251, 286 33, 40 TABLE OF CASES. PAGE Colombine r. PenhalL 1853. 1 Sm. & Giff. 228 - - - - 161 Colonial Bank r. Whinney, 1SS6, 11 App. Ca. 426: 56 L. J.. Ch. 43 ; 55 L. T. 362 : 34 W. R. 705 : 3 Mor. 2C>T - - - 89 Coltman v. Chamberlain. 1890, 25 Q. B. D. 32S ; 59 L. J.. Q. B. 563 ; 39W. R. 12 - - - - - - - 162 Coltness Iron Co. v. Black, 1881, 6 App. Ca. 315: 51 L. J.. Q. B. 626: 45 L. T. 145; 29 W. R. 717 ; 46 J. P. 20 - - - - 179 Conder, ex p., re Woodham, 1887, 20 Q. B. D. 40; 57 L. J.. Q. B. 46; 5SL. T. 116;36 W. R. 526 . - . . . 79 Condy r. Blaiberg. 1891. 55 J. P. 580 - - - - - 267 Conefly r. Steer. ISSl, 7 Q. B. D. 520; 50 L. J.. Q. B. 326 ; 45 L. T. 402; 29 W. R. 529 - - - - - - - 224. 225 Congrere v. Evetts, 1854, 23 L. J.. Ex. 273 : 10 Ex. 29S; IS Jnr. 655 - 54. 92 Conning, ex p., re Steele, 1873. L. E.. 16 Eq. 414 ; 42 L. J.. Ch. 74 ; 21 W. R. 7&4 - - - - - - - 156, 157 Consolidated Co. r. Curtis, 1892. 1 Q. B. 495; 61 L. J.. Q. B. 325; 40 W. R. 426 ; 56 J. P. 565 - - - - - - 58 Consolidated Credit Corporation i*. Gosney, 1885, 16 Q. B. D. 24 ; 55 L. J., Q. B. 61 ; 54 L. T. 21 ; ^4 W. R. 106 - - 297. 300, 301, 302 Cook 1-. Fowler, 1S74. L. R., 7H. L. 27;43 L. J., Ch. S55 - - 292 Cook r. Taylor, 1887, 3 T. L. R. 800 - - - - 69, 120, 239, 287 Cookson V. Fryer, 1858, 1 F. & F. 328 - - - - - 26, 116 Cookson r. Sirire, 1884, 9 App. Ca. 653 ; 54 L. J.. Q. B. 249 ; 52 L. T. 30 ; 33 W. R. ISl - - - - 1.19,65.149,171,227,242,246 Cooler. Braham. 1848, IS L. J.. Ex. 105; 4 Ex. 183 - - . 116 Cooper, ez p.. re Baum, 1878, 10 Ch. D. 313 ; 48 L. J.. Bank. 40; 39 L. T. 521 : 27 W. R. 298 - - - - 7. 9. 12. 30. 32, 119, 152 Cooper v. Braham. 1867. 15 L. T. 610 - - - 69, 71. 103. 261. 265 Cooper r. Davis. 1884, 32 W. R. 329 ; affirming 48 L. T. 831 - - 211 Cooper r. Huggins (Kendrick claimant). 1889. 34 Sol. J. 96 - - 252 Cooper r. Ibberson. 1881,44 L. T. 309: 29 W. K. .566 - - - 206 Cooper V. WiUomatt, 1845. 14 L. J., C. P. 219 ; 1 C. B. 672 ; 9 Jur. 598 - 44. 71, 265 Cooper r. Zeffert, 1883, 32 W. R. 402 - - - - 197, 202, 233 Cooper, ex p., re Zncco, 1875, L. R.. 10 Ch. 510 ; 44 L. J., Bank. 121 ; 33 L. T. 3 ; 23 W. R. 782 - - - - - - 123 Coote r. Jecks, 1872, L. R., 13 Eq. 597 ; 41 L. J., Ch. 599 - - 163, 243 Coppock r. Bower, 1838, 4 M. i W. 361- - - - - 239 Corbeit v. Rowe, 1876, 25 W. E. 59 - - - - - 212 Corkhill r. Lambert, 1880, 70 L. T. J. 46 - - - - 199 Cort v. Sagar, 1858, 27 L. J., Ex. 378; 3 H. & N. 370 - - - 25,82 Cotton, ex p., 1842, 2 M. D. & D. 725 - - - - - 83 Cotton, ex p., 1883, 11 Q. B. D. 301 ; 49 L. T. 52 ; 32 W. R. 58 ; 47 J. P. 599 - - - - - - - - 246, 266, 268 Coulson V. Dickson, 1890, 25 Q. B. D. 1 10 ; 59 L. J., Q. B. 189 ; 62 L. T. 479 ; 38 ^V. R. 388 - - - - - - 309 TABLE OF CASES. Counsell r. London & Westminster Loan Co., 1887, 19 Q. B. D. 512 ; 56 L. J., Q. B. 622 ; 36 W. K. 53 - - - 63, 216, 218, 219, 220, 221 Courcier r. BardiU, 1883. 27 Sol. J. 276 - - - - - 160 Cowley r. Tvler, 1884, W. X. 77 - - - - - - 269 Cox, ex p., re Beed, 1875. 1 Ch. D. 302 ; 33 L. T. 757 ; 24 W. R. 302 - 22, 315 Cracknall r. Janson, 1877, 6 Ch. U. 735 ; 46 L. J., Ch. 652 ; 37 L. T. 118; 25 W. B. 904 - - - - - - - 70, 132 Cramer v. Giles, 1883, 1 C. & E. 151 - - - - - 42 Cramer v. Mott, 1870, L. K., 5 Q. B. 357; 39 L. J.. Q. B. 172 ; 22 L. T. 857 ; 18 W. E. 947 - - - - - - - 265 Cranfield v. Cranfield, 1889, 23 L. R. Ir. 555 - - - - 158, 190 Crawcour, ex p., re Robertson, 1878, 9 Ch. D. 419 ; 47 L. J.. Bank. 94 ; 39 L. T. 2 ; 26 W. R. 733 ------ 41,154 Crawcour v. Salter, 1881, 18 Ch. D. 30 : 51 L. J., Ch. 495 ; 45 L. T. 62 ; 30 W. R. 21 - - - - - 43, 117, 128, 199, 201, 202, 315 Crawshaw v. Harrison, 1893 [1894], 1 Q. B. 79; 10 E. 60S: 63 L. J., Q. B. 94; 69 L. T. 860; 1 Manson 407 - - - - 26 Credit Co. r. Pott, 1880, 6 Q. B. D. 295 ; 50 L. J.. Q. B. 106 ; 44 L. T. 506 ; 29 W. e! 326 ----- -196,270,271.272 Cremetti r. Crom. 1879. 4 Q. B. D. 225 ; 48 L. J.. Q. B. 337 ; 27 W. R. 411 267 Crew V. Cummings, 1888. 21 Q. B. D. 420; 57 L. J., Q. B. 641 ; 59 L. T. 886 ; 36 W. R. 908 232, 233, 234 Criddle r. Scott, 1895, 11 T. L. R. 222 - - - - - 278 Crosse v. Welch, 1892, 8 T. L. E. 401, 709 - - - - 264 Crosser r. Maxwell, 1885, W. N. 95 - - - - - 285 Crossley, ex p., re Peel. 1894. 1 Ir. Rep. 235 - - - - 43, 128 Calling 1-. Tnffnal. 1694. Bull. X. P. 34 - - - - - 81 Cullwick r. Swindell. 1866. L. R., 3 Eq. 249; 36 L. J., Ch. 173 - - 83 Cumberland Union Banking Co. r. Maryport Hematite Iron and Steel Co., 1892, 1 Ch. 415 ; 61 L. J., Ch. 227; 66 L. T. 108 ; 40 W. R. 280 83 Cummins v. Fletcher. ISSO, 14 Ch. D. 699 ; 49 L. J., Ch. 563 : 42 L. T. 859 ; 28 W. E. 772 - - - - - - - 68 Cundy r. Lindsay, 1878. 3 App. Ca. 459 ; 47 L. J., Q. B. 481 ; 38 L. T. 573 ; 26 W. E. 406 - - - - - - - 99 Cunningham & Co., in re. Attenborough's case, 1885, 28 Ch. D. 682 ; 54 L. J., Ch. 448 ; 52 L. T. 214 ; 33 W. E. 387 - - - 47, 319 Curtis V. National Bank of Wales. 1889. 5 T. L. E. 338 - - - 283, 295 DagUsh, ex p., re Wilde, 1873, L. E., 8 Ch. 1072 ; 42 L. J., Bank. 102 ; 29 L. T. 168 ; 21 W. E. 893 - - - - 85, 87, 88, 89, 185, 187 Daines r. Heath, 1846, 16 L. J., C. P. 117 ; 3 C. B. 938 - - - 191 Daniel, re, 1855, 25 L. T. 188 - - - - - - 314 Daniell v. Sinclair, 1881, 6 App. Ca. 181 ; 50 L. J., P. C. 50; 44 L. T. 257;29 W. E. 569 ------- 2SS b TABLE OF CASES. PAGE Dann, ex p., re Parker, 1881, 17 Cli. D. 26 ; 51 L. J., Ch. 290; 44 L. T. 760; 29 W. R. 771 ------ 119,120,133 Darby v. Harris, 1841, 1 Q. B. 895 ; 1 G. & D. 234 ; 5 Jur. 988 - - 82 Darvill v. Terry, 1861, 30 L. J., Ex. 355 ; 6 H. & N. 807 - - 109, 200 Daubuz V. Lavington, 1884, 13 Q. B. D. 347 ; 53 L. J., Q. B. 283 ; 51 L. T. 206 ; 32 W. R. 772 - - - - - - 182 Davidson v. Carlton Bank, 1892 [1893], 1 Q. B. 82 ; 4 R. 100; 62 L. J., Q. B. Ill ; 67 L. T. 641 ; 41 W. R. 132 - - - - 200, 253 Davies v. Davies, 1879, 4 L. R. Ir. 330 - - - - - 313 Davies v. Jones, 1862, 7 L. T. 130 ; 10 W. R. 779 - - - 166 Davies v. Rees, 1886, 17 Q. B. D. 408 ; 55 L. J., Q. B. 363 ; 54 L. T. 813 ; 34 W. R. 573 - - - - - - 219, 280, 281 Davies, ex p., re Sadler, 1881, 19 Ch. D. 86 ; 45 L. T. 632; 30 W. R. 237 132 Davies v. Williams, 1843, 7 Jur. 663 - - - - - 72 Davis V. Burton, 1883, 11 Q. B. D. 537 ; 52 L. J., Q. B. 636 ; 32 W. R. 423 - - - 282, 286, 288, 289, 290, 292, 304, 305, 306 Davis V. Goodman, 1880, 5 C. P. D. 128; 49 L. J., C. P. 344 ; 42 L. T. 288 ; 28 W. R. 559 - - - - - - 158, 188, 189, 199 Davis V. Usher, 1884, 12 Q. B. D. 490 ; 53 L. J., Q. B. 422 ; 51 L. T. 297 ; 32 W. R. 832 - - - - - - - 312 Dean v. Whittaker, 1824, 1 C. & P. 347 - - - - - 42 Deffell V. Miles, 1866, 15 L. T. 293 - - - - - 318 DefEell v. White, 1866, L. R., 2 C. P. 144 ; 36 L. J., C. P. 25 ; 15 L. T. 211 ; 15 W. R. 68 ; 12 Jur. N. S. 902 - - - - - 213, 318 D'Epineuil, in re, Tadman v. D'Epineuil, 1882, 20 Ch. D. 758 ; 47 L. T. 157 ; 30 W. R. 702 - - - - - - - 94, 95 D'Epineuil, m re, 1882, 20 Ch. D. 217 ; 51 L. J., Ch. 491 ; 46 L. T. 409 ; 30 W. R. 423 - - - - - - - 190 Dewey v. Bayntun, 1805, 6 East 257 - - - - - 23, 113 Dickin, ex p., re Pollard, 1878, 8 Ch. D. 377; 48 L. J., Bank. 36; 38 L. T. 860; 26 W. R. 731 ------ 131 Dickin, ex p., re Waugh, 1876, 4 Ch. D. 524; 46 L. J., Bank. 26; 35 L. T. 769 ; 25 W. R. 258 - - - - - - 27 Discount Banking Co. v. Lambarde, 1893, 2 Q. B. 329 ; 4 R. 537 ; 63 L. J., Q. B. 21 ; 69 L. T. 223 ; 42 W. R. 50 - - - - 268 Dobbin's Settlement, in re, 1887, 56 L. J., Q. B. 295; 57 L. T. 277 234 Doe d. Roberts v. Roberts, 1819, 2 B. & A. 367 - - - - 110 Doe V. Murless, 1817, 6 M. & S. 110 - - - - - 26 Doe V. Thorn, 1813, 1 M. & S. 425 - - - - - 26 Dolcini v. Dolcini, 1895, 1 Q. B. 898 ; 11 T. L. R. 344 - - - 284 Dorman, ex p., re Lake, 1872, L. R., 8 Ch. 51 ; 42 L. J., Bank. 20; 27 L. T. 528 ; 21 W. R. 94 - - - - - - 127 Douglas V. Douglas, 1869, 22 L. T. 127 ----- 20 Dowling V. Steward, 1885, W. N. 98 - - - - - 25 TABLE OF CASES. 23 306 PAGE Downs V. Salmon, 1888, 20 Q. B. D. 775 ; 57 L. J., Q. B. 45-t; 59 L. T. 374 ; 36 W. R. 810 - - - - - - - 107, 209 Dresser v. Townsend, 1886, 81 L. T. J. 230 - - - - 293 Dryden v. Hope, 1860, 3 L. T. 280 ; 9 W, R. 18 - - - - 207 Duck V. Braddyll, 1824, 13 Price 455 ; McClel. 217 - Duff V. Valentine, 1883, W. N. 225 - Duffil V. Spottiswoode, 1828, 3 C. & P. 435 - - - - 42 Dumergue v. Rumsey, 1863, 33 L. J., Ex. 88 ; 2 H. & C. 777 ; 9 L. T. 775 ; 12 W. R. 205 ; 10 Jur. N. S. 155 - - - - 82 Duncan v. Cashin, 1875, L. R., 10 C. P. 554 ; 44 L. J., C. P. 396 ; 32 L. T. 497 ; 23 W. R. 561 - - - - - - - 75 Dutton V. Morrison, 1810, l7 Ves. 193 ; 1 Rose 213 - - - 160 Dyer v. Green, 1847, 1 Ex. 71 ; 16 L. J., Ex. 239 - - - 23 Eadon v. Jeffcock, 1872, L. R., 7 Ex. 379 ; 42 L. J., Ex. 36 ; 28 L. T. 273; 20 W. R. 1033 ------- 179 Eastern and Midlands Railway Co., in re, 1891, 8 T. L. R. 34 - - 34 Eastwood V. Brown, 1825, R. & M. 312 - - - - - 115 Eatough, ex p., re Cliffc, 1880, 42 L. T. 95 ; 28 W. R. 433 - - 131 Edey, ex p., re Cuthbertson, 1875, L. R., 19 Eq. 264 ; 44 L. J., Bank. 55 ; 31 L. T. 851 ; 23 W. R. 519 - - - - - 129, 314 Edmonds r. Blaina Furnaces Co., 1887, 36 Ch. D. 215 ; 56 L. J., Cli. 815; 57 L. T. 139 ; 35 W. R. 798 - - - - - 320 Edmunds v. Wallingford, 1885, 14 Q. B. D. 811; 54 L. J., Q. B. 305; 52 L. T. 720; 33 W. R. 647 ; 49 J. P. 549 - - - - 264 Edwards v. Edwards, 1876, 2 Ch. D. 291 ; 45 L. J., Ch. 391 ; 34 L. T. 472 ; 24 W. R. 713 - - - - 54, 61, 157, 168, 189, 193, 226 Edwards v. English, 1857, 26 L. J., Q. B. 193 ; 7 E. & B. 564; 3 Jur. N. S. 934 76, 190 Edwards v. Harben, 1788, 2 T. R. 587 - - - - - 115 Edwards v. Marcus, 1894, 1 Q. B. 587 ; 9 R. 337 ; 63 L. J., Q. B. 363 ; 70 L. T. 182 ; 1 Manson 70 - . . 214, 215, 219, 220, 221 Edwards v. Marston, 1890 [1891], 1 Q. B. 225; 60 L. J., Q. B. 202; 64 L. T. 97 ; 39 W. R. 165 - - - • - - 58, 283, 294 Edwick V. Hawkes, 1881, 18 Ch. D. 199 ; 50 L. J., Ch. 577 ; 45 L. T. 168 ; 29 W. R. 913 - - - - - - - 302 Elliott V. Freeman, 1863, 7 L. T. 715 - - - - - 270 Ellis, ex p., re Ellis, 1876, 2 Ch. D. 797 ; 45 L. J., Bank. 159 ; 34 L. T. 705 1 20, 121 Emerson, ex p., re Hawkins, 1871, 41 L. J., Bank. 20; 20 W. R. 110 - 43 Emmanuel v. Bridger, 1874, L. R., 9 Q. B. 286; 43 L. J., Q. B. 96; 30L. T. 194;22 W. R. 404 - . - . - . 168 Emmott V. Marchant, 1878, 3 Q. B. D. 555 ; 38 L. T. 508 (sub. nom. Halkett v. Emmott, 47 L. J., Q. B. 436 ; 26 W. R. 632) - - 237 England r. Cowley, 1873, L. R., 8 Ex. 126 ; 42 L. J., Ex. 80 ; 28 L. T. 67 ; 21 W. R. 337 - - - - - - - 265 TABLE OF CASES. PAGE England v. Downs, 1840, 2 Beav. 522 ; 9 L. J., Ch. 313 ; 4 Jur. 526 - 23 England v. Marsden, 1865, L. R., 1 C. P. 529; 35 L. J., C. P. 259; 14 L. T. 405 ; 14 W. R. 650 ; 12 Jur. N. S. 706 - - - 264 Evans v. Roberts, 1826, 5 B. & C. 829 ; 8 D. & R. 611 - - - 78, 79 Evans v. Wright, 1857, 27 L. J., Ex. 50 ; 2 H. & N. 527 - - - 264 Eveleigh v. Purssord, 1844, 2 M. & Rob. 539 - - - - 115 Farnham, in re, 1895, 64 L. J., Ch. 717 ; 73 L. T. 231 ; 11 T. L. R. 556 - 124 Farrar r. Farrars, Limited, 1888, 40 Ch. D. 395 ; 58 L. J., Ch. 185 ; 60L. T. 121; 37 W. R. 196 ..... 61 Fawcett v. Fearne, 1844, 6 Q. B. 20; 13 L. J., Q. B. 30; 8 Jur. 645 - 263 Feast V. Robinson, 1894, 63 L. J., Ch. 321 ; 8 R. 531 ; 70 L. T. 168 - 208 Fenn v. Bittleston, 1851, 21 L. J., Ex. 41 ; 7 Ex. 152 . - 71, 261, 265 Fenton v. Blythe, 1890, 25 Q. B. D. 417; 59 L. J., Q. B. 589 ; 63 L. T. 453 ; 39 W. R. 79 - - - . . . 196, 229, 254 Fewings, ex p., re Sneyd, 1883, 25 Ch. D. 338 ; 53 L. J., Ch. 545 ; 50 L. T. 109 ; 32 W. R. 352 - . - - . - 61 Finlay, ex %>., re Linton, 1893, 10 Mor. 258 . - - - 286 Firth, exp., re Cowburn, 1882, 19 Ch. D. 419 ; 51 L. J., Ch. 473 ; 45 L. T. 120 ; 30 W. R. 529 ...... 171,274,277 Fisher, ex p., re Ash, 1872, L. R., 7 Ch. 636 ; 41 L. J., Bank. 62 ; 26 L. T. 931 ; 20 W. R. 849 - . - - - - - 120, 121 Fitzgerald's Trustees v. Mellersh, 1892, W. N. 4 - - . 239 Fitzpatrick, re, 1886, 19 L. R. Ir. 206 - - . - - 207, 211 Fleet V. Perrins, 1869, L. R., 4 Q. B. 500 ; 38 L. J., Q. B. 257 ; 20 L. T. 814 ; 17 W. R. 862 ; 9 B. & S. 575 - - - - - 89 Fletcher, ex p., re Bainbridge, 1878, 8 Ch. D. 218 ; 47 L. J., Bank. 70 ; 38 L. T. 229 ; 26 W. R. 439 - . - - - . 90, 127 Fletcher, ex p., re Hart (1), 1878, 9 Ch. D. 381 ; 39 L. T. 187 ; 26 W. R. 843 ----...- - 131,132 Fletcher, ex p., re Hart (2), 1879, 10 Ch. D. 610; 27 W. R. 622 - 132 Fletcher, ex p., re Henley, 1877, 5 Ch. D. 809 ; 46 L. J., Bank. 93 ; 37 L. T. 758; 25 W. R. 573 ...... 169,192,241 Fletcher v. Manning, 1844, 12 M. & W. 571 ; 13 L. J., Ex. 150 ; 1 C. & K. 350 129 Fletcher v. Marillicr, 1839, 9 A. & E. 457 ; 1 P. & D. 354 ; 2 W. W. & H. 14 265 Flory V. Denny, 1852, 21 L. J., Ex. 223 ; 7 Ex. 581 - . 53, 81, 153 Foley, ex p., re Spackman, 1890, 24 Q. B. D. 728; 59 L. J., Q. B. 306 ; 62 L. T. 849; 38 W. R. 497 ; 7 Mor. 100 - . . - 118, 160 Fonblanque v. Lee, 1858, 7 Ir. C. L. Rep. 550; 3 Ir. Jur. N. S. 224 - 213 Ford V. Kettle, 1882, 9 Q. B. D. 139 ; 51 L. J., Q. B. 558 ; 46 L. T. 666 ; 30 W. B. 741 ...... 199, 202, 213 Ford, ex p., re Caughey, 1876, 1 Ch. D. 521 ; 45 L. J., Bank. 96 ; 34 L. T. 634 ; 24 W. R. 590 - - . . . . . 99 Foss, ex p., re Baldwin, 1858, 27 L. J., ]5ank. 17; 2 Dc G. & J. 230; 4 Jur. N. S. 522 - - . - . . . 129 TABLE OF CASES. PAGE Foulger v. Taylor, 1859, 29 L. J., Ex. 154 ; 5 H. & N. 202 ; 1 L. T. 57 - lOG, 202 Fourdrinier, ex p., re Artistic Colour Printing Co., 1882, 21 Ch. D. 510 ; 48L. T. 46;3l W. R. 149 - - - - - -76,191 Fowler t'. Foster, 1859, 28 L. J., Q. B. 210; 5 Jur. N. S. 99 - - 22,160 Foxley, ex p., re Nurse, 1868, L. R., 3 Ch. 515 ; 18 L. T. 862 ; 16 W. R. 831 -------- - 119, 120 Franklin v. Neate, 1844, 13 M. & W. 481 ; 14 L. J., Ex. 59 - - 45 Eraser r. Thompson, 1859, 4 De G. & J. 659 - - - - 161 Freeman r. Cooke, 1848, 2 Ex. 654; 18 L. J., Ex. 114; 12 Jur. 777 - 97 Freeman v. Edwards, 1848, 17 L. J., Ex. 258 ; 2 Ex. 732 - - 154, 181 Freeman v. Pope, 1870, L. R., 5 Ch. 538 ; 39 L. J., Ch. 689 ; 21 L. T. 816 ; 18 W. R. 906 ------ 111,112,113 French v. Bombernard, 1888, 60 L. T. 48 - - - - - 10, 37 French v. French, 1856, 25 L. J., Ch. 612 ; 6 De G. M. & G. 95 ; 2 Jur. N. S. 169 - - - - - - - - 111 Freshney v. Carrick (or Wells), 1857, 26 L. J., Ex. 129 ; 1 H. & N. 653 - 82, 314 Furber v. Abrey, 1883, 1 C. & E. 186 - - - - 277,306, 307 Fui-ber v. Cobb, 1887, 18 Q. B. D. 494 ; 56 L. J., Q. B. 273 ; 56 L. T. 689 ; 35 W. R. 398 - 253, 266, 280, 283, 296, 300, 301, 303, 304, 306, 307, 308 Furber, ex p., re Parsons, 1893, 2 Q. B. 122 ; 4 R. 374 ; 62 L. J., Q. B. 365; 68 L. T. 777 ; 41 W. R. 468 - - - - - - 234 Furber, ex p., re Pellew, 1877, 6 Ch. D. 181 ; 36 L. T. 668 - - 195, 216 Furnivall v. Hudson, 1892 [1893], 1 Ch. 335 ; 3 R. 230 ; 62 L. J., Ch. 178 ; 68 L. T. 378 ; 41 W. R. 358 - - - - 55, 105, 291 Gadsden v. Barrow, 1854, 9 Ex. 514 ; 23 L. J., Ex. 134 - - - 76 Gale V. Burnell, 1845, 14 L. J., Q. B. 340 ; 7 Q. B. 850; 10 Jur. 198 - 71, 91 Gale V. Williamson, 1841, 8 M. & W. 405 - - - - 114 Games, ex p., re Bamford, 1879, 12 Ch. D. 314 ; 40 L. T. 789 ; 27 W. R. 744 - - - - - - - - - 113,126 Gapp V. Bond, 1887, 19 Q. B. D. 200; 56 L. J., Q. B. 438; 57 L. T. 437; 35 W. R. 683 - - - - - - - 35, 162 Gardner v. Smart, 1883, 1 C. & E. 14 - - - - - 204 Gardner r. Shaw, 1871, 24 L. T. 319 ; 19 W. R. 753 - - - 200 General Furnishing Co. v. Venn, 1863, 32 L. J., Ex. 220; 2 H. & C. 153; 8 L. T. 432 ; 11 W. R. 756 ; 9 Jur. N. S. 550 ... 159 Gibbons v. Hickson, 1885, 55 L. J., Q. B. 119; 53 L. T. 910; 34 W. R. 140 -------- - 170 Gibbs V. Cruikshank, 1873, 28 L. T. 104 - - - - 181 Gibbs V. Parsons, 1887, L. J., N. C. 96 - - - - - 304 Gilroy v. Bowey, 1888, 59 L. T. 223 - - - - - 263, 307 Gladstone v. Padwick, 1871, L. R., 6 Ex. 203 ; 40 L. J., Ex. 154 ; 25 L. T. 96 ; 19 W. R. 1064 ...... 114 Goidstrom v. Tallerman, 1886, 18 Q. B. D. 1, reversing 17 Q. B. D. 80; 56 L. J., Q. B. 22 ; 55 L. T. 866 ; 35 W. R. 68 - 67, 288, 292, 293, 294, 298, 299 TABLE OF CASES. PAGE Gordon v. Harper, 1796, 7 T. R. 9 ; 2 Esp. 465 ... 42, 261 Goss t'. Neale, 1820, 5 Moore 19 ..... 114 Gough V. Everard, 1863, 32 L. J., Ex. 210 ; 2 H. & C. 1 ; 8 L. T. 363 ; 11 W. R. 702 - - - - - - 166, 167, 170 Gough V. Wood, 1894, 1 Q. B. 713 ; 9 R. 509 ; 63 L. J., Q. B. 564 ; 70 L. T. 297;42 W. R. 469 ...... 83 Gowan v. Christie, 1873, L. R., 2 Sc. App. 273 - - - . l79 Grace v. Gard, 1889, 6 T. L. R. 74 - - - - . 16 Graham v. Chapman, 1852, 21 L. J., C. P. 173 ; 12 C. B. 85 - - 119 Graham v. Furber (1), 1854, 23 L. J., C. P. 10; 14 C. B. 134; 18 Jur. 61 130 Graham v. Furber (2), 1854, 23 L. J., C. P. 51 ; 14 C. B. 410; 18 Jur. 226;2C. &P. 452 - - - - - - - 111,116 Graham t'. Wilcockson, 1876, 46 L. J., Ex. 55 ; 35 L. T. 601 - . 12, 32 Grannell v. Monck, 1889, 24 L. R. Ir. 241 - - - . 291 Grant v. Shaw, 1872, L. R., 7 Q. B. 700 ; 41 L. J., Q. B. 305 ; 27 L. T. 602 210 Grantham v. Hawley, 1615, Hob. 132 - - - - - 92, 257 Graves, re, 1883, 27 Sol. J. 215 - - - - - - 67, 268 Gray v. Jones, 1863, 14 C. B. N. S. 743 - - - - - 208 Great Northern Railway Co. v. Coal Co-operative Society, 1895, 12 T. L. R. 30 - - - - - - - 323 Greaves v. Tofield, 1880, 14 Ch. D. 563 ; 43 L. T. 100 ; 28 W. R. 840 - 226 Green v. Attenborough, 1864, 34 L. J., Ex. 88 ; 3 H. & C. 468 ; 11 L. T. 513 ; 13 W. R. 185 ; 11 Jur. N. S. 141 - - - - 23 Green v. Marsh, 1892, 2 Q. B. 330; 61 L. J., Q. B. 442; 66 L. T. 480; 40 W. R. 449 ; 56 J. P. 839 - 42, 155, 174, 176, 179, 181, 182, 183, 247, 281 Greenham v. Child, 1889, 24 Q. B. D. 29 ; 59 L. J., Q. B. 27 ; 61 L. T. 563 ; 38 W. R. 94 - - - - - - - 206, 207 Gregg V. Wells, 1839, 10 A. & E. 90 ; 2 P. & D. 296 - - - 97 Griffin v. Union Deposit Bank, 1887, 3 T. L. R. 608 217, 219, 250, 279, 281, 309 Griffith V. Blake, 1884, 27 Ch. D. 474 ; 53 L. J., Ch. 965 ; 51 L. T. 274; 32 W. R. 833 - - - - - - - 62 Griffith, ex p., re Wilcoxon, 1883, 23 Ch. D. 69; 52 L. J., Ch. 7l7; 48 L. T. 450 ; 31 W. R. 878 - - - - - - 122 Griffith t'. Williams, 1892, 93 L. T. J. 8 - - - - - 273, 284 Grigg 1'. National Guardian Assurance Co., 1891, 3 Ch. 206; 61 L. J., Ch. 11; 64 L. T. 787 ; 39 W. R. 684 - - - - - 50, 164 Grindell v. Brendon, 1859, 28 L. J., C. P. 333; 6 C. B. N. S. 698 ; 33 L. T. 224 ; 7 W. R. 579 ; 5 Jur. N. S. 1420 - - - 200, 237 Groves v. Wright, 1856, 2 K. & J. 347 - - - • - 103 Gugen V. Sampson, 1866, 4 F. & F. 974 - - - - . 210 Gummer v. Adams, 1843, 13 L. J., Ex. 40 - - - - 196 Ihuldcn V. Oppenhcim, 1889, 00 L. T. 962 .... 285 Hadley r. Bccdom, 1895, 1 Q. B. 646 ; 64 L. J., Q. B. 2 10 ; 72 L. T. 493 ; 43W. R. 218 ....... 160 TABLE OF CASES. ^^^^ PAGE Hale V. Metropolitan Saloon Omnibus Co., 1859, 28 L. J., Ch. 777; 4 Drew. 492; 7 W.R. 316 ----- 11,113,114,115 Halifax &c. Bank v. Gledhill, 1890 [1891], 1 Ch. 31 ; 60 L. J., Ch. 181 ; 63 L. T. 623 ; 39 W. R. 104 - - - - - " \^^ Halkett r. Emmott (see Emmott v. Marchant) - - - - Hall V. Comfort, 1886, 18 Q. B. D. 11 ; 56 L. J., Q. B. 185; 55 L. T. 550; ^^^ 35 W. R. 48 - - - ■ - ■ " T rr Hall, ex p., re Cooper, 1882, 19 Ch. D. 580 ; 51 L. J., Ch. 556 ; 46 L. T. ^^^ 549 ---■-'"'" Hall, ex p., re Jackson, 1877, 4 Ch. D. 682 ; 46 L. J., Bank. 39 ; 35 L. T. 947;25W. R. 382 ------- ^ Hall t;. Smith, 1887, W. N. 170 ; 3 T. L. R. 805 - - - - Hall, ex p., re Townsend, 1880, 14 Ch. D. 132 ; 42 L. T. 162 ; 28 W. R. ^^ ^^^ 556 -■---""" '' Hall, ex p., re Wood, 1883, 23 Ch. D. 644 ; 52 L. J., Ch. 907 ; 49 L. T. 275 ; 32 W. R. 179 - - - - " " . ' Hallas V. Robinson, 1885, 15 Q. B. D. 288 ; 54 L. J., Q. B. 364 ; 33 ^ . R. ^^^ 426 - - - - ■ " " ■ " ' ' 8Q Hallen r. Runder, 1834, 1 C. M. & R. 266; 3 Tyr. 959 - - ^ Hailing, ex p., re Haydon, 1877, 7 Ch. D. 157 ; 47 L. J., Bank. 25 ; 3. L. T. 809 ; 26 W. R. 182 ------ Hamilton v. Chaine, 1881, 7 Q. B. D. 319 ; 50 L. J., Q. B. 456 ; 44 L. T. 764;29W. R. 676 - - - - " "_ , " Hamlyn v. Betteley, 1880, 5 C. P. D. 327 ; 49 L. J., C. P. 465 ; 42 L. T. 373 ; 28 W. R. 956 ; 44 J. P. 411 . - - - - Hammond v. Hocking, 1884, 12 Q. B. D. 291; 53 L. J., Q. B. 205; ^^^ 50 L. T. 267 - - - ' „„' ' ' onV ■i^A Hams, re, 1859, 10 Ir. Ch. Rep. 100 ; 1 L. T. N. S. 46/ - - 204, 314 Hance r. Harding, 1888, 20 Q. B. D. 732 ; 57 L. J., Q. B. 403 ; o9 L. T. 659; 36 W.R. 629 -----■" J Hansard Union, tn re, 1892, 8 T. L. R. 280 - - ' ^ ' Harding, ex p., re Fairbrother, 1873, L. R., 15 Eq. 223 ; 42 L. J., Bank 30;28L.T.241 - - - - " " 314, 31o, 31b Harding r. Tingey, 1865, 34 L. J., Ch. 13 ; 10 L. T. 328 ; 12 ^\ . R. 684 ; 10 Jur. N. S. 872 - - - " ' ■ ' Harris v. Birch, 1842, 9 M. & W. 591 ; 1 Dowl. N. S. 899 - - 49 Harris, ex p., re James, 1874, L. R., 19 Eq. 253 ; 44 L. J., Bank. 31 ; 31 L. T. 21 ; 23 W. R. 536 - Harris, ex p., re Palling, 1872, L. R., 8 Ch. 48 ; 42 L. J., Bank. 9 ; 27 L. T. 501; 21 W.R. 44 ------- ^Z^/ tf, Harris v. Rickett, 1859, 28 L. J., Ex. 197 ; 4 H. & N. 1 - - o4, 121 Harrison, ex p., re Betts, 1881, 18 Ch. D. 127 ; 50 L. J., Ch. 832 ; 45 L. T. 290; 30 W.R. 38 - - - - ' ' ^- ^^^' ^^^ Harrison r. Blackburn, 1864, 34 L. J., C. P. 109; 17 C. B. N. S. 6/8; 11 L. T. 453 ; 13 W. R. 135 ; 10 Jur. N. S. 1131 - - - ^^ xxiv TABLE OF CASES. PAGE Harvey, ex p., re Player, 1885, 54 L. J., Q. B. 553 ; 53 L. T. 768 - 124 Haslewood t'. Consolidated Credit Co., 1890, 25 Q. B. D. 555 ; 60 L. J., Q. B. 13 ; 63 L. T. 71 ; 39 W. E. 54 - - - 283, 292, 293 Hasluck, ex p., re Bargen, 1894, 1 Q. B. 444; 10 R. 74; 63 L. J., Q. B. 209 ; 69 L. T. 763 ------ 197,231,294,295 Hattersley, ex p., re Blanshard, 1878, 8 Ch. D. 601 ; 47 L. J.. Bank. 113 ; 38 L. T. 619 ; 26 W. R. 636 - - - - - 42, 43 Hatton V. English, 1857, 26 L. J., Q. B. 161 ; 7 E. & B. 94; 3 Jur. N. S. 294, 934 7i "^ - - - - - - - - 207 Hauxwell, ex p., re Hemingway, 1883, 23 Ch. D. 626 ; 52 L. J., Ch. 737 ; 48L. T. 742;31 W. R. 711 - - - 54,119,121,156,194 Hawker, ex p., re Keeley, 1872, L. R., 7 Ch. 214 ; 41 L. J., Bank. 34 ; 26 L. T. 54; 20 W. R. 322 ------ 119 Hawtrey v. Butlin, 1873, L. R., 8 Q. B. 290 ; 42 L. J., Q. B. 163 ; 28 L. T. 532 ; 21 W. R. 633 - . - - - 85, 87, 185 Hay V. Nathan, 1886, 3 T. L. R. 11 - - - - - 19 Haydon v. Brown, 1888, 59 L. T. 810 - - - - - 15, 17 Hazlehurst, ex p., re Bcswick, 1888, 58 L. T. 591 ; 5 Mor. 105 - - 131 Heath r. Cochrane, 1877, 46 L. J., Q. B. 727 ; 37 L. T. 280 - - 120 Helby r. Matthews, 1895, A. C. 471, reversing [1894] 2Q. B. 262; 64 L. J., Q. B. 465 ; 72 L. T. 841 ; 43 W. R. 561 ; 11 T. L. R. 446 - 44 Hellawell v. Eastwood, 1851, 20 L. J., Ex. 154 ; 6 Ex. 295 - - 80, 82 Helsham v. Barnett, 1873, 21 W. R. 309 - - - - 55 Hemp V. Garland, 1843, 4 Q. B. 519 ; 12 L. J., Q. B. 134 ; 3 G. & D. 402; 7 Jur. 302 ------- - 62 Hermann r. Hodges, 1873, L. R., 16 Eq. 18 ; 43 L. J., Ch. 192 ; 21 W. R. 571 55 Hernaman v. Bowker, 1856, 11 Ex. 760 - - - - - 26 Heseltine v. Simmons, 1892, 2 Q. B. 547 ; 62 L. J., Q. B. 5 ; 67 L. T. 61] ; 41 W. R. 67 - - - 191, 214, 220, 221, 249, 275, 280, 284, 297 Hetherington v. Groome, 1884, 13 Q. B. D. 789 ; 53 L. J., Q. B. 577 ; 51 L. T. 412 ; 33 W. R. 103 - ----- 291,302 Hewer v. Cox, 1860, 30 L. J., Q. B. 73 ; 3 L. T. 508 ; 9 W. R. 143 ; 6 Jur. N. S. 1339 ------ 203, 205, 206 Hickley r. Greenwood, 1890, 25 Q. B. D. 277 ; 59 L. J., Q. B. 413 ; 63 L. T. 288 ; 38 W. R. 686 - - - - - 58, 204, 252, 309 Hickson v. Darlow, 1883, 23 Ch. D. 690 ; 48 L. T. 449; 31 W. R. 417 - 60, 62, 246 Hill, in re, 1875, 1 Ch. D. 503 n - . - - Hill, in re, Ofificial Receiver v. Ellis, 1895, 2 Msnison 208 Hill V. Kirkwood, 1880, 42 L. T. 105 ; 28 W. R. 358 Hill, ex p., re Bird, 1883, 23 Ch. D. 695; 52 L. J., Ch. 903; 49 L. T. 32 W. R. 177 Hill, ex p., re Lane, 1886, 17 Q. B. D. 74 ; 3 Mor. 148 - Hillman, ex p., re Pumfrey, 1879, 10 Ch. D. 622 ; 48 L. .1., Bunk. 40 L. T. 177 ; 27 W. R. 567 - Hills V. Shcphcnl, 1858, 1 F. & F. 191 ... - - 43 - 287, 291 - 60, 199 278; 122 251 286, 311 77; 124 189 TABLE OF CASES. - 122, 161 114 199 146; 26 , 80, 81, 85 , 86, 186 193, 194, 238 R. 132 ; 112, 113 7 L T. - - 93 ,94, 165 1078 5-i, 156, 315 PAGE Hilton V. Tucker, 1888, 39 Ch. D. 669 ; 57 L. J., Ch. 973; 59 L. T. 172; 36 W. R. 762 ... - . . . - 49 Hirst, ex p., re Wherly, 1879, 11 Ch. D. 278 - - - - 132 Hoare v. Parker, 1788, 2 T. R. 376 - - - - - 102 Hockey v. Evans, 1887, 18 Q. B. D. 390 ; 56 L. J., Q. B. 253 ; 56 L. T. 179 ; 35 W. R. 265 - - . - - - - 267 Hodgkin, eje p. (or Winter, ex p.), re Softley, 1875, L. R., 20 Efi. 746 ; 44 L. J., Bank. 107 ; 33 L. T. 62 ; 24 W. R. 68 Holbird v. Anderson, 1793, 5 T. R. 235 - Holdgate r. Slight, 1851, 21 L. J., Q. B. 74 ; 2 L. M. &. P. 662 - Holland v. Hodgson, 1872, L. R., 7 C. P. 328; 41 L. J., C. P. 146; 26 L. T. 709 ; 20 W. R. 990 - - - - 27 Hollingsworth r. White, 1862, 6 L. T. 604 ; 10 W. R. 619 Holmes v. Penney, 1856, 26 L. J., Ch. 179 ; 3 K. & J. 90 ; 5 W. 3 Jur. N. S. 80 - Holroyd v. Marshall, 1862, 10 H. L. C. 191 ; 33 L. J., Ch. 193 ; 172 ; 11 W. R. 171 ; 9 Jur. N. S. 213 . . Homan, ex p., re Broadbent, 1871, L. R., 12 Eq. 598 ; 19 W. R. Hoole V. Smith, 1881, 17 Ch. D. 434; 50 L. J., Ch. 576; 45 L. T. 38 ; 29 W. R. 601 - - - - . - - 61 Hooman, ex p., re Vining, 1870, L. R., 10 Eq. 63 ; 39 L. J., Bank. 4 ; 22 L. T. 179 ; 18 W. R. 450 - - - - - - 167, 209 Hooper v. Ker, 1884, 76 L. T. J. 307 - - - - - 34, 35, 37 Hooper t-. Parmenter, 1862, 10 W. R. 648 - - - . 212 Hopcraft, ex p., re Flavell, 1865, 14 W. R. 168 - - - - 155 Hope V. Hayley, 1856, 25 L. J., Q. B. 155 ; 5 E. & B. 830; 2 Jur. N. S. 486 ........ 92 Hopkinson r. Rolt, 1861, 34 L. J., Ch. 468 ; 9 H. L. C. 514; 7 Jur. N. S. 1209 ....... Horn r. Baker, 1808, 9 East 215 ; 2 Sm. L. C. 245 Home V. Hughes, 1881, 6 Q. B. D. 676 ; 44 L. T. 678; 29 W. R. 576 ; 45 J. P. 604 - Hornidge v. Cooper, 1858, 27 L. J., Ex. 314 Hornsby v. Miller, 1858, 28 L. J., Q. B. 99 ; 1 E. & B. 192 ; 5 Jur. N. S. 938 Horsfall r. Key, 1848, 17 L. J., Ex. 266 ; 2 Ex. 778 Horsford v. Webster, 1835, 1 C. M. & R. 696 ; 5 Tyr. 409 ; 1 Gale 1 Horsley v. Style, 1893, 69 L. T. 222 ; 4 R. 574 - Howes V. Ball, 1827, 7 B. & C. 481 ; 1 M. & R. 288 Hubbard, ex p., re Hardwick, 1886, 17 Q. B. D. 690 ; 55 L. J., Q. B. 490; 59 L. T. 172 w ; 35 W. R. 2 ; 3 Mor. 246 - . 45, 46, 47, 50, 51, 148, 151, 153, 156, 164, 280 Hue r. French, 1857, 26 L. J., Ch. 317 ; 3 Drew. 716 ; 3 Jur. N. S. 428 - 111 Hughes V. Little, 1886, 18 Q. B. D. 32 ; 56 L. J., Q. B. 96 ; 55 L. T. 476 ; 35 W. R. 36 ..... 153, 273, 280, 287, 291 Hunt, ex p., re Canii, 1884, 13 Q. B. D. 36 .... 275 69 - 82 ' 66 - 26 ^ 127, 314 82, 84, 152 263 41, 189, 269 - 153, 154 TABLE OF CASES. PAGE Hunt V. Hunt, 1885, 54 L. J., Ch. 289 - • - - - 62 Hunter v. Parker, 18-40, 7 M. & W. 322 .... 98 Hunter v. Turner, 1875, 32 L. T. 556 ; 23 W. R. 792 - - - 75, 77, 194 Hutchinson v. Kay, 1857, 23 Beav. 413; 26 L. J., Ch. 457; 3 Jur. N. S. 652 -------- - 81 Hutton V. Brown, 1881, 45 L. T. 343 ; 29 W. R. 928 - - - 34, 41 Hutton V. Cruttwell, 1852, 22 L. J., Q. B. 78 ; 1 E. & B. 15 ; 17 Jur. 392 54, 1 19, 121 Hyde v. Warden, 1877, 3 Ex. D. 72 ; 47 L. J., Ex. 121 ; 37 L. T. 567 - 263 Irish C. S. Building Society v. Mahony, 1876, 10 Ir. Rep. C. L. 363 - 86 Irons V. Smallpiece, 1819, 2 B. & A. 551 - ... 20 Isherwood, ex p., re Knight, 1882, 22 Ch. D. 384; 52 L. J., Ch. 370; 48 L. T. 398 ; 31 W. R. 442 - - - - - 180 Izard, ex p., re Chappie, 1883, 23 Ch. D. 409 ; 52 L. J., Ch. 802 ; 49 L. T. 230 ; 32 W. R. 218 - - - - - - - 240, 249 Izard, ex p., re Cook, 1874, L. R., 9 Ch. 271 ; 43 L. J., Bank. 31 ; 30 L. T. 7 ; 22 W. R. 342 - - - - - - - 121, 157 Jackson, ex p., re Bowes, 1880, 14 Ch. D. 725 ; 43 L. T. 272 ; 29 W. R. 253 - - 184 James v. Biou, 1818, 3 Swanst. 234 - - - - - 67 James v. Macken, 1878, 66 L. T. J. 139; 12 Ir. L. T. Rep. 161 - - 205, 211 Janes v. Whitbread, 1851, 20 L. J., C. P. 217 ; 11 C. B. 406 ; 15 Jur. 612- 107 Jardine, ex p., re McManus, 1875, L. R., 10 Ch. 322 ; 44 L. J., Bank. 58 ; 32 L. T. 681 ; 23 W. R. 736 - - - - - 25 Jarman v. Woolloton, 1790, 3 T. R. 618 - - - - - 315 Jarvis v. Jarvis, 1893, 63 L. J., Ch. 10 ; 69 L. T. 412 - 43, 52, 54, 65, 84, 156, 323 Jarvis, ex p., re Spanton, 1879, 10 Ch. D. 179 ; 48 L. J., Bank. 45 ; 39 L. T. 651;27 W. R.297 -...-- 133 Jay, ex p., re Blenkhorn, 1874, L. R., 9 Ch. 697 ; 43 L. J., Bank. 122 ; 31 L. T. 260 ; 22 W. R. 907 - - - - - - 167, 168 Jay, ex p., re Harrison, 1880, 14 Ch. D. 19 ; 42 L. T. 600 ; 28 W. R. 449 ; 44 J. P. 409 - - - - - - - 27 Jenkinson v. Brandley Mining Co., 1887, 19 Q. B. D. 568 ; 35 W. R. 834 320, 322, 324 Jennings v. Jordan, 1881, 6 App. Ca. 698 ; 51 L. J., Ch. 129 ; 45 L. T. 593 ; 30 W. R. 369 - Jezeph V. Ingram, 1817, 1 Moore 189 - . - - John V. Jenkins, 1832, 1 Cr. & M. 227 ; 3 Tyr. 170. Johnson, ex p., re Chapman, 1884, 26 Ch. D. 338; 53 L. J., Ch. 50 L. T. 214 ; 32 W. R. 693 ; 48 J. P. 648 - Johnson v. Diprosc, 1893, 1 Q. B. 512 ; 4 R. 291 ; 62 L. J., Q. B. 68 L. T. 485 ; 41 W. R. 371 ; 57 J. P. 517 - - 56, 67, 262, 269, 313 Johnson v. Osenton, 1869, L. R., 4 Ex. 107 ; 38 L. J., Ex. 76 ; 19 L. T. 793 ; 17 W. R. 675 - - - - - - - 159 . 68 . 115 . 266 763; 120, 238 272 291; TABLE OF CASES. PAGE Johnson v. Stear, 1864, 33 L. J., C. P. 130; 15 C. B. N. S. 330; 12 W. R. 347 ; 10 Jur. N. S. 99 - - - - - 71 Jolly V. Arbuthnot, 1859, 28 L. J., Ch. 547 ; 4 De G. & J. 224 ; 5 Jur. N. S. 689 - - - 180, 181 Jones V. Harber, 1870, L. R., 6 Q. B. 77 ; 40 L. J., Q. B. 59 ; 23 L. T. 606 ; 19 W. R. 248 - - - - - - - 126 Jones V. Harris, 1871, L. R., 7 Q. B. 157 ; 41 L. J., Q. B. 6 ; 25 L. T. 702 ; 20 W. R. 143 ------ 204,205,211 Jones V. Lock, 1865, L. R., 1 Ch. 25 ; 35 L. J., Ch. 117 ; 14 W. R. 149 ; 11 Jur. N. S. 913 - - - - - - - 22 Jones V. Matthie, 1847, 11 Jur. 504 - - - - - 60 Jones V. Roberts (Griffiths claimant), 1890, 34 Sol. J. 254 - - 252 Jones V. Tower Furnishing Co., 1889, 61 L. T. 84 ; 6 Mor. 193 - - 15, 38 Joseph V. Lyons, 1884, 15 Q. B. D. 280; 54 L. J., Q. B. 1; 51 L. T. 740; 33 W. R. 145 - - - - - - -75,94 Joseph V. Webb, 1884, 1 C. & E. 262 - - - - - 74 Joy V. Campbell, 1804, 1 Sch. & Lef. 328 - - - - 315 Kahen. ex p., re Hewer, 1882, 21 Ch. D. 871 ; 51 L. J., Ch. 904 ; 46 L. T. 856 ; 30 W. R. 954 ------ 189, 200, 203, 240 Karet v. Kosher Meat Supply Association, 1877, 2 Q. B. D. 361 ; 46 L. J., Q. B. 548 ; 36 L. T. 694 ; 25 W. R. 691 - - - - 226, 230 Kearsley v. Philips, 1883, 11 Q. B. D. 621 ; 52 L. J., Q. B. 581 ; 49 L. T. 435 ; 31 W. R. 909 - - - - - - 180, 181, 182 Kelly & Co., ex p., re Smith, Fleming & Co., 1879, 11 Ch. D. 306 ; 48 L. J., Bank. 65 ; 40 L. T. 404 ; 27 W. R. 830 - - - 122 Kelly V. Kellond, 1888, 20 Q. B. D. 569 ; 57 L. J., Q. B. 330; 58 L. T. 263 ; 36 W. R. 363 - - - - - - 195, 249, 253 Kennedy, ex p., re Willis, 1888, 21 Q. B. D. 384; 57 L. J., Q. B. 634; 59 L. T. 749 : 36 W. R. 793 ; 5 Mor. 189 - - - 179, 181, 182, 183 Kevan v. Mawson, 1871, 24 L. T. 395 ; 19 W. R. 1145 - - - 114 Kidd V. Rawlinson, 1800, 2 B. & P. 59 ; 3 Esp. 52 - - 103, 111, 115 Kiluer, ex p., re Barker, 1879, 13 Ch. D. 245 ; 41 L. T. 520 ; 28 W. R. 269 ; 44 J. P. 264 - Kilpin V. Ratley, 1892, 1 Q. B. 582; 66 L. T. 797; 40 W. R. 479; 56 J. P. 565 ...---- King, ex p., re King, 1876, 2 Ch. D. 256 ; 45 L. J., Bank. 109 ; 34 L. T. 466 ; 24 W. R. 559 - Knightley, ex p., re Moulson, 1882, 51 L. J., Ch. 823 ; 46 L. T. 776 ; 30 W. R. 844 Knott, re, 1877, 7 Ch. D. 549 n - Knowles v. Horsfall, 1821, 5 B. & A. 134 Lamb r. Bruce, 1876, 45 L. J., Q. B. 538 ; 35 L. T. 425 ; 24 W. R. 645 - 201, 210 Lancashire Wagon Co. v. Fitzhugh, 1861, 30 L. J., Ex. 231 ; 6 H. & N. 502 ; 3 L. T. 703 - - - - - - - 42 121 21, 172 54, 120 202, 206 190 127, 129 TABLE OF CASES. PAGE Lane v. Tyler, 1887, 56 L. J., Q. B. 461 - - - - 265, 313 Larchin v. North Western Deposit Bank, 1875, L. E., 10 Ex. 64; 44 L. J., Ex. 71 ; 33 L. T. 124 ; 23 W. R. 325 - - - - 202, 210 Larios r. Bonany y Gurety, 1873, L. R., 5 P. C. 346 - - - 55 Latimer v. Batson, 1825, 4 B. & C. 652 ; 7 D. & R. 106 - - - 115 Lavery v. Purscll, 1888, 39 Cli. D. 508 ; 57 L. J., Ch. 570; 58 L. T. 846; 37 W. R. 163 - - - - - - - 84 Lawton v. Lawton, 1743, 3 Atk. 13 - - - - - 78 Lazarus v. Andrade, 1880, 5 C. P. D. 318; 49 L. J., C. P. 847; 43 L. T. 30; 29 W. R. 15; 44 J. P. 697 - - - - - 94 Learoyd, ex p., re Foulds, 1878, 10 Ch. D. 3; 48 L. J., Bank. 17; 39 L. T. 525 ; 27 W. R. 277 - - - - - 121, 192 Leatham v. Amor, 1878, 47 L. J., Q. B. 581 ; 38 L. T. 785 ; 26 W. R. 739 -------- - 94 Lee V. Barnes, 1886, 17 Q. B. D. 77 ; 34 W. R. 640 - - - 284, 295 Lee V. Butler, 1893, 2 Q. B. 318 ; 4 R. 563 ; 62 L. J., Q. B. 591 ; 69 L. T. 370 ; 42 W. R. 88 - - - - - - - 43, 44 Lee V. Glutton, 1876, 46 L. J., Ch. 48 ; 35 L. T. 84 ; 24 W. R. 942 - 226 Lee V. Gaskell, 1876, 1 Q. B. D. 700 ; 45 L. J., Q. B. 540 ; 34 L. T. 759 ; 24 W. R. 824 - - - - - - - 83 Lee V. Rumilly, 1891, 55 J. P. 519 - - - - - 267 Lee V. Turner, 1888, 20 Q. B. D. 773 ; 59 L. T. 320 - - - 106, 212 Lees V. Whiteley, 1866, L. R., 2 Eq. 143 ; 35 L. J., Ch. 412; 14 L. T. 472;14 W. E. 534 ------- 298 Legg V. Evans, 1840, 6 M. & W. 36 ; 4 Jur. 197 ; 8 Dowl. 177 - - 46 Leman, ex p., re Barrand, 1876, 4 Ch. D. 23, affirming 3 Ch. D. 324 ; 46 L. J., Bank. 38 ; 35 L. T. 422 ; 25 W. R. 65 - - - 76, 77 Leman v. Yorkshire Wagon Co., 1881, 50 L. J., Ch. 293 ; 29 W. R. 466 41 Le Neve v. Le Neve, 1747, Amb. 436 ; 2 W. & T., L. C. 26 - - 226 Levy V. Abercorris Slate and Slab Co., 1887, 37 Ch. D. 260 ; 57 L. J., Ch. 202 ; 58 L. T. 218 ; 36 W. R. 411 - - - - 321 Levy V. Polack, 1885, 52 L. T. 551 - - - - - 285 Lewis, ex p., re Henderson, 1871, L. R., 6 Ch. 626 ; 24 L. T. 785 ; 19 W. R. 835 - - - - - - - - 167 Liffin V. Pitcher, 1842, 1 Dowl. N. S. 767 ; 6 Jur. 537 - - - 269, 313 Liford's Case, 1605, 11 Coke 50 .... - 80, 82 Lincoln Wagon Co. r. Mumford, 1879, 41 L. T. 655 - - - 33, 170 Lindoii V. Sharpe, 1843, 6 M. & G. 895 ; 2 Scott N. R. 730; 13 L. J., C. P. 67 - - 191 Linfoot r. Pockett (trading as " Wilber force "), 1895, 2 Ch. 835; 64 L. J., Ch. 752; 11 T. L. R. 590 ... - - 216,295 Lingard v. Messiter, 1823, 1 B. & C. 308 ; 2 D. & R. 495 - - 129 Lingham v. Biggs, 1797, 1 B. & P. 82 - - - - - 316 Liverpool Commercial Investment Society v. Richardson, 1886, 2 T. L. R. 602 ; 55 L. J., Q. B. 455 n - - - - - 301, 302 TABLE OF CASES. Lloyd V. AttwoocL 1859, 3 De G. & J. 614 ; 29 L. J., Ch. 97 ; 5 Jur. N. S. 1322 -------- 113 Load r. Green, 1846, 15 M. &W. 216; 15 L.J, Ex. 113; 10 Jur. 163 - 123 Lock V. Sellwood, 1841, 1 Q. B. 736 - - - - - 26 Loeschmaim v. Machin, 1818, 2 Stark. 311 - - - - 44 Lomax v. Buxton, 1871, L. R., 6 C. P. 107 ; 40 L. J., C. P. 150 ; 24 L. T. 137 ; 19 W. R. 441 - - - - - - - 120 London & Lancashire Paper Mills Co., in re, 1888, W. N. 36 ; 58 L. T. 798 175, 319 London & Westminster Loan Co. v. Chase (or Chacc), 1862, 31 L. J., C. P. 314 ; 12 C. B. N. S. 730; 6 L. T. 781 ; 10 W. R. 698 ; 9 Jur. N. S. 412 - - 203, 207 London & Westminster Loan Co. l'. Drake, 1859, 28 L. J., C. P. 297; 6 C. B. N. S. 798 ; 5 Jur. N. S. 1407 - . - - 84 London & Westminster Loan Co. v. London & North Western Railway Co., 1893, 2 Q. B. 49; 5 R. 425; 62 L. J., Q. B. 370; 69 L. T. 320 ; 41 W. R. 670 - - - - - - - 263 London and Yorkshire Bank v. White, 1895, 11 T. L. R. 570 - - 158 Longbottom r. Berry, 1869, L. R., 5 Q. B. 123; 10 B. & S. 852 ; 39 L. J., Q. B. 37 ; 22 L. T. 385 - - - - - - 81, 82, 178 Longden v. Sheffield Deposit Bank, 1880, 24 Sol. J. 913 - - 262 Lovering, er p., re Jones, 1874, L. R., 9 Ch, 621 ; 43 L. J., Bank. 116; 30 L. T. 622 ; 22 W. R. 853 - - - - - - 43 Low r. McGill, 1864, 10 L. T. 495 ; 12 W. R. 826 - - - 97 Luckin V. Hamlyn, 1869, 21 L. T. 366 ; 18 W. R. 43 - - - 207, 209 Lumley v. Simmons, 1887, 34 Ch. D. 698 ; 56 L. J.. Ch. 329 ; 56 L. T. 134 ; 35 W. R. 422 - - - - - 61, 289, 290, 291, 302, 303 Lunn V. Thornton, 1845, 14 L. J., C. P. 161 ; 1 C. B. 379 ; 9 Jur. 350 91, 92, 257 Lusty, ex p., re Lusty, 1889, 60 L. T. 160 ; 37 W. R. 304 ; 6 Mor. 18 - 176 Lybbe v. Hart, 1885, 29 Ch. D. 8 ; 54 L. J., Ch. 860 ; .52 L. T. 634 - 166 Lyde v. Mynn, 1833, 1 My. & K. 683 ; 4 Sim. 505 . . - 95 Lyon V. Morris, 1887, 19 Q. B. D. 139 ; 56 L. J., Q. B. 378; 56 L. T. 915 302, 303 Lyon V. Weldon, 1824, 2 Bing. 334 ; 9 Moore 629 - - - 127 Lyons, ex p., re Lyons, 1872, L. R., 7 Ch. 494; 41 L. J., Ch. 41 ; 26 L. T. 491 ; 20 W. R. 566 - - - - - - - 132 Lyons v. Tucker, 1881, 7 Q. B. D. 523, reversing 6 Q. B. D. 660 ; 50 L. J., Q. B. 661 ; 45 L. T.403 - - - - - 224, 225 McBurnie, ex p., 1852, 4 De G. M. & G. 441 ; 21 L. J., Bank. 15 ; 16 Jur. 807 ------- - 161 McCue V. James, 1870, 19 W. R. 158 - - - - - 204 Macdona v. Swiney, 18.58, 8 Ir. C. L. Rep. 73 - - - - 115 Macey v. Gilbert, 1888, 57 L. J., Q. B. 461 - - - - 299 McHattie, ex p., re Wood, 1878, 10 Ch. D. 398; 48 L. J., Bank. 26; 39 L. T. 373 ; 27 W. R. 327 - - - - - 106, 116, 205, 212 TABLE OF CASES. PAGE Mackay r. Douglas, 1872, L. R., 14 Eq. 106 ; 41 L. J., Ch. 539 ; 26 L. T. 721; 20 W.R. 652 - - - - - - - 112 Mackay, ex p., re Jeavons, 1873, L. R., 8 Ch. 643 ; 42 L. J., Bank. 68; 28 L. T. 828 ; 21 W. R. 664 - - - - 54, 152, 156 Mackay v. Merritt, 1886, 34 W. R. 433 - - - - - 267, 291 Mackenzie, ex p., re Bent, 1873, 42 L. J., Bank. 25 ; 28 L. T. 486 - 122, 205 McShane, ex p., re McGinity, 1884, 29 Sol. J. 70 - - - 35, 216 Maddever, re, Three Towns Banking Co. i'. Maddever, 1884, 27 Ch. D. 523 ; 53 L. J., Ch. 998 ; 52 L. T. 35 ; 33 W. R. 286 - - - 110 Madell v. Thomas, 1890 [1891], 1 Q. B. 230; 60 L. J., Q. B. 227; 64 L. T. 9 ; 39 W. R. 280 - - - - - - 40, 248 Mainland r. Upjohn, 1889, 41 Ch. D. 126 ; 58 L. J., Ch. 361 ; 60 L. T. 614; 37 W. R. 411 ..--.-- 287 Manchester &c. Railway Co. v. North Central Wagon Co., 1888, 13 App. Ca. 554 ; 58 L. J., Ch. 219 ; 59 L. T. 730 ; 37 W. R. 305 2, 13, 36, 41, 43, 152, 248 Manning's Case, 1610, 8 Coke, 94 b - - - - - 26 Marine Mansions Co., in re, 1867, L. R., 4 Eq. 601 ; 37 L. J., Ch. 115 190, 318, 323 Marples v. Hartley, 1861, 30 L. J., Q. B. 92 ; 3 E. & E. 610 ; 3 L. T. 774 ; 9 W. R. 334 ; 7 Jur. N. S. 446 .... 171,189,193 Marsden v. Meadows, 1881, 7 Q. B. D. 80; 50 L. J., Q. B. 536; 45 L. T. 301 ; 29 W. R. 816 ----.- 7,11,13,30,152 Martindale v. Booth, 1832, 3 B. & Ad. 498 - - - - 115 Martinson v. Consolidated Co., Limited, 1889, 5 T. L. R. 353 - - 212 Mason, ex p., re Isaacson, 1894 [1895], 1 Q. B. 333; 7lL. T. 812; 2 Manson 11 - - - - - - - 43, 155, 282 Mason v. Wood, 1875, 1 C. P. D. 63 ; 45 L. J., C. P. 76; 33 L. T. 571; 24 W. R. 41 - - - - - - - 237 Massey v. Sladen, 1868, L. R., 4 Ex. 13 ; 38 L. J., Ex. 34 - 57, 72, 301 Mather v. Eraser, 1856, 25 L. J., Ch. 361 ; 2 K. & J. 536 ; 4 W. R. 387 ; 2 Jur. N. S. 900 - - - - - - 81, 82, 85, 86 Matthews v. Buchanan, 1889, 5 T. L. R. 373 - - - - 209 Maughan v. Sharpe, 1864, 34 L. J., C. P. 19 ; 17 C. B. N. S. 443 ; 10 L. T. 870 ; 12 W. R. 1057 ; 10 Jur. N. S. 989 - - - - 60, 108 Mayer v. Mindlcvich, 1888, 59 L. T. 400 - - - - 273 Mee ^;. Barren, 1866, 15 L. T. 320, affirming 14 L. T. 591 - - 24 Meggy V. Imperial Discount Co., 1878, 3 Q. B. D. 711 ; 47 L. J., Q. B. 119 ; 38 L. T. 309 ; 26 W. R. 342 - - - - - 97, 98 Mellersh v. Brown, 1890, 45 Ch. D. 225 ; 60 L. J., Ch. 43 ; 63 L. T. 189 ; 38 W. R. 732 - - - - - - - 62 Melville V. Stringer, 1884, 13 Q. B. D. 392, affirming 1883, 12 Q. B. D. 132 ; 53 L. J., Q. B. 175, 482 ; 50 L. T. 774 ; 32 W. R. 388, 890 - - - - - 201, 214, 250, 285, 290, 309 Mercer v. Peterson, 1868, L. R., 3 Ex. 104 ; 37 L. J., Ex. 54 ; 18 L. T. 30 ; 16 W. R. 486 - - - - - - - 120, 121 TABLE OF CASES. PAGE Mercer, ex p., re Wise, 1886, 17 Q. B. D. 290; 55 L. J., Q. B. 558; 54 L. T. 720 - - - - - - - - 112 Merchant Banking Co. v. Spotten, 1877, 11 Ir. Rep. Eq. 586 - 92, 162, 170 Metropolitan Counties Society v. Brown, 1859, 26 Beav. 454 ; 28 L. J., Ch. 581 ; 7 W. R. 303 ; 5 Jur. N. S. 378 - - - - 81 Meux V. Jacobs, 1875, L. R., 7 H. L. 481 ; 44 L. J., Ch. 481 ; 32 L. T. 171 ; 23 W. R. 526 - - - - - - 75, 82, 186, 224 Meyerstein v. Barber, 1866, L. R., 2 C. P. 38, 661 ; affirmed L. R., 4 H. L. 317 ; 39 L. J., C. P. 187 ; 22 L. T. 808 ; 18 W. R. 1041 - 52 Michael v. Gay, 1858, 1 F. & F. 409 - - - - - 117 Middleton v. Pollock, 1876, 2 Ch. D. 104 ; 45 L. J., Ch. 293 - - 113 Midworth, ex p., 1885, 30 Sol. J. 63 - - - - - 269 Mills's Trusts, in re, 1895, 2 Ch. 564; 64 L. J., Ch. 708 - - 316 Milroy v. Lord, 1862, 4 De G. F. & J. 264 ; 31 L. J., Ch. 798 ; 7 L. T. 178 ; 8 Jur. N. S. 806 ----- - 22 Minister v. Price, 1859, 1 F. & F. 686 - - - - - 192 Minter v. Carr, 1894, 3 Ch. 498 ; 7 R. 558 ; 63 L. J., Ch. 705 ; 71 L. T. 526 68 Monetary Advance Co. v. Cater, 1888, 20 Q. B. D. 785 ; 57 L. J., Q. B. 463; 59 L. T. 311 ---... 63,219,221 Monson v. Milner, 1892, 8 T. L. R. 447 ..... 57, 108, 294 Montagu, ex p., re O'Brien, 1876, 1 Ch. D. 554 ; 34 L. T. 197 ; 24 W. R. 309 - - - - - - - - 129, 157, 315 Moore & Robinson's Banking Co., ex p., re Armytage, 1880, 14 Ch. D. 379 ; 49 L. J., Bank. 60 ; 42 L. T. 443 ; 28 W. R. 924 - - 81, 82, 186 Moore v. Shelley, 1883, 8 App. Ca. 285; 52 L. J., P. C. 35; 48 L. T. 918 - - - - - - . - - 56,71,72 Moorhouse v. Woolfe, 1882, 46 L. T. 374 - - - - 55, 199 Morell V. Dubost, 1810, 3 Taunt. 235 . - . - - 224 Morewood v. South Yorkshire and River Dun Co., 1858, 28 L. J., Ex. 114; 3 H. & N. 798 - - . - . - 98, 99, 110, 208 Morris v. Delobbel- Flipo, 1892, 2 Ch. 352; 61 L. J., Ch. 518; 66 L. T. 320; 40 W. R. 492 - - - - - 28, 51, 53, 149, 156 Morris v. Mellin, 1827, 6 B. & C. 446 - - . - - 194, 225 Morris v. Salberg, 1889, 22 Q. B. D. 614; 58 L. J., Q. B. 275; 61 L. T. 283 ; 37 W. R. 469 ; 53 J. P. 772 - - - - . 267 Morrison, ex p., re Westray, 1880, 42 L. T. 158 ; 28 W. R. 524 . 166, 168, 170 Mortgage Insurance Corporation v. Commissioners of Inland Revenue, 1888, 57 L. J., Q. B. 174 ; 58 L. T. 769 - - - - 64 Mortlock, ex p., re Basham, 1881, W. N. 161 - - - - 169 Morton v. Woods, 1869, L. R., 4 Q. B. 293 ; 38 L. J., Q. B. 81 ; 17 W. R. 414;9B. &S. 659 - - - - - - 155,179,180 Moss I'. James, 1878, 38 L. T. 595, affirming 47 L. J., Q. B. 160; 37 L. T. 915 . - - - . - - - 84 Mumford v. Collier, 1890, 25 Q. B. D. 279 ; 59 L. J., Q. B. 552 ; 38 W. R. 716 .------- - 181, 182 TABLE OF CASES. Murray r. Mackenzie, 1875, L. R., 10 C. P. 625; 44 L. J., C. P. 313; 32 L. T. 777 ; 23 W. R. 595 - - - - - - 205, 206 Musgrave r. Stevens, 1883, 1 G. & B. 38 ; 47 J. P. 295 - - - 74 Musgrave, ex p., re Wood, 1878, 10 Ch. D. 94; 48 L. J., Bank. 39; 39 L. T. 647 ; 27 W. R. 372 ..... 131 Mutton, ex p., re Cole, 1872, L. R., 14 Eq. 178 ; 41 L. J., Bank. 57 ; 26 L. T. 916 ; 20 W. R. 882 - - - - - 133, l7l Myers v. Elliott, 1886, 16 Q. B. D. 526; 55 L. J., Q. B. 233; 54 L. T. 552 ; 34 W. R. 338 - - - - - - - 289, 290 Myers v. Marsh, 1883, 1 C. & E. 116 - - - - - 58 Nassan, ex p., re Horn, 1886, 3 Mor. 51 - - - - - 128 National Deposit Bank, ex p., re Wills, 1878, 26 W. R. 624 - - 211, 315 National Guardian Assurance Co., ex p., re Francis, 1878, 10 Cli. D. 408 ; 40 L. T. 237 ; 27 W. R. 498 - - - - - 71, 127, 128, 308 National Mercantile Bank v. Hampson, 1880, 5 Q. B. D. 177; 49 L. J., Q. B. 480; 28 W. R. 424 -....- 73 National Mercantile Bank, ex p., re Haynes, 1880, 15 Ch. D. 42; 49 L. J., Bank. 62 ; 43 L. T. 36 ; 28 W. R. 848 ; 44 J. P. 780 - 199, 211, 215, 270, 274, 278 National Mercantile Bank, ex p., re Phillips, 1880, 16 Ch. D. 104; 50 L. J., Ch. 231 ; 44 L. T. 265 : 29 W. R. 227 - - - 80, 185 National Mercantile Bank i'. Rymill, 1881, 44 L. T. 767 - - 58 Needham to Johnson, 1867, 8 B. & S. 190 ; 15 L. T. 467 ; 15 W. R. 346 213, 230 Nelson, ex p., re Hockaday, 1886, 55 L. T. 819; 35 W. R. 264; 4 Mor. 12 ------- - 196, 271 Newitt, ex p., re Garrud, 1881, 16 Ch. D. 522 ; 51 L. J., Ch. 381 ; 44 L. T. 5 ; 29 W. R. 344 - - - - 27, 153, 154, 248 Newlove v. Shrewsbury, 1888, 21 Q. B. D. 41 ; 57 L. J., Q. B. 476 ; 36 W. R. 835 - - - - - - 13, 43, 48, 53, 151 Newport Credit Association, ex p., re Bampfield, 1872, 20 W. R. 925 - 32 Newsham, ex p., re Wood, 1879, 40 L. T. 104 - - - - 170 Nicholson V. Cooper, 1858, 27 L. J., Ex. 392 ; 3 H. & N. 384 - 75, 76, 103, 189, 202, 212 North Central Wagon Co. v. Manchester &c. Railway Co., 1887, 35 Ch. D. 191; 56 L. J., Ch. 609; 56 L. T. 755; 35 W. R. 443 ... - - - - 12, 13, 30, 36, 152 North-Wcstern Bank, ex p., re Slee, 1872, L. R., 15 Eq. 69; 42 L. J., Bank. 6 ; 27 L. T. 461 ; 21 W. R. 69 - - - - 156, 162 Norton, ex i>., re Brail, 1893, 2 Q. B. 381 ; 5 R. 440; 62 L. J., Q. B. 457 ; 69 L. T. 323 ; 41 W. R. 623 ; 10 Mor. 166 - - - 124 Nunn V. Kirkwood, 1883, 75 L. T. J. 134 - - - - 266 Nunn r. Wilsmore, 1800, 8 T. 11. 521 - - - - - 114 O'Brien, in re, 1860, 10 Jr. C. L. Rep., App. 33 - - - - 233 O'Connor, re, 1856, 27 L. T. O. S. 27 - - - - - 314 TABLE OF CASES. PAGE Odell, ev p., re Walden, 1878, 10 Ch. D. 76; 48 L. J., Bank. 1 ; 39 L. T. 333 ; 27 W. R. 274. - - - - 12, 32, 33, 65, 66, 214, 216, 217 O'Dwyer, in re, 1886, 19 L. R. Ir. 19 - - - - - 281 Official Receiver, ex p., re Arnold, 1891, 66 L. T. 121 ; 40 W. R. 288 ; 9 Mor. 1 ------- - 123 Official Receiver, ex p., re Emery, 1888, 21 Q. B. D. 405 ; 57 L. J., Q.B. 629 ; 37 W. R. 21 233, 242 Official Receiver, ex p., re Gordon, 1889, 61 L. T. 299 ; 6 Mor. 150 - 78 Official Receiver, ex p., re Holden, 1887, 20 Q. B. D. 43 ; 57 L. J., Q. B. 47 ; 58 L. T. 118 ; 36 W. R. 189 - - - - - 124 Official Receiver, ex p., re Morritt, 1886, 18 Q. B. D. 222 ; 56 L. J.,Q. B. 139 ; 56 L. T. 42 ; 35 W. R. 277 - - 45, 59, 260, 295, 302, 303, 313 Official Receiver v. Tailby, 1886, 18 Q. B. D. 25 ; 56 L. J., Q. B. 30; 55 L. T. 626 ; 35 W. R. 91 ----- 89 Official Receiver, ex p., re Watson, 1890, 25 Q. B. D. 27 ; 59 L. J., Q. B. 394 ; 63 L. T. 209 ; 38 W. R. 567 ; 7 Mor. 155 - - - 38, 39 OUiver v. King, 1856, 25 L. J., Ch. 427 - - - - 110 O'Neil V. City and County Finance Co., 1886, 17 Q. B. D. 234 ; 55 L. T. 408 ; 34 W. R. 545 - - - - - - - 313 Onn V. Fisher, 1889, 5 T. L. R. 504 - - - - - 219 Opperraan v. Smith, 1824, 4 D. & R. 33 - - - - - 265 Oriental Bank Corporation v. Coleman, 1861, 30 L. J., Ch. 635; 3 Giff. 11 ; 4 L. T. 9 ; 9 W. R. 432 - . - - - 119 O'Sullivan v. Burke, 1875, 9 Ir. Rep. C. L. 105 - - - - 117 Owen V. Legh, 1820, 3 B. & A. 470 - - - - - 79 Paget V. Perchard, 1795, 1 Esp. 205 - - - - - 115 Paine v. Matthews, 1885, 53 L. T. 872 - - - 89, 160, 186, 187, 189 Palmer's Shipbuilding Co. v. Chaytor, 1869, L. R., 4 Q. B. 209 ; 19 L. T. 638 ; 17 W. R. 401 - - - - - - - 178 Panama &c. Royal Mail Co., in re, 1870, L. R., 5 Ch. 318 ; 39 L. J., Ch. 482 ; 22 L. T. 424 ; 18 W. R. 441 - - - - 162 Parke, in re, 1884, 13 L. R. Ir. 85 - - - - - 234 Parker v. Lyon, 1888, 5 T. L. R. 10 - - - - - 195, 280 Pamacott v. Dieudonne, 1885, 2 T. L. R. 98 - - - - 19, 193 Parnell v. Steadman, 1883, 1 C. & E. 153 - - - - 161 Parry v. Duncan, 1831, 7 Ring. 243 ; M. & M. 533 ; 5 M. & P. 19 - 265 Parsons v. Brand, 1890, 25 Q. B. D. 110 ; 59 L. J., Q. B. 189 ; 62 L. T. 479 ; 38 W. R. 388 - - - - - - - 283, 309 Parsons r. Dewsbury, 1887, 3 T. L. R. 354 - - - - 280 Parsons r. Hind, 1866, 14 W. R. 860 - - - - - 81 Parsons, ex p., re Townsend. 1886, 16 Q. B. D. 532 ; 55 L. J., Q. B. 137; 53 L. T. 897 ; 34 W. R. 329 ; 3 Mor. 36 - 47, 53, 153, 159, 164, 279, 280 Patrick, in re, Bills v. Tatham, 1890 [1891], 1 Ch. 82; 60 L. J., Ch. Ill ; 63 L. T. 752; 39 W. R. 113 - - - - -65,66 c TABLE OF CASES. PAGE Payne v. Cales, 1878, 38 L: T. 355 - - - - - 75, 77 Payne, ex p., re Coton, 1887, 56 L. T. 571 ; 35 W. R. 476 ; 4 Mor. 90 - 291, 300 Payne, ex p., re Cross, 1879, 11 Ch. D. 539; 40 L. T. 563; 27 W. R. 808 - - - - - - - 77, 79, 120, 182, 195 Payne v. Fern, 1881, 6 Q. B. D. 620 ; 50 L. J., Q. B. 446 ; 29 W. R. 441 74 Payne v. Wilson, 1895, 1 Q. B. 653 ; 64 L. J., Q. B. 328 ; 72 L. T. 110 - 44 Peace v. Brookes, 1895, 2 Q. B. 451 ; 64 L. J., Q. B. 747 ; 72 L. T. 798 - 275, 296, 310 Peacock v. The Queen, 1858, 4 C. B. N. S. 264 ; 27 L. J., C. P. 224 - 313 Pearce v. Morris, 1869, L. R., 5 Ch. 227 ; 39 L. J., Ch. 342 ; 21 L. T. 190 67, 68 Pearce v. Watkins, 1861, 2 F. & F. 377 - - - - - 68 Pearce, eel' 23., re Williams, 1883, 25 Ch. D. 656; 53 L. J., Ch. 500; 49 L. T. 475 ; 32 W. R. 187 - - - - - 287, 290, 306 Peckham v. Taylor, 1862, 31 Beav. 254 - - - - - 21 Pennell v. Dawson, 1856, 18 C. B. 355 - - - - - 115 Pennell v. Reynolds, 1862, 11 C. B. N. S. 709; 5 L. T. 286 - - 120 Pennington, ex p., 1888, 5 Mor. 268, affirming 59 L. T. 774 - - 161 Penwarden r. Roberts, 1882, 9 Q. B. D. 137; 51 L. J., Q. B. 312 ; 46 L. T. 161 ; 30 W. R. 427 - - - - - - - 199 Peppercorn v. Hofman, 1842, 9 M. & W. 618 ; 12 L. J., Ex. 270 - - 314 Petch V. Tutin, 1846, 15 M. & W. 110 ; 15 L. J., Ex. 280 - - 92, 94, 257 Phillips V. Beal, 1862, 32 Beav. 25 - - - - - 103 Phillips V. Burt, 1862, 2 F. & F. 862 - - - - - 203 Phillips V. Earner, 1795, 1 Esp. 355 - - - - - 116 Phillips 1!. Gibbons, 1857, 5 W. R. 527; 29 L. T., O. S. 91 - - 8,30,31 Pickard v. Bretz, 1859, 29 L. J., Ex. 18 ; 5 H. & N. 9 ; 1 L. T. 45 ; 8 W. R. 90 ; 5 Jur. N. S. 1134 ..... 207 Pickard v. Marriage, 1876, 1 Ex. D. 364; 45 L. J., Ex. 594; 35 L. T. 343 ; 24 W. R. 886 - Pickard v. Sears, 1837, 6 A. & E. 469 ; 2 N. & P. 488 - Pickstock V. Lyster, 1815, 3 M. & S. 371 Piercy v. Humphreys, 1868, 17 L. T. 463 Pigott V. Birtles, 1836, 1 M. & W. 441 ; 2 Gale 18 Pinhorn v. Souster, 1853, 22 L. J., Ex. 266 ; 8 Ex. 763 - Place V. Fagg, 1829, 4 M. & R. 277 Ponsford v. Walton, 1868, L. R., 3 C. P. 167; 37 L. J., C. P. 17 L. T. 511 ; 16 W. R. 363 - Poole's Case, 1704, 1 Salk. 368 - Pope, ex p., re Paxton, 1889, 60 L. T. 428 Popple V. Sylvester, 1882, 22 Ch. D. 98; 52 L. J., Ch. 54; 47 L. T. 329; 31 W. R. 116 - - - - - - - 62 Popplcwell, ex p., re Storey, 1882, 21 Ch. D. 73 ; 52 L. J., Ch. 39 ; 47 L. T. 274 ; 31 W. R. 35 - 100, 193, 211, 212, 213, 214, 216, 218, 220, 279 Potter V. Edwards, 1857, 26 L. J., Ch. 468 - - - - 287 Powell, ex p., re Matthews, 1875, 1 Ch. D. 501; 45 L. J., Bank. 100; 34 L. T. 224 ; 24 W. R. 378 - - - - - - 43 . 170, 213 - 97 - 114, 160 - 192 . 79 - 180, 181 - 82 '. 113; - 239 - 82 305, 306 307, 308 TABLE OP CASES. PAGE Pratt, ex p., re Feilcl, 1890, 63 L. T. 289; 7 Mor. 132 - - 91, 102, 104, 255 Preece v. Gilling, 1885, 53 L. T. 763 - - - - - 14, 17 Prescott V. Phipps, 1883, 23 Ch. D. 372 ; 49 L. T. 240 - - - 67 Price, ex p., re Roberts, 1882, 21 Ch. D. 553 ; 52 L. J., Ch. 131 ; 47 L. T. 402 ; 31 W. R. 104 - - - - . - - 130, 131 Priestley r. Pratt, 1867, L. R., 2 Ex. 101 ; 36 L. J., Ex. 89; 16 L. T. 64; 15 W. R. 639 128, 166 Prismall v. Lovegrove, 1862, 6 L. T. N. S. 216 - - - - 128 Probyn, ex p., 1880, 24 Sol. J. 344 - - - - 206, 273, 284 Protector Loan Co. v. Grice, 1880, 5 Q. B. D. 592 ; 49 L. J., Q. B. 812 ; 43 L. T. 564 - - - - - - - . 289 Proudlove i\ Twemlow, 1833, 1 C. & M. 326 ; 3 Tyr. 260 - - 79 Pulbrook V. Ashby, 1887, 56 L. J., Q. B. 376; 35 W. R. 779 - - 153, 155 Punnett, ex p., re Kitchin, 1880, 16 Ch. D. 226 ; 50 L. J., Ch. 212 ; 44 L. T. 226 ; 29 W. R. 129 - - - - - - 180 Queen's Benefit Building Society, ex p., re Threlfall, 1880, 16 Ch. D. 274 ; 50 L. J., Ch. 318 ; 44 L. T. 74 ; 29 W. R. 128 - - - 180 Queensland Mercantile and Agency Co., in re, 1891, 1 Ch. 536; 60 L. J., Ch. 579 ; 64 L. T. 555 ; 39 W. R. 447 ; 2 Meg. 394 - - 243 Railton v. Wood, 1890, 15 App. Ca. 363 ; 59 L. J., P. C. 84; 63 L. T. 13 264 Ramsay v. Margrett, 1894, 2 Q. B. 18 ; 9 R. 407 ; 63 L. J., Q. B. 513 ; 70 L. T. 788 ; 1 Manson 184 .... 17,18,171,172 Rarasden v. Lupton, 1873, L. R., 9 Q. B. 17; 43 L. J., Q. B. 17; 29 L. T. 510 ; 22 W. "R. 129 - - - - - 194, 195, 197, 239 Randall v. Russell, 1817, 3 Mer. 190 - - . - - 103 Rawlings, ex p., re Cleaver, 1887, 18 Q. B. D. 489 ; 56 L. J., Q. B. 197 ; 56 L. T. 593 ; 35 W. R. 281 - . 60, 292, 293, 301, 302, 303 Rawlings, ex p., re Davis, 1888, 22 Q. B. D. 193; 60 L. T. 157; 37 W. R. 203 - Read v. Joannon, 1890, 25 Q. B. D. 300 ; 59 L. J., Q. B. 544 ; 63 387; 38 W. R. 734; 2 Meg. 275 - - - - Real and Personal Advance Co. v. Clears. 1888, 20 Q. B. D. 57 L. J., Q. B. 164 ; 58 L. T. 610 ; 36 W. R. 256 - Redfern, ex p., re Ball, 1871, 19 W. R. 1058 Redhead v. Westwood, 1888, 59 L. T. 293 - - - Reed v. Blades, 1813, 5 Taunt. 212 - Reed v. Steel, ex p., re Tweddell, 1872, L. R., 14 Eq. 586; 26 L. T. 558; 20 W. R. 622 Reed v. Willmott, 1831, 7 Bing. 577 ; 5 M. & P. 553 - Reese River Silver Mining Co. ?■. Atwell, 1869, L. R., 7 Eq. 347 ; 20 L. T. 163; 17 \V. R. 601 - - - - - - - 110 Reeve r. Whitmore, 1863, 33 L. J., Ch. 63 ; 4 De G. J. & S. 1 ; 9 L. T. 311 ; 12 W. R. 113; 9 Jur. N. S. 1214 - - - - 65, 75, 94 43 ,90 154 L. T. 321, 322, 324 304; - 299, 306 - 129, 192 - 37 91 ,92, 115 558; 119 115 TABLE OF CASES. PAGE Reeves r. Barlow, 1SS4, 12 Q. B. D. 436, affirming 11 Q. B. D. 610 ; 53 L. J., Q. B. 192 ; 50 L. T. 782 ; 32 W. R. 672 - 28, 29, 51, 153, 156. 163, 164, 249 Reeves v. Butcher, 1891, 2 Q. B. 509 ; 60 L. J., Q. B. 619 ; 65 L. T. 329 ; 39 W. R. 626 - - - - - - - 62 Reeves v. Capper, 1838, 5 Bing. N. C. 136 ; 6 Scott 877 ; 2 Jur. 1067 - 53, 162 Reg. v. Cox, 1884, 14 Q. B. D. 153 ; 54 L. J., M. C. 41 ; 52 L. T. 25 ; 33 W. R. 396; 49 J. P. 374; 15 Cox 611 ... - 117 Reg. V. Creese, 1874, L. R., 2 C. C. R. 105 ; 43 L. J., M. C. 51 ; 29 L. T. 897 ; 22 W. R. 375 - - - - - - - 110, 159 Reg. V. Hazlewood, 1883, 48 J. P. 151 - - - - - 74 Reg. V. Hodgkiss, 1869, L. R., 1 C. C. R. 212; 39 L. J., M. C. 14 ; 21 L. T. 564 ; 18 W. R. 1501 ; 11 Cox 365 - - - - 238 Reg. V. Meakin, 1869, 11 Cox C. C. 270 ; 20 L. T. 544 ; 17 W. R. 683 - 56 Reg. V. Sampson, 1885, 52 L. T. 772 ; 49 J. P. 807 - - - 74 Reg. V. Thomas, 1870, 11 Cox C. C. 535 ; 22 L. T. 138 - - - 255 Reg. V. Townshend, 1884, 15 Cox C. C. 466 - - - - 151 Rex V. Londonthorpe, 1795, 6 T. R. 377 - - - - 81 Rex V. Otley, 1830, 1 B. & Ad. 161 - - - - - 81 Reynolds, ex p., re Barnett, 1885, 15 Q. B. D. 169 ; 54 L. J., Q. B. 354 ; 53 L. T. 448 ; 33 W. R. 715 ; 2 Mor. 147 - - - 43, 128, 131 Reynolds v. Hall, 1859, 28 L. J., Ex. 257 ; 4 H. & N. 519 - - 130, 314 Richards v. Delbridge, 1874, L. R., 18 Eq. 11; 43 L. J., Ch. 459; 22 W. R. 584 - - - - - - - 22 Richards v. James, 1867, L. R., 2 Q. B. 285 ; 8 B. & S. 302 ; 36 L. J., Q. B. 116 ; 16 L. T. 174 ; 15 W. R. 580 - 76, 77, 103, 111, 190, 191, 225 Richards v. Jenkins, 1887, 18 Q. B. D. 451 ; 56 L. J., Q. B. 293 ; 56 L. T. 591 ; 35 W. R. 355 - - - - - - 42, 98, 254 Richards v. Johnston, 1859, 28 L. J., Ex. 322 ; 4 H. & N. 660 ; 5 Jur. N. S. 520 - - - - - - - - 98 Richardson v. Harris, 1889, 22 Q. B. D. 268 ; 37 W. R. 426 273, 274, 275, 277, 278 Riches V. Evans, 1840, 9 C. & P. 640 - - - - - 114 Ridler, in re, Ridler v. Ridler, 1882, 22 Ch. D. 74; 52 L. J., Ch. 343; 48 L. T. 396 ; 31 W. R. 93 ------ 112 Ringer v. Cann, 1838, 3 M. & W. 343 ; 7 L. J., Ex. 108; 1 H. & H. 67 ; 2 Jm-. 256 ------- - 24 Roberts, m re, Evans v. Roberts, 1887, 36 Ch. D. 196 ; 56 L. J., Ch. 952; 57 L. T. 79 ; 35 W. R. 684 ; 51 J. P. 757 - - 7, 10, 152, 163, 166, 189 Roberts, in re, Goodchap v. Roberts, 1880, 14 Ch. D. 49 ; 42 L. T. 666; 28 W. R. 870 -.-.--. 292 Roberts -r. Roberts, 1884, 13 Q. B. D. 794; 53 L. J., Q. B. 313 ; 50 L. T. 351 ; 32 W. R. 605 - - - - 165, 251, 279, 284, 285,286 Robinson v. Briggs, 1870, L. R., 6 Ex. 1 ; 40 L. J., Ex. 17 ; 23 L. T. 395 166, 167 Robinson v. Collingwood, 1864, 17 C. B. N. S.777; 34 L. J., C. P. 18; 11 L. T. N. S., 313 ; 13 W. R. 84 ; 10 Jur. N. S. 1080 - 26, 213, 214 Robinson r. McDonnell, 1816, 5 M. & S. 228 - . - - 92 Robinson v. Tucker, 1883, 1 C. & K. 173- - - - - 170, 249 TABLE OF CASES. PAGE Robson V. Drummond, 1831, 2 B. & Ad. 303 - - - - 42 Roe r. Bradshaw, 1866, L. R., 1 Ex. 106 ; 35 L. J., Ex. 77 ; 14 L. T. 641 ; 14 W. R. 284 ; 12 Jur. N. S. 29 - - - - - 202 Roe V. Mutual Loan Fund, 1887, 19 Q. B. D. 347 ; 56 L. J., Q. B. 541 ; 35 W. R. 723 ; before Pollock, B., 56 L. T. 631 - - 58, 275, 289 Rogers v. ChalHs, 1859, 27 Beav. 175 ; 29 L. J., Ch. 240 - - 55 Rogers v. Mutton, 1862, 31 L. J., Ex. 275 ; 7 H. & N. 733 - - 71 Rogers v. Parker, 1856, 25 L. J., C. P. 220; 18 C. B. 112 ; 2 Jur. N. S. 496 ........ 79 Rolls V. Miller, 1884, 27 Ch. D. 71 ; 53 L. J., Ch. 682 ; 50 L. T. 597; 32 W. R. 806 - - - - - - - - 127 Rolph, ec p., re Spindler, 1881, 19 Ch. D. 98; 51 L. J., Ch. 88 ; 45 L. T. 482 ; 30 W. R. 52 ; 46 J. P. 181 - - - - - 276 Rose V. Haycock, 1827, 1 A. & E. 460 ; 3 X. & M. 645 - - - 119 Ross V. Army and Xavy Hotel Co., 1886, 34 Ch. D. 43; 55 L. T. 472; 35 W. R. 40 - - - - - - 320, 322, 324 Routh V. Roublot (or Boutell), 1859, 28 L. J., Q. B. 240 ; 1 E. & E. 850 ; 7 W. R. 444 ; 5 Jur. N. S. 548 - - - - - 201, 203 Roy, ex p., re Sdlence, 1877, 7 Ch. D. 70 ; 47 L. J., Bank. 36 ; 37 L. T. 508 ; 26 W. R. 82 - - - - - - - 127 Royal Marine Hotel Co., in re, 1895, 1 Jr. R. 368 ... 323 Rusden r. Pope, 1868, L. R., 3 Ex. 269 ; 37 L. J., Ex. 137 ; 18 L. T. 651 ; 16 W. R. 1122 ....... 75 Russell, ex p., re Butterworth, 1882, 19 Ch. D. .588 ; 51 L. J., Ch. 521 ; 46 L. T. 113 ; 30 W. R. 584 - . - . - . 112 Ryall r. Rowles, 1749, 1 Ves. 348 ; 2 W. & T., L. C. 799 - - 91 Sacker r. Chidley, 1865, 13 W. R. 690; 11 Jur. N. S. 654 - - 129 SafEery, ex p., re Brenner, 1881, 16 Ch. D. 668 ; 44 L. T. 324 ; 29 W. R. 749 - - - - - - - - 167, 171, 192 Saint r. Pilley, 1875, L. R., 10 Ex. 137 ; 44 L. J., Ex. 33 ; 33 L. T. 93 ; 23 W. R. 753 - - - - - - - 84 Sanders v. Davis, 1885, 15 Q. B. D. 218; .54 L. J., Q. B. .576; 33 W. R. 655 -------- - 83 Sanguinetti v. Stuckey's Banking Co., 1894 [1895] , 1 Ch. 176 ; 64 L. J., Ch. 181 ; 71 L. T. 872 - - - - - - 124 Sankey Brook Coal Co., in re, 1871, L. R., 12 Eq. 472 : 41 L. J., Ch. 119 181 Sansom v. Goode, 1819, 2 B. & A. 568 ; 1 Chit. 311 - - - 224 Scarlett v. Hanson, 1883, 12 Q. B. D. 213 . . . . 68 Schmitz, ex p., re Cohen, 1884, 12 Q. B. D. 509; 53 L. J., Ch. 1168; 50 L. T. 747 ; 32 W. R. 812 ; 1 Mor. 55 ... - 267 Schulte, e.r p., re Matanle, 1874, L. R., 9 Ch. 409; 30 L. T. 478; 22 W. R. 462 ....... 126 Scobie V. Collins, 1894 [1895], 1 Q. B. 375; 64 L. J., Q. B. 10; 71 L. T. 675 - - - - - - - - - 180, 182 TABLE OF CASES. Scott, ex p., re Hawke, 1885, 16 Q. B. D. 503 ; 55 L. J., Q. B. 302 ; 54 L. T. 54 ; 34 W. R. 168 ; 3 Mor. 1 - - - - 130 Seal V. Claridge, 1881, 7 Q. B. D. 516 ; 50 L. J., Q. B. 316 ; 44 L. T. 50] ; 29 W. R. 598 - - - - - - 168, 199, 310 Searles v. Scarlett, 1892, 2 Q. B. 56 ; 61 L. J., Q. B. 573 ; 66 L. T. 837 ; 40 W. R. 696; 56 J. P. 789 - - - - - - 317 Sedgwick v. Hillier, 1887, 31 Sol. J. 661 - - - - 302 Seed V. Bradley, 1894, 1 Q. B. 319 ; 9 R. 171 ; 63 L. J., Q. B. 387 ; 70 L. T. 214 ; 42 W. R. 465 ; 1 Mans. 289 - 249, 253, 256, 259, 286, 297, 301 Sergeant, ex p., re Gelder, 1881, W. N. 37 - - - - 42 Sewell I'. Burdick, 1884, 10 App. Ca. 74; 54 L. J., Q. B. 156 ; 52 L. T. 445 ; 33 W. R. 461 ------- 153,154 Seymour v. Coulson, 1880, 5 Q. B. D. 359; 49 L. J., Q. B. 604; 28 W. R. 664 - - ..---. 99 Sharp V. Brown, 1887, 38 Cli. D. 428; 57 L. J., Ch. 961 ; 57 L. T. 606 218 Sharp V. McHenry (1), 1886, 55 L. T. 747 - - - - 131 Sharp r. McHenry (2), 1887, 38 Cli. D. 428 ; 57 L. J., Ch. 961 ; 57 L. T. 606 - - . - - - - - 200, 207, 212 Sharpe v. Birch, 1881, 8 Q. B. D. Ill ; 51 L. J., Q. B. 64 ; 45 L. T. 760 ; 30 W. R. 428 ; 46 J. P. 246 - - - - - - 199, 201 Shaw, ex p., re Shaw, 1877, 46 L. J., Bank. 114; 36 L. T.805 ; 25 W. R. 686 -------- - 242 Shears v. Jacob, 1866, L. R., 1 C. P. 513 ; 35 L. J., C. P. 241 ; 14 L. T. 286 ; 14 W. R. 609 ------ 107,212,213,318 Sheen, ex p., re Winstanley, 1876, 1 Ch. D. 560; 45 L. J., Bank. 89; 34 L. T. 48; 24 W. R. 685 .--.-- 119,120 Sheffield &c. Building Society v. Harrison, 1884, 15 Q. B. D. 358 ; 54 L. J., Q. B. 15 ; 51 L. T.'649 ; 33 W. R. 144 - - - 81, 187 Shenstone v. Hilton, 1894, 2 Q. B. 452 ; 10 R. 390 ; 63 L. J., Q. B. 584 ; 71 L. T. 339 - - - - - - - - 44 Shepherd v. Pulbrook, 1888, 59 L. T. 288 - - - - 14, 17, 171 Sheridan v. McCartney, 1860, 11 Ir. C. L. Rep. 506; 5 L. T. 27 - 79 Shower (or Sharr) v. Pilch, 1849, 19 L. J., Ex. 113 ; 4 Ex. 478 - . 20 Shuckburgh v. Duthoit (Pike claimant), 1892, 8 T. L. R. 710 - - 268 Sibley v. Higgs, 1885, 15 Q. B. D. 619 ; 54 L. J., Q. B. 525 ; 33 W. R. 748 291 Sichel V. Mosonthal, 1862, 30 Boav. 371 ; 31 L. J., Ch. 386 - - 55 Siebert v. Spooner, 1836, 1 M. & W. 714 ; 2 Gale 135 - - - 119 Siggers v. Evans, 1855, 5 E. & B. 367 ; 24 L. J., Q. B. 705 ; 1 Jur. N. S. 851 20 Simmons v. Edwards, 1847, 16 M. & W. 838 - - - - 315 Simmons v. Huglies, 1890, 34 Sol. J. 659 - - - - 58, 252 Simmons v. Woodward, 1892, A. C. 100 ; 61 L. J., Ch. 252 ; 66 L. T. 531.; 40 W. R. 641 ----- 108, 283, 292, 294, 309 Simp.son v. Charing Cross Bank, 1886, 31 W. R. 5()S - 217, 218, 219, 221, 297 Singer Manufacturing Co. r. Clark, 1879, 5 Ex. D. 37 ; 49 li. .1., E.x. 224; 41 L. T. 591 ; 28 W. R. 170; 44 J. P. 59 - - - 44 TABLE OF CASES. PAGE Singleton, ex p., re Tritton, 1889, 61 L. T. 301 ; 6 Mor. 250 - - 01, 102 Sladden v. Sergeant, 1858, 1 F. & F. 322 - - - - 26, 202 Slade V. Rigg, 1843, 3 Hare 35 ----- - 61 Slater, ex p., re Webber, 1891, 64 L. T. 426 - - - - 158, 315 Smale v. Burr, 1872, L. R., 8 C. P. 64 ; 42 L. J., C. P. 20 ; 27 L. T. 555 ; 21 W. R. 193 - - - - - - - 194, 195 Small V. National Provincial Bank of England, 1894, 1 Ch. 686 ; 8 R. 163 ; 63 L. J., Ch. 270 ; 70 L. T. 492 ; 42 W. R. 378 - - 177 Smallman v. Pollard, 1844, 6 M. & G. 1001 ; 13 L. J., C. P. 116 ; 7 Scott, N. R. 911 ; 8 Jur. 246 ; 1 D. & L. 901 - - - - 265 Smith V. Baker, 1873, L. R., 8 C. P. 350 ; 42 L. J., C. P. 155 ; 28 L. T. 637 57 Smith r. Brown, 1879, 48 L. J., Ch. 694 . . - . 266 Smith V. Cannan, 1853, 22 L. J., Q. B. 290 ; 2 E. & B. 35 ; 17 Jur. 911 -------- - 119 Smith V. Cheese, 1875, 1 C. P. D. 60 ; 45 L. J., C. P. 156 ; 33 L. T. 670 ; 24 W. R. 368 - - - - - - - 208 Smith V. Day, 1882, 21 Ch. D. 421 ; 48 L. T. 54 ; 31 W. R. 187 - 62 Smith V. Hudson, 1865, 34 L. J., Q. B. 145 ; 12 L. T. 377 ; 13 W. R. 683 ; 11 Jur. N. S. 622 - - - - - - - 128 Smith, ex p., re Smith, 1880, L. J. N. 39 - - - - 272 Smith V. Tatton, 1879, 6 L. R. Ir. 32 - - - - - 111 Smith V. Topping, 1833, 5 B. & Ad. 674 - - - - - 129 Smith V. Wall, 1868, 18 L. T. 182 - - - - - 166, 167 Snell V. Heighten, 1883, 1 C. & E. 95 - - - - - 9 Southam, ec p., 1874, L. R., 17 Eq. 578 ; 43 L. J., Bank. 39 ; 30 L. T. 132 ; 22 W. R. 456 - - - - - - - 214, 215 Southport Banking Co. r. Thompson, 1887, 37 Ch. D. 64 ; 57 L. J., Ch. 114 ; 58 L. T. 143 ; 36 W. R. 113 - - 83, 85, 174, 178, 186 Spackman v. Miller, 1862, 31 L. J., C. P. 309; 12 C. B. N. S. 659; 9 Jur. N. S. 50 - - - - - - - 314, 316 Spencer v. Midland Railway Co., 1895, 11 T. L. R. 408 - 51, 153, 156 Spencer r. Slater, 1878, 4 Q. B. D. 13 ; 48 L. J., Q. B. 204 ; 39 L.T. 424; 27 W. R. 134 - - - - - - - 160 Spirett V. Willows, 1864, 3 De G. J. & S. 293 - - - - 111, 112 Squire r. Pardoe, 1891, 66 L. T. 242; 40 W. R. 100 ... 69 Standard Manufacturing Co., in re, 1891, 1 Ch. 627; 60 L. J., Ch. 292; 64 L. T. 487 ; 39 W. R. 369 ; 2 Meg. 418 - 94, 318, 319, 322, 323, 324 Stanford, ex p., re Barber, 1886, 17 Q. B. D. 259 ; 55 L. J., Q. B. 341 ; 54 L. T. 894; 34 W. R. 287, 507 - - 196,282,283,284,295,298 Staniforth v. Capon, 1886, 80 L. T. J. 376 - - - - 272 Stanley, in re, 1886, 17 L. R. Ir. 487 - - - - 308, 315, 316 Stanley v. Grundy, 1883, 22 Ch. D. 478 ; 52 L. J., Ch. 248 ; 48 L. T. 606; 31 W. R. 315- -...--. 183 Stansfield v. Cubitt, 1858, 27 L. J., Ch. 266; 2 De G. & J. 222; 4 Jur. N. S. 395 - - - - - - - - 195, 314 xl TABLE OF CASES. PAGE Stephenson, e.r p., re Stephenson, 18-47, 17 L. J., Bank. 5; 1 De Gex 586; 12 Jur. 6 ------- - 264 Stevens i-. Marston, 1890, 60 L. J., Q. B. 192 ; 64 L. T. 274 ; 39 W. R. 129 ; 55 J. P. 404 - - - - - - - 153, 155 Stevens, e.c p., re Stevens, 1875, L. R., 20 Eq. 786; 44 L. J., Bank. 136 ; 33 L. T. 135 ; 23 W. R. 908 - - - - - - 120, 195 Stockton Iron Co., 1879, in re, 10 Ch. D. 335 ; 48 L. J., Ch. 417 ; 40 L. T. 19;27W. R. 433 - - - - 156, 179, 180, 183, 184, 190, 318 Stooke, ex p., re Bampfield, 1872, 20 W. R. 925 .... 43 Stray, ex p., re Stray, 1867, L. R., 2 Ch. 374 ; 36 L. J., Bank. 7 ; 16 L. T. 250; 15 W. R. 600 ------ 160 Stubbins, e.c p., re Wilkinson, 1881, 17 Ch. D. 58; 50 L. J., Ch. 547; 44 L. T. 877 ; 29 W. R. 653 - - - - - 122 Sully, ex p., re Wallis, 1885, 14 Q. B. D. 950; 52 L. T. 625 ; 33 W. R. 733 ; 2 Mor. 79 ------ - 127, 315 Sutton V. Bath, 1858, 27 L. J., Ex. 388 ; 3 H. & N. 382 : 1 P. & F. 152 - 26, 114 Sutton V. Sutton, 1882, 22 Ch. D. 511 ; 52 L. J., Ch. 334 ; 48 L. T. 96 ; 31 W. R. 370 - - - - - - - 253 Swift V. Pannell, 1883, 24 Ch. D. 210 ; 53 L. J., Ch. 341 ; 48 L. T. 351 ; 31 W. R. 543 - - - - - - - 249 Swinbanks, ex p., re Shanks, 1879, 11 Ch. D. 525 ; 48 L. J., Bank. 120 ; 40 L. T. 825 ; 27 W. R. 898 - - - - - - 131 Swire r. Cookson, 1883, 49 L. T. 736 ; reversing 48 L. T. 877 (.see Cooksou V. Swire) ------- 171 Sykes v. Bond, 1861, 7 Jur. N. S. 1024 ----- 116 Symmons, ex p., re Jordan, 1880, 14 Ch. D. 693 ; 42 L. T. 106 ; 28 W. R. 803 -------- - 192 Tailby v. Official Receiver, 1886, 13 App. Ca. 523 ; 58 L. J., Q. B. 75 ; 60 L. T. 162 ; 37 W. R. 513 - - - - - 90, 94, 95 Tapiield v. Hillman, 1843, 6 M. & G. 245; 12 L. J., C. P. 311 ; 6 Scott, N. R. 967 ; 7 Jur. 771 ------ 92, 93 Tarback r. Marbury, 1705, 2 Vern.,510 ----- 112 Tarbuck, ex p., re Smith, 1894, 43 W. R. 206 - - - 214, 215, 272, 285 Taylor to Bentley, 1867, 8 B. & S. 190; 15 L. T. 467 - - - 230 Taylor v. Bowers, 1876, 1 Q. B. D. 291 ; 45 L. J., Q. B. 163 ; 34 L. T. 263 ; 24 W. R. 499 - - - - - - - 99, 110 Taylor v. Coenen, 1876, 1 Ch. D. 636 ; 34 L. T. 18 - - - 112 Taylor v. Eckersley, 1877, 5 Ch. D. 740; 36 L. T. 442; 25 W. 1{. 527 - 129 Taylor, ex p., re Goldsmid, 1886, 18 Q. B. D. 295 ; 56 L. J., Q. B. 195 ; 35 W. R. 148 - - - - - - - 122 Taylor v. McKeand, 1880, 5 C. P. D. 358 ; 49 L. J., C. P. 563 ; 42 L. T. 833 ; 28 W. R. 628 ; 44 J. P. 784 - - - - - 7-1., 190 Temple, ex j,., 1822, 1 Gl. & J. 216 - - - - - 185 TABLE OF CASES. xli PAGE Tennant v. Howatson, 1888, 13 App. Ca. 489; 57 L. J., P. C. 110; 58 L. T. 646 - - - - - - 163, 256, 258, 259 Thomas v. Harris, 1858, 27 L. J., Ex. 353 - - - - 57 Thomas v. Kelly, 1888, 13 App. Ca. 506 ; 58 L. J., Q. B. 66 ; 60 L. T. 114; 37 \V. R. 353 - 164, 249, 250, 251, 253, 2.56, 257, 258, 259, 280, 283, 285, 286, 301, 308 Thomas v. Searles, 1891, 2 Q. B. 408; 60 L. J., Q. B. 722 ; 65 L. T. 39; 39 W. R. 692 - - - - 68, 104, 215, 226, 254, 279 Thompson v. Cohen, 1872, L. R., 7 Q. B. 527 ; 41 L. J., Q. B. 221 ; 26 L. T. 693 - - - - - - 93, 94, 235 Thomson v. Barrett, 1860, 1 L. T. N. S. 268 - - - 11, 31, 32, 216 Thomson v. Pettitt, 1847, 16 L. J., Q. B. 162; 10 Q. B. 101 ; 11 Jur. 748 -------- - 84 Thome v. Cann, 1894 [1895], A. C. 11 - - - - - 70 Thornton v. Adams, 1816, 5 M. & S. 38 - - - - - 265 Thorp V. Browne, 1867, L. K., 2 H. L. 220 ; 15 W. R. 1146 - - 203 Thorpe v. Cregeen, 1885, 55 L. J., Q. B. 80 ; 33 W. R. 844 - - 289, 290 Throssell v. Marsh, 1885, 53 L. T. 321 - - - - - 211 Todd, ex p., re Ashcroft, 1887, 19 Q. B. D. 186 ; 56 L. J., Q. B. 431 ; 57 L. T. 835 ; 35 W. R. 676 ; 4 Mor. 209 - - - - 124 Tomlinson v. Consolidated Credit Corporation, 1889, 24 Q. B. D. 135 ; 62 L. T. 162 ; 38 W. R. 118 ; 54 J. P. 644 - - - - 265, 313 Toms V. Wilson, 1863, 32 L. J., Q. B. 33, 382 ; 4 B. & S. 442 ; 8 L. T. 798 ; 11 W. R. 952 ; 10 Jur. N. S. 201 - - - - - 71, 72 Tophara V. Grecnside Firebrick Co., 1887, 37 Ch. D. 281 ; 57 L. J., Ch. 583 ; 58 L. T. 274 ; 36 W. R. 464 - - - - 178, 185, 321, 324 Topley V. Corsbie, 1888, 20 Q. B. D. 350; 57 L. J., Q. B. 271 ; 58 L. T. 342 ; 36 W. R. 352 - - - - - - 299, 300, 301, 304 Toppin V. Buckerfield, 1883, 1 C. & E. 157 - - - - 267 Townend v. Toker, 1866, L. R., 1 Ch. 446; 35 L. J., Ch. 608; 14 L. T. 531 ; 14 \V. R. 806 ; 12 Jur. X. S. 477 - - - - 114 Tozer r. Discount Banking Co., 1894 (not reported) ... 67 Trades Auxiliary Co. r. Middlesbrough &c. Association, 1889, 40 Ch. D. 425; 58 L. J., Ch. 293 ; 60 L. T. 681 ; 37 W. R. 337 - - 317 Trevor, ex p., re Burghardt, 1875, 1 Ch. D. 297 ; 45 L. J., Bank. 27 ; 33 L. T. 756 ; 24 W. R. 301 ..... 72 Trinder v. Eaynor, 1887, 56 L. J., Q. B. 422 - - - . 231, 311 Trousdale v. Sheppard, 1862, 14 Ir. C. L. Kep. 370 - - - 208 Truman v. Redgrave, 1881, 18 Ch. D. 547 ; 50 L. J., Ch. 830; 45 L. T. 605 ; 30 W. R. 421 - . - - - - . 61 Tuck V. Southern Counties Deposit Bank, 1889, 42 Ch. D. 471 ; 58 L. J., Ch. 699 ; 61 L. T. 348 ; 37 W. R. 769 - 18, 20, 103, 110, 111, 149, 200, 225, 226, 227, 230, 254 Turcan, in re, 1888, 40 Ch. D. 5 ; 58 L. J., Ch. 101 ; 59 L. T. 712 ; 37 W. R. 70 - - - - - - - - 95 xlii TABLE OF CASES. PAGE Turner v. Barnes, 1862, 31 L. J., Q. B. 170 ; 2 B. & S. 435 ; 10 W. R. 561 ; 9 Jur. N. S. 199 - - - - - - 180 Turner v. Cameron, 1870, L. R., 5 Q. B. 306 ; 39 L. J., Q. B. 125 ; 22 L. T. 525 ; 18 W. R. 544; 10 B. & S. 931 - - - 80, 81, 82 Turner r. Culpan, 1888, 58 L. T. 340; 36 W. R. 278 - - 237,299,300 Turner v. Hockey, 1887, 56 L. J., Q. B. 301 .... 53 Turquand, ex p., re Parker, 1885, 14 Q. B. D. 636 ; 54 L. J., Q. B. 242 ; 53 L. T. 579 ; 33 W. R. 437 - - - - 43, 65, 128, 149, 228 Tufcon V. Sanoner, 1858, 3 H. & N. 280; 27 L. J., Ex. 293 ; 6 W. R. 545 ; 4 Jur. N. S. 365 . - - - . . 207, 209, 212 Tweedale, ex p., re Tweedale, 1892, 2 Q. B. 216; 61 L. J., Q. B. 505 ; 66 L. T. 233 ; 9 Mor. 110 ----- . 122, 196 Tweedy, ex p., re Trethowan, 1877, 5 Ch. D. 559 ; 46 L. J., Bank. 43 ; , 36L. T. 70; 25 W. R. 399 ----.. 88 Twyne's Case, 1601, 3 Coke 80 ; 1 Sm. L. C. 1 . - - . 114,117 Union Bank of London v. Lenanton, 1878, 3 C. P. D. 243 ; 47 L. J., C. P. 409 ; 38 L. T. 698 - - - - - . 162 United Forty Pound Loan Club v. Bexton, 1890 [1891], 1 Q. B. 28 n - 38, 41 Usher t). Martin, 1889, 24 Q. B. D. 272; 59 L. J., Q. B. 11; 61 L. T. 778 - - - . . - .68, 104, 210, 254, 273 Vale, e.B p., re Bannister, 1881, 18 Ch. D. 137; 50 L. J., Ch. 787; 45 L. T. 200 ; 29 W. R. 855 - - - - - . 126 Vaux, ex p., re Couston, 1874, L. R., 9 Ch. 602; 43 L. J., Bank. 113; 30 L. T. 739 ; 22 W. R. 811 - - - - - - 128, 163 Venour's Settled Estate, iyi re, 1876, 2 Ch. D. 522 ; 45 L. J., Ch. 409 ; 24 W. R. 752 . - - - - - - 253 Vernon v. Cooke, 1880, 49 L. J., C. P. 767 - - - - 238 Vicarino v. Hollingsworth, 1869, 20 L. T. 362 ; 17 W. R. 613 - - 127, 128 Victoria Dairy Co. of Worthing v. West, 1895, 11 T. L. R. 233 - - 17, 41 Villars, ex p., re Rogers, 1874, L. R., 9 Ch. 432; 43 L. J., Bank. 76; 30 L. T. 348 ; 22 W. R. 603 - - - - - - 26 Voisey, ex p., re Knight, 1882, 21 Ch. D. 442 ; 52 L. J., Ch. 121 ; 47 L. T. 362 ; 31 W. R. 19 - - - - - - - 180, 184 Vulcan Iron Works, in re, 1888, W. N. 37 - - - - 148 Waddington v. Roberts, 1868, L. R., 3 Q. B. 579 ; 37 L. J., Q. B. 253 ; 9 b! & S. 697; 18 L. T. 855 ; 16 W. R. 1040 ... 237 Wale V. Commissioners of Inland Revenue, 1879, 4 Ex. D. 270; 48 L. J., Ex. 574 ; 41 L. T. 433 ; 27 W. R. 916 - - . - 66 Walker v. Clay, 1880, 49 L. J., C. P. 560 ; 42 L. T. 369 ; 44 J. P. 396 - 73, 266 Walker v. Giles, 1849, 18 L. J., C. P. 323; 6 C. B. 662 ; 13 Jur. 753 . 181 Walker i-. Jones, 1865, L. R., 1 P. C. 50; 35 L. J., P. C. 30 ; 14 L. T.686; • 14 W. R. 484 ; 12 Jur. N. S. 381 - - - - - 63, 65 TABLE OF CASES. xliii 97 Waller v. Drakeford, 1853, 22 L. J., Q. B. 274 ; 1 E. & B. 749 ; 17 Jur. 853 - Walliiigford r. Mutual Society, 1880, 5 App.Ca. 685 ; 50 L. J., Q. B. 49; 43 L. T. 258; 29 W. R. 81 ------ 289 WalHs V. Sayers, 1890, W. N. 120 - - - - " ^6, 57 WalHs r. Smith, 1882, W. N. 77 - - - - - - 206 Walmsley r. Milne, 1859, 29 L. J., C. P. 97; 7 C. B. N. S. 115; 1 L. T. 62 ; 6 Jur. N. S. 125 - - - - - - 81, 82, 83 Walroud v. Goldmann, 1885, 16 Q. B. D. 121 ; 55 L. J., Q. B. 323 ; 53 L. T. 963 ; 34 W. R. 272 - - - - - " 102, 255 Wansbrough v. Maton, 1836, 4 A. & E. 884 ; 6 X. & M. 367 ; 2 H. & W. 37 -------- - ^1 Ward, ex p., re Couston, 1872, L. R., 8 Ch. 144 ; 42 L. J., Bank. 17 ; 27 L. T. 502 ; 21 W. R. 115 - - - - - - 129 Ward V. Macauley, 1791, 4 T. R. 489 - - - - - 42 Warner v. Jacob, 1882, 20 Ch. D. 220 ; 51 L. J., Ch. 642 ; 46 L. T. 656 ; 30 W. R. 721 ; 46 J. P. 436 - - - - - - 60 Waterfall v. Penistone, 1857, 26 L. J., Q. B. 100 ; 6 E. & B. 876 ; 3 Jur. N. S. 15 83, 86, 87 Waterton v. Baker, 1868, 17 L. T. 494 - - - - - 68, 235 Watkins v. Birch, 1813, 4 Taunt. 823 - - - - - 115, 116 Watkins, ex p., re Couston, 1873, L. R., 8 Ch. 520 ; 42 L. J., Bank. 50 ; 28 L. T. 793 ; 21 W. R. 530 - - - - - - 128, 163 Watkins V. Evans, 1887, 18 Q. B. D. 386 ; 56 L. J., Q. B. 200; 56 L. T. 177;35W. R. 313 ----- 59,60,291,298,313 Watson, ex p., re Love, 1877, 5 Ch. D. 35 ; 46 L. J., Bank. 97 ; 37 L. T. 75;25W. R. 489 - - - - - - - 156 Watson r. Strickland, 1887, 19 Q. B. D. 391; 56 L. J., Q. B. 594; 35 W. R. 769 ...-.- 68, 296, 300, 304 Wayne v. Hanham, 1851, 9 Hare 62 ; 20 L. J., Ch. 530 - - - 61 Weardale Coal and Iron Co. v. Hodson, 1894, 1 Q. B. 598; 9R. 844; 63 L. J., Q. B. 391 ; 70 L. T. 632 ; 42 W. R. 424 ; 1 Mans. 396 283, 293, 300, 305, 308 Weaver r. Joule, 1857, 3 C. B. N. S. 309 - - - - 116 Webster r. Blackman, 1861, 2 F. & F. 490 - - - - 115 Webster, ex p., re Morris, 1882, 22 Ch. D. 136 ; 52 L. J., Ch. 375 ; 48 L. T. 295 ; 31 W. R. Ill - - - - - - 230, 232 Weeks v. Maillardet, 1811, 14 East 568 . . - - 23 Welsted & Co., Debenture-holders of, r. Swansea Bank, 1889, 5 T. L. R. 332 -------- - 321,322 Wenman r. Lyon, 1891, 2 Q. B. 192, affirming 1 Q. B. 634 ; 60 L. J., Q. B. 223, 663 ; 64 L. T. 88 ; 65 L. T. 136 ; 39 W. R. 301, 519 - - 161 Wensley, ex p., 1862, 32 L. J., Bank. 23 ; 1 De G. J. & S. 273 ; 7 L. T. 548; 11 W. R. 241 ; 9 Jur. N. S. 315 . . - . 118 West r. Fritchc, 1848, 18 L. J., Ex. 50 ; 3 Ex. 216 - - - 181 xliv TABLE OF CASES. PAGE West V. Steward, 1845, 14 M. & W. 47 - - - - - 24 Westbury v. Clapp, 1864, 12 W. R. 511 ; 3 N. R. 453 - - - 114 West London Commercial Bank v. Reliance &c. Building Society, 1885, 29 Ch. D. 954 ; 54 L. J., Ch. 1081 ; 53 L. T. 442 ; 33 W. R. 916 - 60 Western Wagon Co. v. West, 1891 [1892], 1 Ch. 271 ; 61 L. J., Ch. 244; 66 L. T. 402 ; 40 W. R. 182- - - - - - 55 Wharlton r. Kirkwood, 1874, 29 L. T. 644 ; 22 W. R. 93 - - 72 Wheeler v. Montefiore, 1841, 2 Q. B. 133 ; 1 G. & D. 493 ; 6 Jur. 299 - 71 WTiite V. Morris, 1852, 21 L. J., C. P. 185 ; 11 C. B. 101.3 ; 16 Jur. 500 70, 110 White to Rubery, 1894, 2 Q. B. 923; 10 R. 429; 64 L. J., Q. B. 137; 71 L. T. 614 ; 1 Mansou 378 - - - - - - 235 Whiteley, e.r p., re Chapman, 1894, 1 Manson 415 ... 43 Whitmore r. Claridge, 1863, 33 L. J., Q. B. 87 : 9 L. T. 451 ; 12 W. R. 214 -------- - 119 Whitmore v. Empson, 18.57, 26 L. J., Ch. 364; 23 Beav. 313 ; 3 Jur. N. S. 230 - - - - - - - - 82 Whittaker, ex p., re Gelder, 1880, W. N. 171 - - - - 41 Whittaker, in re, Whittaker v. Whittaker, 1882, 21 Ch. D. 657 ; 51 L. J., Ch. 737 ; 46 L. T. 802 ; 30 W. R. 787 - - - - 21 Whitwell r. Thompson, 1793, 1 Esp. 68 - - - - - 119 Wilkinson, ea? p., re Bury, 1883, 22 Ch. D. 788; 52 L. .L, Ch. 657; 48 L. T. 495 ; 31 W. R. 649 - - - - - - 120 Wilkinson V. Girard, 1891, 7 T. L. R. 266 - - - - 50 Williams v. Burgess, 1840, 12 A. & E. 635 ; 9 Dowl. 544 ; 4 P. & D. 443 242 Williams v. Evans, 1856, 23 Beav. 239 - - - - - 83 Williams v. Gerry, 1842, 10 M. & W. 296; 11 L. J., Ex. 389; 2 Dowl. N. S. 201 - - - - - - - - 239 Williams v. Millington, 1788, 1 H. Bl. 81 - - - - 44 Williams v. Rymer, 1895, 99 L. T. J. 194 - - - - 236 Williams, ex p., re Sari, 1892, 2 Q. B. 591 ; 67 L. T. 597 ; 9 Mor. 263 - 101, 255 Williams v. Smith, 1888, 22 Q. B. D. 134 ; 58 L. J., Q. B. 21 ; 59 L. T. 757 ; 37 W. R. 93 ; 52 J. P. 823 - - - - - 317 Williams v. Stern, 1879, 5 Q. B. D. 409 ; 49 L. J., Q. B. 663 ; 42 L. T. 719 ; 28 W. R. 901 - - - - - - - 59, 262 Williams, ex p., re Thomp.son, 18/7, 7 Ch. D. 138; 47 L. J., Bank. 26; 37 L. T. 764 ; 26 W. R. 274 - - - - - - 183 Wilson, e.r p., re Butterworth, 1835, 4 D. &. C. 143 ... 82 Wilson V. Kirkwood, 1883, 48 L. T. 821 - - - - 288, 289, 290 Wilson r. Wathcrspoon, 1881, 71 L. T. J. 230 .... 194 Wiltshear v. Cottrell, 1853, 22 L. J., Q. B. 177 ; 1 E. & B. 74; 17 Jur. 758 - - - - - •• - - - 80, 81 Wimbledon Local Board v. Underwood, 1892, 1 Q. B. 836; 61 L. J., Q. B. 484; 67 L. T. 55 ; 40 W. R. 640 ; 56 J. P. 633 - - 314 Winn r. hiKilby, 1822, 5 B. & A. 625 - - - . . 82 Winter, cj: p., re Fothergill, 1881, 44 L. T. 323 ; 29 W. R. 575 - - 272, 278 TABLE OF CASES. xlv Winter, ex p., re Softley (see Hodgkin, ex p. ) Winter v. Winter, 1861, 4 L. T. 639 ; 9 W. R. 747 - - - 21 Witt V. Banner, 1887, 20 Q. B. D. 114; 57 L. J., Q. B. 141 ; 58 L. T. 34; 36 VV. R. 115 - - - - - - - 252 Wolfe (or Chapman), ex p., re Davey, 1881, 44 L. T. 321 ; affirmed 45 L. T. 268 - - - - - - - 210 Wood, in re, 1872, L. R., 7 Ch. 302 ; 41 L. J., Bank. 21 ; 26 L. T. 113 ; 20 W. R. 403 - - - - - - - 119 Wood V. Dixie, 1845, 7 Q. B. 892; 9 Jur. 796 - - - - 114 Wood V. Manley, 1839, 11 A. & E. 34 ; 3 P. & D. 5 ; 3 Jur. 1028 - 153 Wood V. Rowcliffe, 1851, 20 L. J., Ex. 285 ; 6 Ex. 407 - - - 25 Woodgate v. Godfrey, 1879, 5 Ex. D. 24; 49 L. J., Ex. 1 ; 42 L. T. 34; 28 W. R. 88 - - - - - - 7, 9, 10, 13, 32 Woodhouse v. Murray, 1868, L. R., 4 Q. B. 27 ; 9 B. & S. 720; 38 L. J., Q. B. 28 ; 19 L. T. 570 ; 17 W. R. 206 - - - - 119 Woodward v. Heseltine, 1891, 1 Ch. 464; 60 L. J., Ch. 357 ; 64 L. T. 303 ; 39 W. R. 405 - - - - - - - 108 Woolfe, ex p., re Wood, 1894, 1 Q. B. 605 .... 262 Woollen V. Wright, 1862, 31 L. J., Ex. 513; 1 H. & C. 554; 7 L. T. 73 - 267 Wordall v. Smith, 1808, 1 Camp. 333 - - - - - 115 Wright, re, 1856, 27 L. T. O. S. 192 - - - - - 233 Wright V. Horton, 1887, 12 App. Ca. 371 ; 56 L. J., Ch. 873 ; 56 L. T. 782 ; 36 W. R. 17 ; 52 J. P. 179 - - - - - 319 Wulff V. Jay, 1872, L. R., 7 Q. B. 756 ; 41 L. J., Q. B. 322 ; 27 L. T. 118; 19 W. R. 1112 - - - - - - - 63, 64, 261 Wyatt V. Barwell, 1815, 19 Ves. 435 - - - - - 226 Yardley v. Arnold, 1842, Car. & M. 434 . - . . 116 Yarmouth v. France, 1887, 19 Q. B. D. 647 ; 57 L. J., Q. B. 7 ; 36 W. R. 281 -------- - 258 Yarrow, m re, Collins v. Weymouth, 1889, 59 L. J., Q. B. 18 ; 61 L. T. 642 ; 38 W. R. 175 - - - - - - - 15, 38 Yates V. Ashcroft, 1882, 47 L. T. 337 ; 31 W. R. 156 - - - 202 Yates, «i re, Batcheklor v. Yates, 1888, 38 Ch. D. 112 ; 57 L. J., Ch. 697 ; 59 L. T. 47 ; 36 W. R. 563 - - -' 29, 85, 175, 176, 177, 185, 2.50 Yorke v. Smith, 1851, 21 L. J., Q. B. 53 ; 16 Jur. 63 - - - 152, 190 Yorkshire Wagon Co. r. Maclure, 1882, 21 Ch. D. 309; reversing 19 Ch. U. 478 ; 51 L. J., Ch. 857 ; 47 L. T. 290 ; 30 W. R. 761 - - 34, 35, 64 Young V. Fletcher, 1865, 34 L. J., Ex. 154 ; 3 H. & C. 732 ; 12 L. T. 392; 13 W. R. 722 ; 11 Jur. N. S. 449 . . . - . lis Young, ex p., re Symonds, 1880, 42 L. T. 744 ; 28 W. R. 924 - - 208 LIST OF STATUTES REFERRED TO. PAGE 1381. 5 Rich. II. c. 8 (Forcible Entry) ... - 302 1571. 13 Eliz. c. 5 (Fraudulent Conveyances) 109, 118, 126, 130, IGO, 161, 190, 195 Section 1 . - - - - 109 Section 5 - - - - - 113 1677. 29 Car. II. c. 3 (Statute of Frauds) - - - - Section 4 - - - - - 79, 83, 84 Section 7 - - - - - 21 Section 15- - - - - 97 Section 17- - - - 7,10,79,83,84 1709. 8 Anne c. 14 (Landlord and Tenant) - - - 265 1737. 11 Geo. II. c. 19 (Landlord and Tenant) - - 264, 265, 313 Section 8 - - - - - 79 1815. 55 Geo. III. c. 184 (Stamp Duties) . . - . 240 1816. 56 Geo. III. c. 50 (Landlord and Tenant) - - - 78 Section 11 - - - - 166 1822. 3 Geo. IV. c. 39 (Warrants of Attorney) - - 213, 222, 223, 235 1845. 8 & 9 Vict. c. 16 (Companies Clauses) - - - - 318, 322 1849. 12&13 Vict. c. 106 (Bankruptcy), Section 136 - - - 222,223 1851. 14 & 15 Vict. c. 99 (Law of Evidence Amendment), Section 14 - 236 1854. 17 & 18 Vict. c. 104 (Merchant Shipping) . . - - 161, 162 1856. 19 & 20 Vict. c. 97 (Mercantile Law Amendment), Section 1 - 97 1861. 24 & 25 Vict. c. 134 (Bankruptcy) - - . . - 159 1862. 25 & 26 Vict. c. 89 (Companies) ----- 318, 322 1867. 30 &31 Vict. c. 103 (Factory Acts Extension) - - . 178 1868. 31 & 32 Vict. c. 54 (Judgments Extension) . - - 163 1869. 32 & 33 Vict. c. 62 (Debtors), Section 11 . - - 255 Section 26 . . . . 222, 223 1869. 32 & 33 Vict. c. 71 (Bankruptcy) . - - - 124, 240 Section 34- - - - - 183 Section 60- ... - 310 Section 74- . - . . 27 1870. 33 & 34 Vict. c. 97 (Stamps) - ... - 240 1873. 36 & 37 Vict. c. 66 (Judicature) - - - - 75,232,241 Section 100 - - - - 267 1875. 38 & 39 Vict. c. 55 (Public Health) Sections 256, 261 - - 314 LIST OF STATUTES. xlvii PAGE 1875. 38 & 39 Vict. c. 77 (Judicature) - - - 232, 241 Section 10 - - 190 Section 26 . . 240 1878. 41 Vict. c. 16 (Factory and Workshop) - - 178 1879. 42 & 43 Vict. c. 50 (Bills of Sale, Ireland) - 243 1881. 44 & 45 Vict. c. 41 (Conveyancing) - 59 Section 7 - . 284 Section 17 - 68 Section 19 - 175, 302 Section 20 - 302 Section 21 (2) - 61 Section 23 . 298 Section 46 - 105 1881. 44 & 45 Vict. c. 68 (Judicature), Section 19 - 241 1882. 45 & 46 Vict. c. 39 (Conveyancing) - Section 2 - 317, 336 Sections 8, 9 - 105 1883. 46 Vict. c. 7 (Bills of Sale, Ireland) - 324 1883. 46 & 47 Vict. c. 52 (Bankruptcy) - Section 4 (1) 118, 123, 160 Section 6 (1) - 125 Section 42 . 183, 264 Section 43 - 124 Section 44 125, 127 241, 325 Sections 45, 46 - - 125, 267 Section 47 123 125, 161 Section 48 121, 125, 196 Section 49 125 126, 130 Section 96 - 310 Section 102 - 130 Section 145 - 26 Section 149 - 241, 310 Section 168 - 125 Schedule I., Rules 10, 12 - - 132 Schedule II., Rules 9—17- - 132 Schedule III. - 310 1887. 50 & 51 Vict. c. 57 (Deeds of Arrangement) - 158, 160 1889. 52 & 53 Vict. c. 45 (Factors), Section 9 - - 43, 44 1890. 53 & 54 Vict. c. 71 (Bankruptcy) - Section 12 - 26 Section 28 - 183, 264 1891. 54 & 55 Vict. c. 39 (Stamps) . . - - 239 Section 15 - 239 Section 41 - - 213, 239 Section 88 - - 239 xlviii LIST OF STATUTES. PAGE 1893. 56 & 57 Vict. c. 66 (Rules Publication) .... 241 1893. 56 & 57 Vict. c. 71 (Sale of Goods) .... Section 2 - - - - - 105 Section 4 - - . - 7, 10, 79, 84 Section 17 - - - - 6 Section 26 .... 96, 114 Section 60 . - . . 10 Section 61 (3) - . . - 6 Section 62 - - . - 84 1894. 57 & 58 Vict. c. 16 (Judicature), Section 4 - - . 241 1894. 57 & 58 Vict. c. 56 (Statute Law Revision) - . . 147, 242 1894. 57 & 58 Vict. c. 60 (Merchant Shipping) Sections 24—38 .... 162 1895. 58 Vict. c. 16 (Fiuance), Section 15 ... 239 LIST OF ORDERS AND RULES. Reg. Gen. Mich., 43 Geo. III. - R. S. C. 1883, Order III. Rule 6 - XIV. XXXVII. Rule 4 - XXXVIII. Rules 16, 17 XLIII. Rules 8—15 LVII. LVII. LXI. LXI. LXI. LXI. LXI. LXI. LXI. LXIII. LXIII. LXIV. Rule 12 - - - - Rule 1 - Rule 7 - Rule 18 - - Rule 23 - - - - Rule 25 - - - - Rules 26, 27 - Rule 28 - - - - Rule 6 .... Rule 9 .... Rule 3 - - - - R. S. C. Bills of Sale Acts, 1878 and 1882 (December, 1883), Rules 1—11 J) ,, „ „ „ Rule 12 Central Office Practice Rules (March, 1884) - - . . Order as to Supreme Court Fees, 1884 - . . . . Order as to Stamps ....... PAGE 222 182 182 236 238 26 267 68 232 236 231 317 232 68, 234 236 241 317 241 311, 312 238 235 239, 317 239 ADDENDA ET CORRIGENDA. Page 25, note (c). Add " cf. In re Royal Marine Hotel Co., 1895, 1 Ir. R. 368." Page 43, line 13. Ex 'parte Crossley, re Peel, was affirmed by the House of Lords on the ground that the property in the chattel had not passed to the hirer, and that the transaction was not within the Bills of Sale Acts, the claim of the assignees under the reputed ownership clause being abandoned (McEntire r. Crossley Brothers, 1895, A. C. 457). Page 56, line 16. For "grantor" read "grantee." Pages 94 and 95. For "In re Carter" read " f « re Clarke." Page 120, line 3 of note (o). After "A. C. 135" insert "See also Morris c. Morris, 1895, A. C. 625 ; 72 L. T. 879." Page 172, line 7. Add " Where furniture comprised in an unregistered post-nuptial settlement was kept in a house occupied by the wife under the trusts of another settlement, the trustees of which paid the rent, Vaughan Williams, J., held that the furniture, with which the wife had dealt as her own, was not in the apparent possession of her husband, who lived in the house with her (In re Satterthwaite, 1895, 2 Manson 52)." Page 190, line 16. After " Sale " insert " See also In re Royctl Marine Hotel Co., 1895, 1 Ir. 11. 368 ; pjst, p. 323." PART I. GENERAL INTRODUCTION. CHAPTER I PRELIMINARY. A BiM, (IF Sam:, at Coniuion Law, may be defined as a grant or conveyance, whether absolute or Ijy way of secui-ity, (jf the general property in personal chattels, generally unaccompanied by a transfer of possession. " An assignment, or liargaiii and sale, of chattels personal by an instrument in writing (whether the transaction be between buyer and seller oi- not) is ordinai-ily denominated a Bill of Sale" (a). An important distinction exists between a Uill ot Sale which transfers the property out and out to the grantee, and a Bill of Sale under which the grantor still retains some legal or equitable intei'est in the chattels, the transfer of property being subject to a defeasance, condition, or declaration of trust in his favour. This distinction existed indejiendent of Statute. Under the Bills of Sale Acts, such a defeasance, condition, or declaration of trust is deemed to be part of the Bill of Sale (/;). This distinction does not exactly coincide with the distinction drawn by the Act of 1882 between Bills of Sale given in security, and Bills of Sale given otherwise than in security, foi' the payment of money (c). Under that Statute, a Bill of Sale which is defeasible, or conditioned to l)e void, or subject to a trust depending on sonic other event than the p.ayment of money, must be dealt with on the same footing as an Absolute Bill of Sale. Such securities, however, are seldom, if ever, met with in practice. The restrictions imposed by the Bills of Sale Acts were rendered necessary by the practical consequences arising from the severance between pi-operty and possession of chattels. The legislation witli i"espect to Bills of Sale Avas an offshoot from the Common and Statute Law relating to fraudulent conveyances (d). («J Stephen's Comni. ii. iH. (0) Act of 1878, Section 10. (c) Act of 1882, Section 3. (d) See Chapter IX., /«;»/. For h statement of this relation see the speech of Lord Black- burn in ViKikmii c. Sirin, lS-^1, ',1 Apj). Ca. (i.>5. 1! PRELIMINARY. Tlie primary object of the repealed Act of 1854 and of the Act of 1878 is well defined by the preamble to the former Act, which recited that " frauds are frequently committed upon creditors by secret Bills of Sale of personal chattels, whereby persons are enabled to keep up the appeaiunce of being in good circumstances and possessed of property, and the grantees or holders of such Bills of Sale have the power of taking possession of the pi'operty of such persons to the exclusion of the rest of their creditors." Registration was accordingly introduced for the protection of creditors. A}i iinregistei'ed deed was to be " deemed to be fraudulent and void " as against creditors if the chattels remained in the possession, or apparent possession, of the grantor ; and it was not necessary for creditors to show that the ti'ansaction was actually fraudulent. But an unregistei-ed deed was not avoided as between grantor and grantee. The Act of 1882 was intended ])rimarily " to prevent needy persons being' entrapped into signing complicated documents which they might often be unable to comprehend, and so being subjected by their creditoi's to the enforcement of harsh and unreasonable provisions" (e). In order to protect borrowers against the devices of money-lenders, the Act regulates the terms and even the foi'm of the contract (/), the operation of the Bill of Sale as an assignment of chattels ((/), and the i-ight of the grantee to take possession of the chattels and realise his security (h). But it should be borne in mind that the Act is not confined to Bills of Sale given t(j secure the repayment of money borrowed : it extends to all Bills of Sale given by way of secui-ity for the payment of money (/). In order to effect these purposes, many documents are declared to be Bills of Sale within the Acts (y), or are to be deemed to be Bills of Sale within the Acts (k), which are not Bills of Sale at Common Law. And the scope of the Acts is defined and limited ])}- a definition of what are personal chattels (/), or are to be (Iceiiu'd to be personal chattels for the purposes of the Acts (ni). Upon tlifsc cardinal definitions all the extant legislation turns. Since the first Bills of Sale Act of 1854 a great change has insensibly passed over the views of the Legislature and the Courts with ref(!rence to ]?ills of Sale. The language of the later Acts has iKit been consistently adjusted in accordance with the change (e) Lord Herschell in Maiichcufer 4c. liailn-ay Co. v. North Central Wagon Co., 1888, 13 App. Ca. 554. (f) See Sections i) luid 12, mid notes to tlic statutory form, po!, and C. (Ii) See Sections 7 and 13. (/) Sec Section 3. (,/) Act of 1878, Section 4. (Ir) Jliid., Sections "> iitid (i. (/) JliUh, Section 4. (»i) Iliirl., Section 5. TIIK HILl.S OF SALK ACTS. 3 of view ; and the oases contain expressions, sometimes erroneous, more often anibio-uous antl hesitating-, which may easily mislead anyone who overlooks the fundamental character of that change. (1) The dominant conception of the Act of 1854 was that of a Bill of Sale as an assignvient or conveyance of chattels ; and this conception pervades also the Act of 1878. In the Act of 1882 the dominant conception is that of a Bill of Sale as a contract creating a security on chattels. For example, the Acts of 1854 and 1878 speak of a " defeasance," that is, of the conveyance ; while the Act of 1882 uses the expression " term for defeasance of the security." The influence of the later conception has un- consciously affected the Courts in construing the language of the Act of 1878 (»). (2) The Act of 1854 looked throughout to the date, not of the execution of the Bill of Sale, but of the contest which arose when a person claimetl chattels under a Bill of Sale as against an execution creditor or an assignee in bankruptcy &c. of the grantor. There was nothing in the Act to defeat or invalidate an unregistered Bill of Sale except in the event of an execution, or bankruptcy, or an assignment for the benefit of ci*editors, and the avoidance related only to chattels in the possession of the grantor at that date. The provisions of the Act of 1878, with one exception (o), look always to the same date, and an unregistered Bill of Sale is avoided under the Act only as to chattels then in the actual or apparent possession of the grantor. The Act of 1882, on the other hand, looks chiefly to the date of the Bill of Sale, and avoids ab initio the title of the gi'antee if he fails to register his security. To the neglect of this distinction nuiv i)i'obably be attributed two misapprehensions — (a) It is sometimes imagined that if the chattels comprised in a Bill of Sale are not in the possession of the grantor when the Bill of Sale is executed, it is unnecessary to register under any of the Acts : a popular fallacy hardly deserving- notice, (b) It has recently been argued that the definition of personal chattels in the Act of 1854, and also in the Act of 1878, excludes future or after- acquired chattels, from which it would follow that in a contest between an execution creditor and a claimant under a Bill of Sale evidence Avould be admissible to show that at the date of the Bill of Sale the chattels in question had not been in existence or had not been the property of the grantor, and the title of the claimant would prevail as to such chattels even if the Bill of Sale were unregistered. Such evidence has never been tendered ; there is an overwhelming preponderance («) See the decisions as to the word "condition," note (<•) to Section 10 of the Act of 1878. (o) Section 10, as to i)riority. PRELIMINARY. of authority — at least, negatively — against the ai'gument ; but the high authority on which it is propounded makes it necessaiy to indicate the source of its plausibility f^j). (3) A third, but more doubtful, consequence of the chauge of view may be suggested. If the grantee of an unregistered Bill of .Sale had taken actual possession befoi'e the ci'itical contest arose, his title was unassailable iinder the Act of 1854 ; for the deed, though uni^egistered, was valid between grantoi- and grantee. And this is so under the Act of 1878, except in one respect. But under the Act of 1882 possession taken under an unregistered instrument is of no avail, for the title is avoided even between gi-antor and grantee unless the Bill of Sale is registei-ed within seven days. Tlie exceptional provision of the Act of 1878, which marks the transition from the eai'lier to the later view, is that which regulates the priority of Bills of Sale according to the respective dates of registration. The Courts, perhaps rightly, rejected the contention that this was intended to apply only to the ranking of Bills of Sale in the event of bankruptcy or execution. Bu.t a more recent decision, that an unregistered Absolute Bill of Sale may be ousted by another Absolute Bill of Sale executed and registered long after actual possession has been taken under the prior Bill, appears to be contrary to the intention of the Act of 1878, and to be inspired by the influence of the Act of 1882. The assumption that possession has not been taken — in other words, that the Bill of Sale is still in force as a power whereby possession may be taken — seems to underlie the provisions of the Act of 1878, not only as to prioiity (ly), but also as to transfer or assignment (r), and satisfaction (s). It has often been said that the Bills of Sale Acts strike at documents, not transactions. This observation has two bearings, (ju the one hand, it helps to determine in particular cases whether a document is or is not an assurance, and, therefore, a Bill of Sale wiiliiii the Acts: foi' a document is not generally held to be a l)ill (if Sale unless sonu' tith' oi- transaction depends upon it, citlici' as an opei-ative inst i-iiniciit passing the property oi- as the only adniissihic evidence hv which the title or ti-ansaction can be proved. In the possihh' case of a person having two titles to a chatteh I he tact that one of them may be avoided by the provisions of the Acts (hies not prevent him resting upon the othci-. On the othei- haml. it is a useful reminder that transactions which ai-e effected hy pai-ol and can be established by parol evidence arc not touchcil hy the Hills of Sale Acts, although they may be entirely within the inischier at which the Acts wei'e ip) See iiotu (7) to Section I i,{ the Act of ls7.s, and note (c) to Section (> of the Act of 18S2. (f/) Section 10. ()•) Sections |o ;nnl 11. (k) Section 1."). THE I5ILLS OF SALE ACTS. aiiued. The Legislature lias not ventured to say, as it miyht have said, that a sale or mortg'ag'e of chattels shall be invalid afifainst creditors, oi- totally void, uidess the purchaser or mortgagee citluT takes and registers a Bill of Sale, or so takes possession oF the chattels that the vendor or mortgagor can no longer i)l)t:iiii a tit-titi(ins credit hy hulding himself out as their a])parent ()\\ ncr. CHAPTER II !( ABSOLUTE BILLS OF ^ALE. Absolutk Bills of Sale arc governed by the proAisions of the Act of 1878. If an Absolute Bill of Sale is not duly attested and I'egistered, it is liable to be avoided as against the j^jci'sons enumerated in Section 8 ; it is also liable to be postponed to a later Bill of Sale under Section 10 ; and the grantee loses the benefit of Section 20, whereby the goods are protected by a registered Bill of Sale fi'oni the Order and Disposition Clause of the Bankruptcy Act. Absolute Bills of Sale may be conveniently treated in two classes — (1) Documents accompanying Sales; (2) Deeds of Gift, Settlements, Declarations of Trust, &c. It will then be necessary to discuss (3) The I]ff'ect of a Schedule or Inventoiy. I. DOCUMKN'J'S ACCOMPAXYING SaLKS. The Acts do not require that sales of chattels shall be evidenced by writing. A parol contract which actually transfers the propei'ty in chattels is valid, even if the chattels remain in the actual or apparent possession of the vendor, provided the pui-chaser can sufficiently prove the transaction on which his title depends. A sale by the Sheriff under an execution stands for this purpose on the same footing as a sale by the owner himself, the continued possession in question being that of the execution debtor (a). It is here assumed that the sale is bond fide ; colourable moi'tgages and the like fictitious transactions are dealt with in the next Chapter. The question whether the title of the purchaser of goods depends on a Bill of Sale or on a distinct transaction is one of fact. Upon a conti-act for the sale at an ascertained price of specific ascertained chattels, which are ready for immediate delivery, the propei-ty presumptively passes whenever the conti^act is concludcui by iiiiitiial assent (//). I )i'Iivory of possession is immaterial ; ihougli it. (a) As to the Sheriff's power to sell .see Note A, pant. (i) See The Sale of Goods Act, 18(W, Seetion 17, W .■<,;/. Nothiii';- in tlmt Act, or in any repeal effected thernhv, is to nffoct tbo pimctincnts i'clutiii[ Siilc {ihiil., Section 01 [■'])• DOCUMENTS ACCOMPANYING SALES. seems that if possession is actually given as part of the transaction the Bills of Sale Act does not apply. It -would seem that the purchaser's title may become dependent on a document in either of two ways : — There may be evidence of a mutual agreement between the parlies to suspend the transfer of the property until the contract has been embodied in the document, which is then an assui-ance and the instrument of transfer; or, apart from a parol contract, which would be sufficient to transfer the property, the parties may, by agreement, commit the terms of the contract to writing, so that on tiie general principles of evidence the purchaser cannot resort to any other mode of proving the transaction on which his title depends (c). In either case the written document comes within the definition of a Hill of .Sale contained in Section 4 of the Act. The criterion for determining whether a document accompanying a sale is a l>ill of Sale within the Act was thus expressed by Cotton, L. J. : ■• A document, to be a Bill of Sale to which the Act applies, must be one on which the title of the transferee of the goods depends, either as the actual transfer of the property or an agree- ment to transfer, or as a muniment or document of title taken at the tiine as a record of the transaction "' {d). Bramwell L. J., in the same case, said : ■' When the receipt is intended to be the instrument of transfer, or a record of the transaction, then it is to be registei-ed and attested as a Bill of Sale under the Act ; but when there is no evidence of any intention of that kind, it shall be unnecessary to register a receipt signed by the seller of the goods." For practical purposes, this criterion may be usefully severed into two principle.s — one affirmative, the other negative — which may be identified as the principle of Ex parte Cooper, and the principle of Marsden v. Meadoics, respectively. But in reality they form coi-relative aspects of. one principle. The rrhic iple of Ex parte Coop er. — Where, independently of the document, there is no sale of tlie goods, where there is one trans- action, constituted ("for instance) by a receipt and inventory thereto attached, and if there had been no document there would have been no transaction, the document is a Bill of Sale within the Act (e). (c) It appears, h()\ve%-er, that this must be done, or at least stipulated for, at the time. " SuDpose that upon the 1st of .Tanuary fjoods are sold and the price is paid, hut that the buyer does not take possession of them, and suj.pose that upon the 1st of .July a Bill of Sale of the same goods is executed between the same i)arties ; the omission to register the Bill of Sale will not atfect the transaction and annul the sale of the goods which has taken iilace six months before" (.lessel, M. R., in M'u plaintiff for assistance, and it was arranged that the plaintiff shouhl pay out the distress, and that certain horses should be transfei-red to liim. The following document was executed : " Memoi-andum of Agreement between W. B., of &c., and Miss M., of &c. — I, W. B., hei-eby agree to take to tlie grey mare and tAvo colts, and nag mare, and the black mare, now belonging to Miss M., for the anumnt oF £80 ; the said W. B. to take possessiou, and the said Miss M. to authorise tlie said W. B. to do the same. I, Miss M., hereby agree to assign the above-mentioned stock to W. B. on the above conditions." Tlie horses remained in the pos.session of the assignor, and were seized in execution. The Court held the document void for non-registra- tion, being a contract in writing by which the property passed, and therefore a transfer or assurance within the Act of 1854. Brett, J., observed : " Although there may have been a verbal contract apart fi-om the document, and although money may have been paid u^nder it, and so a writing would not be essential, yet, if the terms of the contract are at the time, as here, reduced into writing, and signed by the parties, and the writing contains all the terms of the conti-act, and those terms are such as would pass the property in the subject matter of the contract, such a document is a transfer or assurance of personal chattels within the Act" (g). Another document was given under similar circumstances in the following form : " Miss M. licrchy agrees to sell to W. B. five acres of whciit. \u)\\ sttinding on flic Beeches, at the sum of £6 per acre, W. H. to cut ami caii'v the corn at any time he may i^equirc ; and W. B. doth hereby agree to purchase the said five acres of corn as mentioned above on (he above conditions."' This docunu'nt was signed hy both parties, and was held otliei- buys. If they liad agreed to execute some otlier instrument aftei'wanls by which the property should be transferred, tlien the first document wouhl not have been a Bill of Sale. Jiut here there is an agreement to sell and purchase amounting to a transfer in prn'i^eufi, which is a Bill of Sale '" {h). f^ W. sold to 1. the furnitui'e in his dwelling-house for £600, and signed a receii)t for the pnrchase-nioncy at the foot of an inventoi-y of the goods. On the ontside cover of the inventory was written: " Inventory of the furnitui-e, fixtures, and effects in No. 2 ('. Stieet, South Kensington, the ])roperty of B., purchased liy I." The inveutoi-y was headed : — " Inventoi-y of fixtures, furniture, and effects at No. 2 ('. Street, South Kensington, the property of B., taken this 6th day of May, lS7(i."" Then followed an enumeration of the different articles m each room of the house, and at the foot of it was this receipt : — "' Received this 26th day of May, 1876, of and from I., the sum of £600, being the amount of purchase-money in i-espect of the goods, chattels, plate, linen, and effects mentioned in the foregoing inventory. (Signed) B. Witness (signed), W. H. R., Solicitoi-."' The purchase-mone_y was paid. There was evidence that jHisspssion was given to J. l)y B. delivering him a chair in the name of the w liole, and that I. verf)ally agreed to let the goods to B. at a weekly I'cnt. The inventory and receipt w(>re held to be void against | the tiustec in the li(piidati(m of ll. for non-registration as an/ assurance or Bill of Sale (/). " The o-round of the d ecision was tliat tire sale of goods, the drawin g up of the inventory, and the signing of the receip t f orme d but on e tninsaction (/,). ^^ The plaintiff sued the deTendant foi' wi'ongfully taking bricks belonging to him under execution against the pei'son from whom he had purchased them. 'I'o pi-ove his title he produced the following- receipt : '■ Received of Mr. S. the sum of £80, for 60,000 stocks and grizzles now lying on a piece of ground on the W. P. Estate, corner of W. Lane, Park Avenue. :^>Oth December, 1882. .1. A' H. K." This was the cmly record of the transaction, except two cherpies given in pavment. and the bricks remained in the possession of the seller. (Jrove, J., decided that this was a ■'receipt for the purchase money of goods," which rec] aired registration (/). The defendant's furniture, having been ilistrained on for rent, was sold to the claimants, nominally by the landlords broker, but rt'alh bv the defendant. ( )n conii^lction of the sale the broker o-ave ih) BrinifoM r. wiiifj croiis were nnt 1)w.s(iuh1 cliatt'els witliiii tlie Aft (if Is.jk Srr uuw tlio (lefiiiitioii of pLTsoual chattel.* in Section l of the Act of 1S7S. .As to an MurciMncnt to cxccurc .^onie oMior iiistrnnicnt see note I'j to tlio same Section. (/) E.V /iiir/r Cnnprr, rr Biiinii, ]s7n, 10 Cli. D. .'U.-i. li-) Hrett, L. J., in Waodgufr r. (rodfrc;/, 1S"!I, .5 Kx. 1). 21. (/I Siirll r. Hriqiifdii, 1HS8, 1 ('. A; K. i)"i. Tt was, iierhaps, nnnocessary to decide this point, siTice the learned .Iud?e also lield that no l)vicks had l)een appropriated to the contract. 10 ABSOLITK JilLLS OK SALK. the claimants au inventoiy of the g-oods, with a receipt attached thereto in the following form : " Received of the T. Furnishing and Finance Comj^any the sum of £35 for the goods mentioned in a schedule indorsed by me, and now on the premises of Mr. B." Field and Wills. JJ., held that the documents (the inventory and receipt together) formed an assurance and not a receipt, and were void for non-i"egistration against an execution creditor (m). At a sale of farm produce by auction, W. bought a stack of hay for £40. The auctioneer's clerk signed the name of W. as purchaser in the auctioneer's book, which was also signed by the auctioneer, and contained a copy of the conditions of sale, and specified the lot and the price. No part of the purchase money was paid, one of the conditions being that the purchaser was to have six months' credit. The whole of the hay remained on the pi'emises of the vendor and in his apparent possession. ■ Kay, J., held that tlie entry in the auctioneers book, being essential to the validity of the sale under Section 17 of the Statute of Frauds, was an assurance and a Bill of Sale, and void against an execution creditor of the vendoi' for want of registration (w). The goods of H. having been seized undei- a ft. fa.. B. l)()ught the goods fi'om the Sheriff for £122 by private sale nn(,ler an order of Court. The Sheriff gave the following document : — " In the High Court of Justice, Q. B. Division, Prior v. U. Received this 18th day of July, 1891, of B., of No. 1 B. Road, leather merchant, the sum of £122, being for the goods, chattels, and effects, now in and about the premises. No. 471 B. Road, which were seized by the Sheriff' of the County of London under and by virtue of a wi-it of fteri facias issued in the above cause, and hereby sold as far as he lawfullv can or may, without any warranty of title, and with the consent of the above-named defendant, and nnder an order of Master Wilberforce, dated this 18th day of July, 1891." B. allowed the goods to remain in the debtor's possession, and they were claimed by the trustee in the subsequent bankruptcy of H. Vaughan Williams, J., held that though there was a hmia fide sale to ]i., the receipt was intended by the parties to be an embodiment of tlie terms of the bargain, and was therefore an assurance, and void against the trustee for want of registration. This decision was nflinncd bv the Court of Appeal, dn the gi-nund that the document ()«) French i\ Bomheniard, 18«8, GO L. T. IS. A.S to whether there was mi absolute sale or ft mort^jftpe see next Chapter. («) /« re Uuhi-rU, Eiana v. liohi'HK, r^87, 3fl Ch. D. l!)f>. Kay, .T., observed : " I (listiii,u:uisli this from a case in which the sale would be valid anil comiilete without the nieuiDvaiuhun. For instance, if there had been \nivt payment, or acceptance and receipt of jiart of tlie troods, so that no memorandum was necessary, the sale nii^ht not l)e ftffectcd by a su))erHuous memorandum, which was not repristered." Vrtni/om r. Oritlillix (p)). Sand !), aiiti), does not seem to have been referred to. Sec also />(■;• .Tessel, M. U., in Wiiiidi/n//' r. Gnr/frr/i, IS7!), 5 Kx. I). 2t. Section 17 of the Statute of Frauds is repealed by The Sal.' of (loods Act. iNil.'i, S(>ction (iO. yce now Section t (1) of that Act. DOt'UMKXTS ACCOM I'AN VI XG SALES. 11 was not a mere receipt given after the sale was complete. "The intention of the Sheriff, made known to the pui-chaser, was that lie would sell the goods b}- tlie document, and that the terms upon which he sold were contained in the document, and that he would not sell without the documeiit." This intention was confirmed by the insertion in the receipt of the words " and hereby sold," and of the terms as to warranty of title, conseiit of the debtor, and the order of tlie Master (a). Tlie Fiiiiciph' of Mdisden r. Mendoicfi. — \Vlien there is a complete tran sacti oiijjf sale and purchase before the (Tocuraent (e.g., inventory and receipt) Ts~gTve n and iudepencTently of it, so tliat the title jof the transferee of the g'oods does not depend upon it, the docuTTient need noLbejvFfested or registered as a Bill of Sale (p). This principle is illustrated by the following cases : — A tradesman sold his furniture and stock-in-trade in order to defeat an expected execution. The purchaser paid the money aiul took possession, obtaining a lease of the premises from the landlord, so that there was an actual sale and transfer. The only document passing on the occasion was a receipt for the purchase- money. Kindersley, V. C, held that the receipt did not require registration as a Bill of Sale (*/). The owner of a barge sold it to T., to whom he was indebted. • A receipt was given for the balance of the purchase-money as follows: — " Received of T. the sum of £20, being the balance of the purchase- money for the barge ' Robert,' formerly called ' Emma.' He holds the following I.O.U.'s, dated respectively August 7th, £30, and September 23rd, £25 ; making together £75." On an interpleader issue, the juiy found that this was a mere receipt for the purchase-money, and not a record of the transaction in case the matter should afterwards be called in question ; and on this finding the Court held that it did not require to be registered as a Bill of Sale (/■). F. sold his household furniture to the ti'ustees of his wife's settlement. There was no change in the apparent ownership. The money was paid, and a receipt given in the following form : — "Received of 1). and J., the trustees under the deed of settlement for the benefit of my wife, the sum of £93 6s. 6d., for the purchase of my household goods and effects mentioned in the enclosed inventory and valuation, as purchased this day by D. and J., as trustees named in the deed of settlement, and empowered to purchase by such deed." This was held not to be a Bill of Sale; and \Vilde, B.. intimated his (o) E.r parfp Bicrgexx, in re Hood, 1S93, 10 Mor. B. R. 231. ( /)) Marsden v. Meadows, 1881, 7 Q. B. D. 80. [q) Hide r. Mefroj)olita)i Saloon Omnihits Co., 1839, 28 L. .1. (r) 'DiomxoH v. Burreff, ISdii, 1 L. T., N. S.-2(i8. 12 AliSOLUTi; H1I,I>S OF SALE. opinion that a Bill of 8ale under the Act mast be some instrument by which property was iiitended to be passed (.<). A son owed his father money which he was unable to pay. He ag-reed to sell to his father his household furniture in satisfaction of the debt. No money passed, but the following receipt was given : — " Received of Mr. J. B. the sum of £90, being the amount agreed to be paid for the purchase of household furniture and effects on the premises, No. 94 O. Street, W. Road, Surrey, of wliich I have this day taken possession. — CI. E. P). ' The goods remaiiu'd in the son's possession under an alleged hiring agreement. On an interpleader issue between the father and an execution creditor of tlie son, the jurv found that the transaction was ho)n^ fiilr ; and tlic (\)urt held ihat the receipt did not require registration (/). Tenants, being pressed for rent due, sold their furniture to their landlord, it being agreed that the purchase money should go in discharge of the rent. A receipt was given in the form of an invoice : — "Bought of Messrs. D. & J. W. [certain goods at specified ])i'ices].'* Beneath this was the following: — "Memorandum. We acknowledge that we have this day sold and delivered to Mr. M. the abovt' ai'ticles and effects for the prices above-nauied, £168 18s., and that payment therefor has been made to us of that amount in account between us under the agreement arranged to be made with resj^eet to the amount owing by us to him for reni, interest, and expenses." The g-oods wei'e then delivered to th.e landlord, and let bv him to the tenants, who remained in ])Ossession. Cleasby. B., held that the document was ;i mere i-eceipt. and not n ti-ansfer, and, notwithstanding the nienu)randum. did not need ivgistration as a ti'ansfer under the Act of 1854 (ii). A judgment debtor's furnitni-e having been seized under a fl. fa., his father-in-law bought it from the Shei-iffs officer. A receipt in the following form was given : " In the Common Pleas. W. plaintiff, W. defendant.— Received of T. W. W., of etc., the sum of £589 17s.. being the value of the undermentioned goods, chattels, and effects, seized by the Sheriff of Surrey in the above action, at itc, anil sold to the said T. W. W." The receipt contained an inAcntory of the goods. On the same d.iy the ])nrchaser let the furniture to tlie debtor at a. rent iimh')' a wi'iftcn iiu'i'ccnicnt. iind the t'ni'nil lire remained in the (d) Alhopp v. Day, 1861, 31 L. .T., Ex. 105. This decision was doubted in Ex parte Ode!/, 1878, 10 Ch. D. 7'i; mid again in /v.r pnr/r Caopcr, 1S78, 10 Ch. I). :u;i; but is supported by later authorities. (/) Jlj/rn-/i'i/ r. I'rcrnnl, 1871, L. Ii.. (1 ('. 1'. 111-. This ciisc, like the iiroccdinjj, was doubted or (liKapi)roved in K.v parlc Odrll and K.v iturlr Cuaprr, but has been rehabilitated b.v later cleelsions. The cue is now to blame the findiiis of the .iury. See the observations of Bowen, L. J., in Nurfh Cfiifnil Waiiaii Co. r. Minichcu/'-r ^-e. HiiHirai/ Co., 1SH7, .So ("h. D. 191. in) Gra/mm r. WiU-ockmii. lS7(i, U! L. J., K.x. 55. In /•> porle Cooper, 1878, 10 I'h. D. 313, The.siger, ii. .1., referred to this as "a very strong case, but reall.v founded on Ih/rrlfi/ r. Pri'twKl." Hut it may be ui)held on the jjrotind that the transaction was a sale for valuable consideratiiiii, whicti preceded und was independent of the receipt. See the coniineiits of Howen, L. .1., in \or/.'i Crufm/ lla,,,,,, Co. r. .][„ iirhrK/r r .|r. Uiiiltrin/ Co., 1887, 35 Ch. I). 1!)1. i)()L'L:.Mi:x'rs acco.mi'a.wixc sai.ks. debtor's possession until it was again seized in execution. It was lield by the Exchequer Division and the Coui-t of Appeal that the receipt did not require registration, for, upon the sale b}' the Sheriff and the payment of the price, the property in the goods passed, and the transfer was coni])lete before the receipt and the inventory were signed (»•). The foregoing cases were decided under the Act of 18o4 ; and in Ea' pajic Couper the Court of Appeal assumed that these casts were entirely swept away by the Act of 1878, Avliich expressly includes in tlie definition of a Hill (jf Sale (Section -t) "' inventories of goods with receipts thereto attached and receipts for the pui'chase money of goods.'' It was there overlooked that these words are qualified by the words ■' and other assurances of {)ersonal chattels." "' Under the Act of 1878 a I'eceipt is no moi-e a Bill of Sale than it was before, unless it amounts to an assurance of personal chattels '' (x). The Sheriff, having seized the goods of the defendant inidei' a ti. fa., agreed, on 6th January, to sell them to S. for £6"). On the same day S. paid £40 on account, and the Sheriff" thereuptm gave him possession of the goods. Xext day S. sent to the Shei-iff' by post a cheque for £25. On the 8th the Sheriff' enclosed in a letter a schedule or inventor}- of the goods, with a i-eceipt pinned thereto in the folLowiug forna : — " Received of S. the sum of £65 for valuation at Mr. M.'s farm, B., Essex." This was dated 7th January. S. there- after paid the rent of the premises, and allowed the defendant to use the house and furniture without paj'ing rent, but painting pictures for him. The furnitiire was afterwards taken in execution undei* a judgment against the defendant. On an interpleader issue, the Court of Appeal held that the schedule and receipt did not amount to a Bill of Sale within the Act of 1878. the transaction of purchase and sale having been completed before the receipt was given or asked for, and the receipt not having been intended to be the instru- ment of transfer or a record of the transaction (//). This case was approved and followed in Nort/i. Central M'dijoii. Co. r. Mniichester ^x. liaihvay Co. (z). The facts of the case ai'e set out in Chapter III, post. The documents in question were held not to be within the Acts because they were not " assurances of a legal or equitable interest in personal chattels,"' and there was a perfect I transaction of purchase and sale independently of the documents, and' before the fii'st of the documents was in any way asked for («). I (ir) Wuodgate v. Gndfrt-j/, 187!>, i Kx. }). .59; o Ex. D. 24. (x) Bowen, L. .T., in .y< v. Tower Funu'.tcn!>, 18K», 2 Beav. 522. (r) Dyer r. Green, 1817, 1 P^x. 71 ; following Buck i: Sraddj/ll, 1821, 13 Price 155, where a lease was admitted in evidence without two unstamped inventories referred to in it. (n) Deii-ei/ r. Bayntun, 1805, East 257. 24 ABSOLUTE BILLS OF SALE. When tliere is no schedule to interpret the deed, a question of construction may arise with regard to the scope of general operative words. Thus, a Bill of Sale in security, assigning '" all the household goods, furniture, stock-in-trade, and other household effects, and all other goods, chattels, and eifects, in or about " the dwelling house of the grantor, " and all other the personal estate zvhatsoerer " of the grantor, has been held not to pass his term or interest in the dwelling- house (t). But in a deed of assignment to trustees for the benefit of creditors, similar words have been held to include a term of years (?(), and a deed of assignment by Avay of mortgage of leasehold premises with a power of sale («?). In a case which gave rise to a remarkable conflict of opinion in the Exchequer Chamber, the grantor of a Bill of Sale carried on business at 111 F. Street, London, and resided at 10 The Grove, South Lambeth. The Bill of Sale assigned " all and singular the plate, linen, goods, and chattels, which then were in or about the messuage or premises, ]S"o. 10 The Grove, South Lambeth." Then followed a clause : " That all the household furniture, plate, linen, china, glass, pictures, prints, wines, liquors, and all other the goods, chattels, and effects of whatever nature, which the said mortgagor now is, or during the continuance of the security, shall become possessed of, shall be subject to the security hereby made, and it shall be lawful for the said mortgagee to enter into any messuage or pi'emises and to take possession thereof." The deed contained no mention in terms of 111 F. Street; JS'o. 10 The Grove was frequently mentioned. On the question whether the Bill of Sale conferred a right to the stock-in-trade on the business premises, the Exchequer Chamber was equally divided : Kelly, C. B., Bramwell, B., and Keating, J., were of opinion that it operated equally upon the property on both premises ; Willes, J., Channell and Pigott, BB., agreed, with all the Judges of the Queen's Bench, that it operated only upon the property on the pi-emises where the grantor resided (x). Articles enumerated in a schedule will not pass by the deed or instrument, unless the operative words of the deed or instrument are capable of carrying them, and the inclusion of articles not covered by the operative words is merely nugatory. " If something clearly within the terms of the deed had been omitted from the inventory, such omission would not have prevented its passing by the deed. So, on the other hand, we cannot hold the scope of the deed to be enlarged by a mere reference to a detailed catalogue of the things it) HarrhoH v. Blackhurn, 1804, 34 L. J., 0. P. 109. Under the existing Acts, personal chattels exclude chattels real ; and a Bill of Sale in the statutory form purporting to n.s.sigii chattels real is void. («) Jiiiufer V. Cunn, 1838, 3 M. & W. 343. («•) IVeff V. Sfeu-ard, 18I..5, 14 M. k W. 47. \x) Men V. I'urrcn, IHWi, U) L. T. 321); in Q. I!., lM(i(i ; 11 L. T. 591. TITK SCHEDULE OR INVEXTORY. which were intended to be conveyed. Even if an express intention to include articles not coming within the terms of the deed had been shown by a separate writing, that could not have made the deed operate in a way inconsistent with its plain terms, however it might lay ground for rectifying it " (y). Thus, where a mortgage of a foundry, with the engines, fixtures, machinery, tools, and working plant, referred to an inventory where the chattels were " more particulai-ly enumerated and specified," the Court held that stock-in-trade mentioned in the inventory was not included in the assignment, the words in the witnessing part of the deed showing no intention to include, but a plain intention to exclude, stock-in-trade (»). So, a mortgage of leasehold premises, compi-ising the goodwill of a restaurant business, " together with the trade fixtures, fittings, and other things used for carrying on the same," was held not to include loose articles, consisting of cooking utensils and fui-niture used in the restaurant, and the general furni- ture of the house (a). In a case not easy to I'econcile with the language of James, L. J., above cited, a Bill of Sale purported to assign " all the household goods and furniture of every kind and description whatsoever in the house " described, " more particularly mentioned and set forth in an inventoiy oi- schedule of even date, and given up to the grantee on the execution "' thereof. Possession was given to the grantee b}' delivery of a chair in name of the whole property assigned. The inventory did not specify all the goods and furniture in the house, and the deed was consequently held to operate only as an assignment of the goods and furniture specified in the inventory (/>). On the other hand where a Bill of Sale passed all the goods in the grantor's house, " which are more particularly described in the schedule," but the schedule described only a part of the goods in the house, it was held that the words of the deed were not cut down by the enumeration in the inventory, the schedule being merely a false demonstration not intended to restrict the words of the deed (c). A deed assigned a number of looms on certain premises, and "other effects and things thereto belonging more particularly set forth in the schedule." The looms only were mentioned in the schedule ; yet the deed was held to pass articles used therewith which were on the premises, the schedule being only for purposes of identification, and not intended to limit the ojieration of the words used in the body of the deed (d). Where a Bill of Sale assigned all the fui^niture in a house, and (i/) James, Ij. J., in Ex ptirfe Jrirdine, re McMuiius, 1875, L. R., 10 Cli. :il2. {■:) JCx parte Jurdine, re McManim, unprti. !d (Hornidge v. Cooper, 1858, 27 L. J., Ex. 314). A Bill of Sale may be executed by the Under-Sheriff or bv his deputy (CooA-sow V. Fryer, 1838, 1 F. & F. 328). If it is made by an officer of the Sheriff the Court will presume that he was duly authorised to make it (Rohinfum r. Collingicood, 1864, 17 C. B., N. S., 777, where the officer making the Bill of Sale was acting under a verbal appointment by th(> Under-Sheriff). By Section 145 of The Bankru])tcy Act, 1883, it is provided : " Where the Sheriff sells the goods of a tlebtor under an execution for a sum exceeding twenty pounds (including legal incidental expenses), tlie sale shall, unless the Court from which the process issued otherwise orders, be made l)y public auction, and not by Bill of Sale or private contract, and shall be publicly advertised by the Sheriff on and during three days next preceding the day of sale." See also Section 12 of The Bankruptcy Act, 1890. The practice as to obtaining leave to sell otherwise than by public auction is regulated by R. S. C, Order xliii., Rules 8 to 15. When a Slioriff sells goods by private contract with the consent of the debtor, but without the leave of the Court, in contravention of this Section, the sale, though irregular, is, until set aside by the Court, valid as against ii subsequent execution creditor (Crawslunc v. Harrison, 1893 [1894], 1 Q. B. 79). («?) Sutton V. Bath, 1858, 1 F. & F. 152. {J ) Sladden v. Sergeant, 1858, 1 F. & F. 323. BUILDING AGREEMEXTS. 27 Note B. — Bt'ELDiNG Agreements. The question when buildinj? materials cease to be personal chattels and become part of the land depends partly on the degree of their annexation to the land, and parth^ on the object of the annexation. " Thus blocks of stone placed one on the top of another, without any mortar or cement, for the purpose of forming a dry stone wall, would become part of the land, though the same stones, if deposited in a builder's yard, and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels" (per Curiam in Holland V. Hod'jMn, 1872, L. R., 7 C. P. 328). Building materials being personal chattels until so affixed to the land as to become part of it, it is necessary to consider the cases relating to building agreements in their bearing upon the Bills of Sale Acts. In the earliest case on the subject, a building agreement provided for the erection of houses and the granting of leases to the builder as they should be finished, and for advances to be made by the landowner to enable the builder to carry on the work. It was agreed, by Article 7, that "all materials which should have been brought upon the premises for the purpose of erecting the buildings should be considered as immediately attached to and belonging to the jiremises, and that no part thereof should be removed therefrom without the landowner's consent." It was also agreed, by Article 8, that if the builder should fail to proceed with the erection and completion of the houses or any of them within the times specified, the landlord might enter on and take possession of the whole or any part of the land not leased, "Mith all buildings and improvements therecm, and all bricks and other building materials thereon, for his own absolute use and benefit." The Court held that, under Article 7, the landowner had at least such an equitable interest in the materials as to disentitle the Sheriff to seize them under an execution against the builder, and that the landownei-'s rights under that Article were not in any way qualified by the provision contained in Article 8. The Court did not decide whether the landowner's right to the building materials on the land was legal or equitable. But they held that the instrument was neither a mere licence to take possession nor an assurance of personal chattels within the Act of 1854, not being ejusdem generis yvith "assignments, transfers, and declarations of trust " (Brown v. Bafenmn, 1867, L. R., 2 C. P. 292). This decision was followed in Blake v. Izard (1867, 16 W. R. 108), where the building agreement contained a provision that the property in the building materials should pass to the landowner when they were brought upon the premises. Willes, .1., observed that Broun v. Bateman, supra, Avhich was intended to preserve the rights of landlords, and which he considered a most wholesome decision, showed that " stipulations of the nature of building agreements are not within the scope of the Bills of Sale Act." It was next decided that a proviso for forfeiture of materials in the event of bankruptcy is void against the trustee as a fraud on the bankruptcy laws (E.i: parte Jay, re Harrison, 1880, 14 Ch. D. 19; see also Ex parte Barter, re Walker, 1884, 26 Ch. D. 510). But this applies only when the claim of the landowner is based on the bankruptcy alone. Thus it was held that a power to re-enter and seize materials, on the ground of default, might be exercised after the filing of a liquidation petition, the seizure being a protected transaction within Section 74 of The Bankruptcy Act, 1869 (Er parte Dickin, re Waugh, 1876 4 Oh. D. 524). In E.v parte Neivitt, re Garrud (1881, 16 Ch. D. 522), a l)Uilding agreement provided that upon the builder's default the landowner might re-enter, and that on such re-entry all the materials then in and about the jiremises should be forfeited to and become the property of the landowner " as and for Hiiuidated 28 ABSOLUTE BILLS OF SALE. damages." The Court of Appeal held that this was not a Bill of Sale, for it was not an assurance of personal chattels within the Act, and thou,o-h it was a licence to take possession, it was not " as security for a debt." The Court further held that the right of the landowner to seize was not defeated by the commission of an act of bankruptcy by the builder before seizure, for the trustee in bankruptcy took the property subject to the landowner's right under the agreement. The ))receding cases were decided under the Act of 1854. In Reeve-t v. Barlow (1884, 12 Q. B. D. 436), a building contract provided that all bricks and other building materials brought by the builder upon the land should become the property of the landowner. It was contended that this was a Bill of Sale within the new words of the Act of 1878 : viz. — " Any agreement by which a right in equity to any personal chattels or to any charge or security thereon shall be conferred." This raised the question left undecided in Brown v. Bateman, supra : whether the interest of the landowner under the clause was legal or equitable. And the Court of Appeal held that the leijal property passed to the landowner whenever the materials were brought upon the land: — " In our judgment whatever right is conferred by the clause of the building agreement now under discussion is not a right in equity at all, but a right at law. Down to the time when the building materials were brought upon the landlord's premises there was no contract relating to any specific goods at all, nor anj'thing which could be subject to a decree for specific performance. The contract was only to apply to goods when brought upon the premises, and until this happened there was no right or interest in equity to any goods at all. Upon the other hand, the moment the goods were brought upon the premises the property in them passed in law, and nothing was left upon which any equity, as distinct from law, coitld attach. No further performance of the contract was necessary, nor could be enforced. The building agreement accordingly was at no time an equitable assignment of anything, but a mere legal contract that, upon the happening of a particular event, the property in law should pass in certain chattels, which that event itself would identify without the necessity of any further act on the part of anybody, and which could not be identified before" {ibid., per Curiam). The result was, that as the clause did not confer a right in equity, the case was still governed by Broivn v. Bateman, and Blake v. Izard, supra, and the instrument was not a Bill of Sale. At Common Law a contract or covenant cannot transfer the property in after-acquired chattels unless there be some 7wvus actus interveniens on the part of the contractor. The ratio decidendi of Reeves v. Barlow, supra, would therefore appear to be that the act of the contractor in bringing the materials upon the land is a novus actus sufficient to pass the property. But it seems to be essential to this view that the land or premises should belong to the other party, for the mere bringing of chattels upon the premises of the contractor is not enough (see Chapter VI., post). The bringing of materials upon the land would therefore be equivalent in law to delivery of possession to the landowner. Hence, there is a close analogy between the cas(; of building agrecnumts and cases of pledge or lien which depend upon delivery of possessioti (see the judgment of Stirling, ,T., in Morris v. Delobbel Flipo, 1892, 2 Ch. 352 ; see also Chapter IV^., posi). In Climpson v. Coles (1889, 23 Q. B. D. 465) the lessee of a building lease assigned, by way of mortgage, the leasehold ])remises and the houses in course of erection thereon, together with all building materials which might thereafter be brought on the ])remises. It was provided that such building materials, when brought on the premises, should be considered as attached to aud forming part of tlie fee sim]ile in the; premises. Tlicrc; were also covenants that if the mortgiigor madt; default in completing, it should be lawful for the mortgagees to enter and seize tin; niatei-ials iuid com|)lcte the liuildiiigs, and that on default in payment of 1 he a(l\iince it should lie l:i\\ fui for I lie moilgagees to enlcr upon the; BUILDING AGREEMENTS. 29 premises and sell the same and any building materials thereon, together or in parcels. The fact that the niortgagor was the owner of the land, coupled with the agreement that building materials were to be considered as part of the fee simple, led the Court (Denman and Stephen, JJ.) to think that the case fell primarily within the princijile of Broini v. Bateman, supra. But they held that inasmuch as the deed contained a power to sell the materials apart from the premises it was a Bill of Sale, and void for want of registration, within the authority of In re Fflfcs, Batcheldor v. Yates (1888, 38 Ch. D. 112). If the view above taken of Reevea v. Barlow is right, the reasoning of the Court in Cliinpson v. Coles can hardly be sound. The case of In re Yates applies to fixed trade machinery within the Act, and cannot be invoked in this case unless the true effect of the clause in the mortgage is to make the building nmterials conventional fixtures. But it is impossible to suppose that the Bills of Sale Acts can lie evaded by a provision in a mortgage of land that mere chattels shall be regarded as fixtures when they ai'e brought upon the mortgaged premises. In Cliinpson v. Cules the mortgagor was the owner of the land ; and the case might well have been distinguished on this ground from Brown r. Batemun, which was " intended to preserve the rights of landlords." In Church v. Sage (1892, 67 L. T. 800) a builder agreed with a landowner to build a house on certain land, after which he was to be entitled to a lease. He afterwards assigned, by way of mortgage, to a stranger all his interest in the agreement, and also all i)lant and materials then on the land or to be brought on afterwards, as a security for money advanced to enable him to carry on the work. There was no express power of seizui-e or sale in default of repayment. There was an express power to take jjossession of the premises, plant, and materials, in case the builder failed to complete, or became bankrupt, &c. The plant and materials having been seized in execution and claimed by the mortgagee, Wright, J., held that the mortgage was a Bill of Sale, and void for non- registration under Section 8 of the Act of 18S2. The learned Judge thought that the observations of the Court of Appeal in Reeves v. Barlow were intended to apply only to ordinary building agreements, and not to a mortgage by the builder of his interest in the building agreement and in the existing or future building materials. It would seem, however, that such a mortgage, even if registered, would be void for defect of form ; and a Bill of Sale in the statutory form would be void, except as against the grantor, in respect of after-acquired property. The i-ights of a mortgagee as regards materials not yet affixed to the land seem therefore to be of a very precarious nature. CHAPTER III. REAL AND FICTITIOUS TRANSACTIONS. The pureliasei' of chattels may leave them in the possession of the vendor under a hiring' agreement, with or without a condition of repurchase. When this is a genuine and distinct transaction, it is perfectly legal. But when similar machinery is adopted for the real purpose of securing a debt, the Court regards the substance and not the form of the transaction, and treats the document or documents as a Bill of Sale. There is, however, in some cases great difficulty in determining what is the real intention of the parties ; and the object of this Chapter is to collect the cases in which this question has engaged the attention of the Courts (a). Before reviewing the cases it may be well to make some pre- liminaiy observations. When a hiring agreement following a hand fide sale is in reality a separate and distinct contract, it does not require registration. " Of course the hiring and letting agreement cannot in itself be a Bill of Sale, but it may be looked at to see what the nature of the transaction was " as regards the other circumstances of the transaction (6). The sale itself may be b}- par-ol. If the sale is accompanied by any document, such as an inventory and receipt, I'egistration will or will not be necessary under the Act of 1878, according as the document comes within the principle of Ex parte Cooper or the principle of Marsden v. Meadows (ante, pp. 7, 11) (c). This is still the law, as it has been since 1854 : for, if the sale is bond fide and unconditional, the Act of 1882 has no application to the case. When the pai'ties, I'eally intending to secure a loiui or dcl)l, adopt the form of a sale and demise or agreement for i'e])ui'chase as machinery to disguise their real intention, the hiring agi'eement may be the only document connected with the transaction ; or there («) For an iriterestinjj /.ctetic review, in chronological order, of most of the cases here summarised, see the .iudprmont of Cave, J., in Seckrff v. Tower Annf-fif Co., 1891, 1 Q. B. 1. (4) Cotton, L. .]'., in A^orfh Ci'.iifnil Wm/aii Co. v. Manchester ^-r. Jiiiihrfii/ Co., 1887, .•J5 Ch. D. Un. (i:) Tint it would socm that a recital iu the hiring agreement might be tliu only evidence of the sale, and in that case the hiring agreement would need to be registered, not i/mi hiring agreement, but as an Absolute IJill of Sale ((.•/". Phillips c. Gibhom, 18o7, 5 W. R. 527). COLOURABLE MORTGAGES, ETC. 31 may also be a sepai'ate document, such as an inventory and receipt, apparently relating to an out-and-out sale. Now, under the Acts of 1854 and 1878, the document or documents constituted a legal or equitable charge on chattels which remained in the possession of the original owner and ostensible hirer : as such they required registration, and, if unregistered, were deemed to be void against execution creditors or assignees in bankruptcy &c. Under Section 8 of the Act of 1882, the document or documents, if not registered, are void, even against the grantor, " in respect of the personal chattels comprised therein." But some confusion will be avoided if it is remembered that the document or documents in question, even if registered, would still be void in tofo under Section 9, because from the nature of the case there is invariably a departure from- the statutory form. Under the Acts of 1854 and 1878, if a document- purporting to be an Absolute Bill of Sale was registered, the question might arise whether a hiring agreement operated as a defeasance of the Bill of Sale, for, if so, the omission to register it rendered the I'egistration of the Bill of Sale void. But if no document was registered, it was only necessary to inquire whether there was or were a document or documents which came within the definition of a Bill of Sale ; the question whether it was absolute or by way of security — in other words, whether the transaction was real or fictitious — could hardly arise under the Act, though it might be important for some collateral purpose. In either case the question was only open to execution creditors or trustees in bankruptcy, or, perhaps, under Section 10 of the Act of 1878, to a Bill of Sale holder claiming priority by reason of registration. In Phillips V. Gibbcms (ante, p. 8), where a hiring agreement ^\■hieli recited a sale of the chattels was held to be a Bill of Sale on the ground that there was no other evidence of a sale, it was obviously immaterial to inquire whether or not the alleged sale was bond fide ((/). In Thomson v. Barrett (ante, p. 11), M. sold a barge to T., and it was verbally agreed that if M. brought T. the money, the barge should become his property again, and that T. should let the barge to M. at £80 per annum. M. gave a receipt for £20 as the " balance of the purchase money" ; T.'s name was thereupon painted on the barge, and M. remained in possession. At the trial of an interpleader issue receipts for two quarters' rent were produced. The jury found (1) that there was a bond fide sale to T.; and (2) that the receipt was a mere receipt, and not a record of the transaction. The opinion was expressed by Cockburn, C. J., that the property was intended to pass, and that the engagement that if the money was repaid the property should revert, was a separate and independent (d) Pkillipii c. Gibboiif, 1857, 5 W. R. 527. 32 REAL AND FICTITIOUS TKANSACTIONS. engagement. But it is clear that the second finding concluded the case, whether the transaction was in reality a sale or a mortgage (e). In Byerley v. Prevost {ante, p. 12), where a son sold his furniture to his father and remained in possession under an alleged hiring agreement, the fact that the document in question was only a receipt for the price was decisive of the case under the Act; but Montague Smith, J., observed : ■■' It is not a security for any debt ; it is a sale out and out." This seems to be the meaning of the finding of the jury on the question of hoiui fides (f). In another case, a company claimed against a trustee in bankruptcy the property in a steam engine. A memorandum of sale in the following form was produced: "4th Sept., 1871. I, the undersigned, have this day sold to the N^. C Association .... one eight horse power engine, now standing at my brickyard and tileworks at P., in the county of H., for the sum of £300, the receipt of which I hereby acknowledge. The said engine to be removed at convenience of purchasers. W. B." The name plate of the company Avas affixed to the engine. There was no hiring agreement or other document. Bacon, C. J., held that the transaction was not a sale, but a security for £300 and nothing- else. But it seems that the result would have been the same "if the sale had been absolute, and the document had been held to be an assurance (g). There are other reported cases in which the only question discussed was whether an unregistered document was or was not an assurance, and it was not suggested that the sale preceding the hiring agreement was other than bond fide (h). In Ex parte Odell, the earliest leading case on the subject, one Cochrane, on the 18th July, advanced to Walden, who had an execution in his house, the sum of £150, which w^as partly employed in paying out the execution. On the same day two documents were executed : (1) An inventory of Walden's furniture was made, and at the foot of it Walden signed a receipt for the £150, " for the absolute sale " to Cochrane " of the above-mentioned articles ; " (2) By an agreement in writing, Cochrane let the same furnitui-e to Walden for two months for £170, to be paid on 18th September, or such other time as might be agreed on. Power was given to Cochrane to determine the agreement, and take possession and sell the goods, if the £170 should not be duly paid, or if the goods should be taken under execution or distress. It was further agreed that if, on sale, he should realise more than was due to him under the agreement, he was to pay the sui'jdIus to Walden ; if he should realise {(■) Thomxon v. Barreff, ISfiO, 1 L. T., N. S. 268. {/) Bi/erlri/ v. Preiwut, 1871, L. R., C. P. Ui. {(/) Ex pitrfe Netrpnrt Credit Axxocdafion, re ISnmpfield, 1.S72, 20 W. 7{. !)2."i, (h) Sec, f.f/., Grahnm r. Wil<-ockwti,\H7(\, W L. .1.,' K.\. 5.",; K.r ,M,-lf r™/» ,-,/•,• i>(i 10 Ch. D. :ii:{;' W«ndn (/*). Note ox Hipjxc; Agreements. A hiring agreement, with or without a term for purchase, may be an assurance of chattels, or a licence to take possession of chattels as security for a debt, so as to come within the definition of a Bill of Sale. But this is the case only when the hiring agreement is used as a device to create a security upon chattels for the payment of money. The following notes relate to bona fide hiring agreements : — An agreement for the hiring of furniture or other chattels may be a simple demise, or it may contain a term that on payment of certain instalments the chattels are to become the property of the hirer. In either case the hirer has a special property in the chattels as a bailee for a term ; but in the latter case the general property does not pass to the hirer until the instalments are completely paid. Until then he has only " a contingent interest liable to be defeated by non- compliance with the terms and conditions of the lease" {per Lord Macnaghten, in Manche.'^ter ^r. Baihcay Co. v. North Central Wagon Co., 1888, 13 App. Ca. 554). The fact that the letter reserves power to take possession in case of non- compliance with the terms of the agreement, or on the bankruptcy of the hirer, does not make the agreement a licence to take possession of chattels as security for a debt {Ec parte Craiccour, re Robertson, 1878, 9 Ch. D. -119; followed in Ex parte Whittaker, re Gelder, 1880, W. N. 171; United Fortii Pound Loan Cluh r. Bexton, 1890 [1891], 1 Q. B. 28 7i). Hence, a bona fide hiring agreement does not require registration as a Bill of Sale, whether it includes a term for purchase or not ; and it makes no difference that promissory notes for the total amount of the instalments are deposited by the hirer as collateral security {Ex parte C raivconr, tiiipra). Where the letter registered as a Bill of Sale an inventory and receipt, whereby the hirer acknowledged having received certain furniture on hire, it was held that the hirer could not i-ecover damages without proof of actual malice and want of i-easonable and probable cause {Hursley v. Sttjle, 1893, 69 L. T. 222). In a hiring agreement "month" means a lunar month, unless the context shows that the parties intend a calendar month. A stipulation for weekly payments rather implies that a lunar month is intended {Hutton r. Broirn, 1881, 45 L. T. 343). A power of distress has been ui)held in case of rent being in arrear for seven days {Leman v. Yorkshire Wayon Co., 1881, 50 L. J., Ch. 293) ; but this was a mere hiring agreement, and it was admitted that this clause was of a usual (6; Victoria Dairy Co. of WortUng c. We»t, 1895, U T. L. R. 233. 42 REAL AND FICTITIOUS TRANSACTIONS. character in ao'reements for the hiring of railway Avagous. In another case premises were demised, with fixttires and machinery, for a term of years, and it was provided that at the end of the term, if the instalments of rent had been paid, the fixtures and machinery should belong absolutely to the hirer. The Court held that the hirer had no property in the fixtures, and that they did not pass during the term to his trustee in bankruptcy; but that the trustee was entitled to the proceeds of a distress levied by the letters, as the so-called rent was a fiction (Ex parte Serqeant, re Gelder, 1881, W. N. 37 : reversing Bacon, C. J., 1880, W. N. 171). There is no Equity to relieve against forfeiture of instalments already paid. A piano was let on the three years' hire system under an agreement providing that " in case of default in the punctual payment of any instalment, the instal- ments previously paid should be forfeited to the letters, who should thereupon be entitled to resume possession of the instrument." Default was made in payment of the two last instalments ; afterwards the hirer offered the amount due, but the letters refused to accept the same, and brought an action to recover possession. Lopes, J., ruled that time was of the essence of the contract, and that the plaintiffs were entitled to the piano (Cramer v. Giles, 1883, 1 C & E. 151). But Bacon, C. J., seems to have expressed the opinion that a stipulation for forfeiture is in the nature of a penal tv against which Equity would relieve (Ex parte Hatterdey, re Blanshard, 1878, 8 Ch. D. 601). Where the letters of railway wagons Ijound themselves to kee^j the wagons in repair, it was held that their agreement was sufficiently performed if the wagons were repaired by a sub-contractor, or by another company to whoTii they had transferred the benefit of the contract (British Wagon Co. v. Lea, 1880, 5 Q. B. D. 149) : for personal performance is not of the essence of a contract to do work unless the person employed has been selected for his individual skill, competency, or other personal qualification (as in Robson v. Drummoncl, 1831, 2 B. & Ad. 303). The hirer of chattels under a written agreement may maintain trover against a stranger without producing the written agreement (Burton v. Huglies, 1824, 2 Bing. 173). Goods in the possession of a hirer under a hire-purchase agreement are liable to distress for rent ; but a merely conventional right to distrain, not for rent alone, but for an existing debt, does not extend to the goods of strangers (Wright, J., in Green V. i¥«ivs/i,, 1892. 2 Q. B. 330). If the Sheriff takes the goods in execution during the term under a fi.fo. against the hirer, the letter cannot maintain trespass (Ward r. Macanley, 1791, 4 T. R. 489) or trover (Gordo)t v. Harper, 1796, 7 T. R. 9), because he has no immediate right to possession. Nor can he maintain an action on the case unless the Sheriff has actually sold* the entire property in the goods after notice that the hirer has only a limited interest therein (Dean r. Whittaher, 1824, 1 C. & P. 347 ; DiiffM r. Spottisicoode, 1828, 3 C. & P. 435). It has been said that the Sheriff may sell the hirer's limited interest : e.g., if the goods are let from year to year, he may sell the use of them for a year (Dean v. Whittal-er, stipra). But this was doubted by Pollock, C. B., and left untouched by the judgment of the Court of Exchequer in Lanca.i^hire Wagon Co. v. FitzJiiigh (1861, 30 L. J., Ex. 231). In that case it was decided, upon the pleadings, that though the sale would not of itself be a conversion, yet an absolute sale, followed by delivery and by causing the purchasers to use; and damage the chattels, would be so. Where the letter had Ix'come l)ankru])t. and the hirer, in ignorance of the bankru])tcy, continued to i)ay him money for the hire of the goods, it was held that an execution creditor of the liirer was entitled to the goods as against the letter, who had no legal or e(|uilnbh> interest in them, the trustee in bankruptcy not having intervened (l;irhnrd:< r. .Irnkins. 18K7, IS (,). U. D. 451). niRIXG AGREEMENTS. 43 Chattels comprised in a hiring agreement may be in the order and disposi- tion of the hirer if used in his trade or business. The same principle formerly applied to ordinary houseliold furniture — at all events where the hirer had at one time been the owner of it, and there had been no real change of possession {Ex parte Lovering, re Jones, 1874, L. R., 9 Ch. 621 ; Ex parte Brooks, re Fowler, 1883, 23 Ch. D. 261) ; though the contrary was held where the bankrupt hirer had never been the owner of the furniture {Ex parte Emerson, re Haicl-ins, 1871, 41 L. J., Bank. 20). But the order and disposition clause may be excluded by evidence of a custom of trade, generally known amongst persons dealing with the particular class of traders in question, for the letting on hire of a particular kind of chattels. As to such evidence see per Brett, M. R., in Ex parte Reynolds, re Bnrnett (1885, 15 Q. B. D. 169); see also Ex parte Crossley, re Peel (1894, 1 Ir. R. 235). It may also be excluded by the owner placing on the chattels a name-plate or some legible inscription {Ex parte Stooke, re Bampfiehl, 1872, 20 W. R. 925 ; in re Hill, 1875, 1 Cli. D. 503 n). The Courts now take judicial notice of the custom of hiring hotel furniture {Crawcour v. Salter, 1881, 18 Ch. D. 30 ; Ex parte Twrquand, re Parker, 1885, 14 Q. B. D. 636), though formerly evidence of the custom was required {Ex parte Pou-ell, re Mattheics, 1875, 1 Ch. D. 501). A boarding-house keejjer is within the same custom {Ex parte Whiteley, re Chapman, 1894, 1 Manson 415). The custom of letting pianos on the hire- purchase system has also been judicially recognised {Ex parte Hatterslev, re Blanshard,' 1H78, 8 Ch. D. 601). The letter of chattels under a hire-purchase agreement may, during the currency of the agreement, absolutely transfer his defeasible property in the goods, of which an instance occurs in the independent title acquired from the Sheffield Co. in Manchester ^'c. Railivai/ Co. r. North Central Wagon Co., 1888, 13 App. Ca. 554 {ante, p. 36). He may transfer the chattels by way of pledge or mortgage to secure a debt (see Newlove v. Shrewshury, 1888, 21 Q. B. D. 41, where the lender fixed his name-plate on the chattel — a lace machine). Or, without assigni7ig the property, he may absolutely assign the debt accruing due under the hiring agreement, whicli, being a chose in action, is now assignable at Law as well as in Equity {British Wagon Co. v. Lea, 1880, 5 Q. B. D. 149). Where the letters assigned, by way of security for a debt, not the property in the chattels, but '■ all their right and interest in the hiring agreenient," with authority, if default should be made in repayment, to exercise all the powers contained in the hiring agreement until the balance of the debt should be repaid, it was held that this was not a Bill of Sale or a licence to take possession of chattels as security for a debt, but an assignment of the benefit of a contract, and that the assignment of instalments accruing due under the hiring agreement after the commencement of the bankruptcy of the assignor was valid as against the trustee in bankruptcy {Ex parte Raidings. re Dari><, 1888, 22 Q. B. D. 193; but see Jarris v. Jarvis, 1893, 63 L. J., Ch. 10). Wliere, by one and the same deed, the letter of a piano under a hire-purchase agreement assigned, by way of security for money, the piano and also the benefit of the hire-purchase agreement, it was held by the Court of Appeal that the assignment of the agreement was severable from that of the piano, and that consequently the deed was not void in toto under the Bills of Sale Acts for non-registration, or because it was not in the statutory form {Ex parte Mason, re Isaacson, 1894 [1895], 1 Q. B. 333). A hiring agreement which provides that, on the payment of a certain number of instalments, the chattel is to become the pi'operty of the hirer may be an "agreement to buy" within Section 9 of The Factors Act, 1889; and the hirer liaving obtained possession under the agreement may make a valid sale, jiledge, or other disposition thereof to any person receiving tlie same in good faith and without notice of the right of the original seller {Lee r. Butler, 1893, 2 Q. B. 318). 44 REAL AND FICTITIOUS TRANSACTIONS. It ■n'as lield by the Court of Appeal that sueh a hiring agreement is none the less an agreement to bu_y because it contains a stipulation that the hirer maj- terminate the hiring by delivering up the chattel to the owner ; that this stipula- tion does not make the transaction on the part of the hirer a mere hiring with an option to purchase (HeJby v. Mattheivs, 1894, 2 Q. B. 262). But the House of Lords reversed this decision on the ground that the hirer has not " agreed to buy " unless he is under a legal obligation to buy ; and the effect of the stipula- tion in question is that there is no agreement to sell and no agreement to buy, but only an irrevocable offer to sell on one side and an option to buy on the other. Consequently, the Factors Act does not enable the hirer to give a good title to a purchaser" or jjledgee {Helhy v. Mattheirs, 1895, 11 T. L. R. 446). Probably few hire-purchase agreements will, in future, omit this or a similar stipitlation. The question of the validity of a disposition by the hirer can now only arise if the agreement falls within the authority of Lee v. Bidler, in contradistinction to Helhy x\ Matfhetcs, as decided by the House of Lords. It has been decided by Bruce, J., that the delivery of the goods to an auctioneer, to be sold by auction, conies within the words " .agreement for sale, pledge, or other disposition"; and that an aitctioneer so receiving the goods and selling them in good faith, without notice of the owner's rights, is not liable for conversion (Shensfone r. Hilton, 1894, 2 Q. B. 452). It may, perhaps, be open to question whether the Legislature meant to do more than protect the title of a purchaser or pledgee, while leaving the hirer himself, or any person acting merely as his agent, liable in damages for converting the pi'operty. An auctioneer, however, to whom goods are delivered for purposes of sale, has a special property in them (Williainn v. Millington, 1788, 1 H. Bl. 81). On the one hand, it seems difficult to contend that this special proj^erty is not protected by the Section ; and, on the other hand, if the special property is protected, it would seem to be anomalous to hold the auctioneer liable generally for conversion. Apart from the Section, the owner of the chattel could maintain trover either against an auctioneer (Loesclniian r. Machin, 1818, 2 Stark. 311; Cochrane r. Ri/nrill, 18/9, 40 L. T. 744), or against a i)urchaser or pledgee (Cooper v. Willomatt, 1845, 14 L. J., C. P. 219 ; Singer Manufacturing Co. r. Clnrl\ 1879, 5 Ex. D. 37). The hirer himself is still liable in conversion if he sells the chattel before the property has passed to him. But if he is prosecuted for larceny as a bailee, his conviction does not revest the property in the letter, or defeat the title of the purchaser (Payne v. Wihon, 1895, 1 Q. B. 653). Both in Shenstone v. Hilton and in Payne v. WiUon, however, the hiring agreements were really within the authority of Helhy r. Mattlieivn, so that the Factors Act had no application. After the decision of the House of Lords in that case the letter of the goods in Shenstone -!•. Hilton applied to the Court of Appeal for an ext(>nsion of time for appealing against the judgment of Bruce, J., but the ai)]ilication was refused. In Payne r. Wilsuti the a])peal of the letter of the goods against the judgment of the Divisional Court was alloweil with costs, the purchaser being unable to contend that tlie case was not governed by the decision of the House of Lords. The question does not seem to have been raised as to the effect of a Bill of Sale granted by the hirer during the currency of the hire-purchase agreement. It would seem that the granting of a Bill of Sale would nt)t be a " delivery or transfer of the goods under any sale, pledge, or other disposition thereof" within Section 9 of the Factors Act, and therefore would not affect the property of the letter. By virtue of Section 5 of the Act of 1882, the Bill of Sale would be void, except as against the grantor, in so far as concerned the rights of the owner, and the grantee would acciuiic only tin' di'tVasible interest of the grantor under the hiring agreement. CHAPTEB IV. SECURITIES DEPENDENT ON POSSESSION. The Bills of Sale Acts apply to every Bill of Sale " whereby the holder or grantee has ])o\ver to seize or take possession of any personal chattels comprised in or made subject to such Bill of Sale" (a). But this implies that the document is consistent with the possession remaining in the grantor. Accordingly, for the pur- poses of the Acts, a broad line must be di-awn between two kinds of transactions by Avhich secui-ity for a debt is given upon personal chattels. On the one hand, if a transaction is consistent with the possession remaining in the grantor, a document in which it is embodied is within the Acts, whether it be a mortgage in the strict Common Law sense, or an equitable charge, or a mere licence to take possession. On the other hand, if the grantor obtains possession as part of the transaction, either at the time when the agreement is made or befoi^e the security is intended to oi^erate, the document is outside the Acts altogether, whether the transaction be one of pledge, or of lien, or of mortgage coupled with immediate transfer of possession. The object of this Chapter is to collect the eases in which the question has been discussed whether a transaction falls into the former or the latter class. For the purpose of ascertaining the legal rights, remedies, and liabilities of the parties, it may be important to determine whether the transaction be one of mortgage, pledge, or lien ; but in merely considering whether the case conies within the Bills of Sale Acts or not, it is seldom necessaiy to inquire into the exact natui'e of the transaction (h). (a) Act of 1878, Section 3, po^f. (6) The distinction between mortgajje and pledge is well stated in the following passage :— " A mortgage of chattels is essentially different from a pawn or pledge. A mortgage conveys the whole legal interest in the chattels ; a pawn conveys only a special property, leaving the general property in the pawnor; a pawn is subject in law to a right of redemption, and no higher or different right of redemjjtion exists in Equity than at law : a mortgage is subject, not only to the legal condition for redemption, but to the superadded equity. A jiawn involves transfer of the possession from the pawnor to the pawnee. A mortgage may be made without any transfer of possession. In my opinion, the two transactions of pawn and mortgage are in their nature distinct, and I think that, except by new agreement between the j]artics, what was originallv a ]3avm never becomes a mortgage, and what was originally a mortgage never becomes a pawn" (per Fry, L. J., in Ex parte Official Seceicer, re Morritf, 1886, IS Q. B. D. 222). As to the same distinction see also Franklin r. Seafe, 1844, Vi il. & W. -181 ; per Jessel, M. R., in Carter v. Wake, 1877, 1 C\\. D. 605 : /)"*- Bowen, L. J., in Ex parte Htthhard, re llardtrirk, 1886, 46 securitip:s dependent on possession. The general principle, as stated by Cave, J., is that the Bills of Sale Acts do not include " any case whej-e the object and effect of the transaction are immediately to transfer the possession from the grantor to the grantee " (c). If the transaction of pledge is taken as the type of securities where possession is given as part of the transaction, the same principle may be exjiressed as follows : — Where a transaction is one of pledge arising from the delivery by one party to the other of the possession of goods as security for an advance, the Bills of Sale Acts do not apply ; and it makes no difference that the terms of the transaction are reduced to writing, so that the terms on which the advance Avas made or is to be repaid, or the conditions under which the goods may be sold, can only be proved by means of the document. A document accompanying a transaction of pledge is not a Bill of Sale within the Acts (tZ). This proposition is illustrated by the following cases : — A trader whose banking account was overdrawn, and who required a further advance, deposited with his bank the invoice of goods bought by him on credit and consigned to him by rail, along with a delivery order directed to the railway company requiring the company' to hold the goods to the oi-der of the bank. On the arrival of the goods, the company sent an advice note to the bank, stating that they held the goods to the order of the bank. The advance was then made. A minute of the ti'ansaction, stating the rate of interest on the advance and the terms on which the goods were to be redeemed, was entered in the bank ledger, and was signed by the trader, and stamped. The trader having become bankrupt, the trustee claimed the goods on the ground that the delivery order and the minute in the bank ledger constituted a Bill of Sale, which was unregistered and also void for defect of form. Cave, J., held that the transaction was one of pledge, and the title of the bank was good (e). A pawnbroker made an advance to a limited company on the security of certain property belonging to them, and then ware- housed at Brook's Wharf. The wharfinger's warrant was endorsed to the pawnbrokei", and handed to liim : and a nieniorandum of the terms of the loan, signed by the secretary on behalf of the company, 17 Q. B. D. 690). A lien gives no right of property to the person entitled to it ; it is merely a personal right to retain the goods, and continues only so long as the holder keeps possession, either Ijy himself or by his servant (Ler/c/ v. Enmn, 1810, 6 M. & W. .36 ; '• Addison on Contracts," p. 7'Si). In some of the older cases the terms are very loosely used. Thus in Belcher i:. Oldjielil, 1839, 6 Bing. N. C. 102, the ca])tain of a ship wrote to the owner, " I hereby authorise you to keep possession of my cabin furniture &c." The owner, Ity his agent; was then in possession ; and afterwards he was hold entitled to retain jiossession as agiiinst the assignees in the captain's bankruptcy. Tindal, C. J., s])oke of the transaction as an equitable mortya(]e, and again as an equUalle jjledge. Bosanquet and Coltman, JJ., called it a lien, and Maule, J., a pletli/e. (<■') Jix parte Clone, re Hall, 1884, 14 Q. B. D. 386. (rf) Ex parte Hubbard, re Hardwick, 1886, 17 Q. I!. D. 6110; iiiiiu'oved in Chnrle^irorfli i\ 3Iilh, 1892, A])!). Ca. 231. (e) Ex parte Clone, rr Uatl, 1881, 11 (J. li. 0. ;jS(;. PLEDGES, LIENS, ETC. 47 was handed to him at the same time. Pearson, J., hekl that the security was complete by this transfer of possession, and tliat the documents did not require registi-ation (/). A tradesman named Townsend was in debt, and an execution had been levied on his furniture. He applied to Parsons to make him an advance of money, which Parsons agreed to do upon security being given to him on Townsend's furniture and other effects. The agreement was embodied in a letter from Townsend to Parsons, dated 7th August : " Sir, — I hereby authorise and empower you to take immediate possession of all my goods, chattels, plate, and other effects, at 26 E. Place, and to sell the same, either by public auction or private contract, as soon as convenient may be, and out of the proceeds thereof I authorise you to deduct any moneys due from me to you, and any accounts due from me to the tradesmen in and about Kemp Town, and after deducting all proper charges for the sale of my effects and moneys advanced by you, to pay over to me the balance thereof." On the execution of this document Parsons made certain advances to Townsend. Parsons intended to take possession of the goods at once, and had instructed an auctioneer to take steps for the purpose. But at Townsend's request, and to suit Townsend's convenience, he delayed taking possession until 6th September, when he took possession and sold some of the goods. In November a bankruptcy notice was served on Townsend, and he was ultimately adjudicated bankrupt in the March following. The trustee applied for an order declaring the letter void as a Bill of Sale. The Court of Appeal held that the letter was a licence to take immediate possession of the goods as security for a debt, and therefore a Bill of Sale within the Acts of 1878 and 1882, and that it was void under Section 9 of the Act of 1882, as substantially deviating from the prescribed form, although it was, from its nature, impossible that it should be made in the statutory form (g). A person deposited some tricycles with the lender as security for a loan, at the same time signing a document which contained the terms of the agreement as to interest, insurance, and power of sale in default of repayment. The Court of Appeal held that as possession was delivered before the execution of the document, the transaction was not within the Acts (h). "It was held that because the transaction was one of pledge, whei^e the possession was given and taken independently of that document, although you might be obliged to have recourse to that document if there was a controversy about the terms of the advance, nevertheless you did not need to have recoui'se to the document for the purpose of establishing title" (i). (/) In re Cunningham 4- Co. ; Atienhorouqh' s Case, 1885, 28 Ch. D. 683. (g) Ex parte Fanionf, re Toa-nsend, 1886, 16 Q. B. D. 532. (A) Ex parte Hubbard, re Hardu-iek, 1886, 17 Q. B. D. 690. (1) Per Lord Herschell, m. Charlesworth v. Milli<, 1S02, Ap)}. (a. 231. 48 SECURITIES DEPENDENT ON POSSESSION. A lace machine had been manufactured for one Atkinson, and delivered to him under an agreement that the property should not pass until all the instalments of the purchase piice were paid. The manufacturers orally ag-reed with the defendant Shrewsbury to transfer to him their property in the machine and their interest in the agreement for the sale of it, in consideration of his e'uaranteeino- their bank account. It was agreed that if within four months the manufactiii-ers were in credit with their bankers, the machine and the benefit of the agreement were to i-evert to them ; but, if not, the defendant was to be at liberty to sell the machine and discharge his guarantee with the proceeds. A receipt for £580 was indorsed upon the agreement " for and in satisfaction of all our interest and property in the lace machine within described and the within written agreement." The defendant forthwith caused his name, as owner, to be painted on the machine. The machine having been seized under a distress while in Atkinson's possession, the defendant paid out the distress, bought Atkinson's interest, and sold the machine. The proceeds were insufficient to meet his liability on the guarantee. The manufacturers having executed a deed of arrangement, the assignees claimed the machine or its value, contending that the receipt was an essential part of the defendant's title, that it was a Bill of Sale, and void for non-registration, and therefore that the defendant had no title to the possession of the machine. But the Court of Appeal, affirming Day, J., held that there was an oral transaction entirely independent of the receipt, which entitled the defendant, having the possession of the machine, to retain it as against the assignees (k). A. agreed to lend B. £2,500 on the security of a collection of prints and engravings. On the 19th November, 1883, A. advanced £1,250 on account of the loan, and it Avas ari-anged that the collection should be stored in a certain room rented by B. On the 21st November B. wrote to A: " The collection was moved in to-day; L. has the key, which 1 place entii-ely at your disposal." On the 24tli December the balance of the loan was advanced ; and on the 11th January, 1884, B. wrote to A., "You having advanced to me the sum of £2,500, I hereby authorise you to retain possession of my collection of engraved prints now deposited by me in a certain room . . . the key of which room is at present in your possession or pow(M' ; and I hei-eby acknowledge that you are to retain possession of such prints &c. until the whole of the said sum of (k) JVewlovfi i:. Shreicuhiiri/, 1888, 21 Q. B. D. 11. The decision turned on the fact that the receipt did not operate as a reduction into vvritinj^ of the afjreement between the parties, the referee havintr reported tliat tlie reeeii)t did not truly r('|)resent the transactioTi, " tlie transfer not bcinff absolute, but by way of security oidy." 'I'he nature of the transaction, whether Ijledffe or mortpipe, was not discussed; thoutjli it would ajjpear that actual delivery of ])ossession WHS an integral part of the traTisact ion. Hut if this had Ijeen found as a fact, it would have lieen iiiiniatei'ial wliellier the airrccnieiit was reduced into writing' or not. PLEDGES, LIENS, ETC. 49 £2,500, with interest at five per cent., has been repaid to you." B. died insolvent, and his administratrix contended that the letter of 11th January was a Bill of .Sale. Kelcewich, J., decided that the transaction was one of pledge, and that it was not essential that deliver}' of possession should be actually contemporaneous with the adA'ance (/). James B. and his brother F. verbally agreed on 10th June, 1886, that F. should make a further advance of £50, and that J. B. should deposit the whole of his plate as security. Later in the day J. B. wrote : " You having this day advanced me the sum of £50, I agree to repay you the amount with 5 per cent, interest, and I charge the plate 1 have deposited with you to-day with the payment of the sum of £50 and intei'est, and also the sum of £200 already owing by me to you." Subsequently F. handed over a cheque for £50, and received the keys of the plate chest. He also selected certain articles — including the '" Owl," an ornamental piece of plate — and took them away. In November F. returned the keys to his brother's housekeeper, at her i-equest, " on the distinct under- standing that she should hold the plate for him." In March, 1887, J. B. wrote for the " Owl," and F. sent it to him. In April, J. B. gave it to his housekeepei- (the defendant), with a note in writing to the effect that she was to have the absolute property in it. After the death of J. B., F. brought an action to recover tbe " Owd." The Divisional Court held that the plaintiff's title did not depend on the letter of 10th June, 1886, but. on the ^prior verbal agreement, coupled with delivery of the plate by handing over the keys. The intention of the parties, as indicated in the verbal agreement, was not affected b}* the written document, which, therefore, was not a Bill of Sale (m). H. was the owner of certain furniture warehoused with the defendants, who had a lien on it for £100 for advances and costs of removal, &c. The plaintiff' arranged with H. to pay this debt, and it Avas agreed that he slunild have the furniture as security, and should warehouse it in his own name. A memorandum of agreement Avas draAvn u|) I'ecording the transaction and regulating the rights of the plaintiff and H. as to the repayment of the advance and sale of the goods. The plaintiff paid the sum due to the defendants. Finding, however, that the cost of warehousing Avould be considerable, he took a house at Putney, and furnished it with the furniture. Rent and taxes were paid by him. H. and his wife lived with him as (0 Milfov i: Tucker, 1888, 39 Ch. D. 669. (i») Boirkei- r. wmiaimon, 1889, 5 T. L. R. 382. The learnecl Judges also held that the letter ought not to have been admitted in evidence without a stamp ; and that the County Court .hidge should have rejected it, whether counsel objected to its admission or not. " A written memorandum of deposit or pledge does not require a mortgage stamp, but it will in general reciuire an agreement stami)." — "Addison on Contracts," p. 733; Harris r. Birch, 1812, 9 M. Si. W. 591. 50 SECURITIES DEPENDENT ON POSSESSION. lodgers, providing board for him, and paying the servants' wages. The defendants subsequently obtained a judgment against H., and attempted to seize the furniture in execution. On an intei'pleader issue, Mathew, J., came to the conclusion that the plaintiff had acted with perfect bona fides, and on this assumption he was satisfied that the case came within Ex parte Hubbard, ante (n). The plaintiff applied verbally to the defendants for a loan on the security of certain furniture of his, then stored at a warehouse in his name. ' On the advance being made, the plaintiff gave a promissory note for the amount, with a signed memorandum promising to pay interest on the note" if not paid by the stipulated time. On the same day the plaintiff handed to the warehouseman a delivery order, requesting him to deliver to the defendants or their order " all property warehoused with you in my name, on payment of your charo-es?' The plaintiff having failed to pay, the defendants took possession under the delivery order. The plaintiff then moved for an injunction to restrain the defendants from selling the furniture, contending that the delivery order was a licence to take immediate possession", and therefore a Bill of Sale. But Kekewich, J., held that the ti\ansaction was one of pledge, the effect of the delivery order being to change the posi^ession from the plaintiff to the defendants (o). The owner of household furniture which had been seized under a fi. fa. asked C, an auctioneer, to pay out the Sheriff, and he agreed to' do so. It was verbally arranged that the man in possession should remain in possession for C, who was to sell the goods by auction, repay himself the advance, and hand over any balance to the debtor. C. paid out the Sheriff'. The debtor then signed and gave him a letter in the following terms : " Sir, — In consideration of your paying to Mr. W., the Sheritt"s officer, the amount of T's wi-it and expenses, viz., £62 I5s. Id., I hereby authorise and request you to hold possession of all my furniture and effects now on the pi-emises, No. 2 P. Street, and to sell the whole by auction as soon as convenient, and after deducting the above amount and _your charges, pay over the balance (if any) to me." The man in possession remained in possession for C. Next day the debtor gave a Bill of Sale of the same goods to M., who registered it. The debtor absconded, and C. removed the goods to his auction room, and sold them for £55. M. sued C. for damages for the detention and conversion of his goods. The House of Lords, reversing the decision of the Court of Appeal, held that the letter was not a Bill of Sale, since it did not confer any title to the goods, and was not intended to come into operation until possession had been actually transferred from the Sheriff' to the auctioneer ; whether the transaction was regarded as a In) WilkUunn r. nirrnvl, ISOl, 7 T. L. H. I'fifi. (o) Ori;/!/ r. X„f!n,„m. PLEDGES, LIENS, ETC. 51 pledge witli authority to sell, or a mandate to sell coupled with a lien for the advance, it was quite outside the Acts (p). By an agreement in writing made between the defendant, a f(n"eign manufacturer, and the plaintiff, his agent in England, it was provided that advances made by the plaintiff for expenses should be " covei-ed and secured by the stock of goods which shall be in his hands," which the defendant bound himself should not fall below a certain value. The defendant having terminated the agency, the plaintiff brought an action for wrongful dismissal, and applied for an injunction to restrain the defendant from intei'fering with his rights under the agreement. The defendant objected that the agreement conferred a right in Equity to, or created a security upon, the goods, and was void for want of registration as a Bill of Sale ; and he claimed the right to remove the goods remaining in the plaintiff's hands, without satisfying the plaintiff's claim for expenses incurred as agent. Stirling, J., held that the document conferred no legal or equitable right to any goods unless and until they i-eached the hands of the plaintiff, and that when they came into his hands, the agreement coupled with possession created a legal and not an equitable right, and, therefore, that the agreement was not a Bill of Sale within the Acts (q). Bv an agreement between the plaintiff and the defendants the plaintiff' agi-eed to consign by the defendants' route all -traffic intended foi- places on the defendants' line. The defendants agreed to grant to the plaintiff', for the ])urpose of storing stone, a licence to use certain ground, of which they wei-e owners and occupiers, at a rent of £20 per annum ; but it was provided that the granting of the licence was not to be deemed a tenancy. It was further agreed that " all goods stoi-ed on the said premises shall be deemed to be in the possession of the Company, and to be held subject to a lien for the sum hereby agreed to be paid for the general balance of carriage or otlier charges which may from time to time become due from the plaintiff to the Company, and shall also be subject to the Company's ordinary warehouse conditions." In an action for trespass, in moving certain stone belonging to the plaintiff, the defendants pleaded the agreement in justification. The plaintiff' contended that the agreement conferred a right in Equity to personal chattels, or to a charge or secui'ity thereon, and was therefore a Bill of Sale, and void for want of registration. The Court (Lord Russell, C. J., and Charles, J.) held that the agreement gave the defendants no right in Equity, but merely recognised their existing legal right or lien which depended on their actual possession of the premises (r). (p) Charlem-ortli v. Mills, 1892, A. C. 231. (?) Morris r. Delobhel Flipo, 1892, 2 Ch. 352; following lieevcf r. Barlow. 1883, 12 Q. B. D. 430 (ante, p. 28), and E.r parff Huhhurd, mpra. (»•) Spencer v. Midland Raihray Co., 189.5, 11 T. L. R. «8. SECURITIES DEPENDENT ON POSSESSION. Tlie effect of a contract to give a pledge, or a similar security, at some future time appears to be sufficiently clear. " According to tlie law of this country, a mere contract to pledge even specific goods, and even although the money is actually advanced upon the faith of the contract, is not sufficient to carry the legal property in the goods " (.«). But it creates a right which would be enforceable in a Court of Equity, and is, therefore, if in writing, void under the Act of 1882, since it cannot be expressed in accordance with the statutory form. But the avoidance of the document would not affect the title of the pledgee if possession had afterwards been delivered in pursuance of the contract (f). (x) Willes, .T., in Mpiic-firhi r. Bnrhrr, ISftf), L. R., 2 V. P. ;5S. (0 Cf. i>rr Ndi-tli, .[., in ./,(,•/■/.. r. .I„rr!s, IsOU, V,:\ 1,. J., Cli. 10. CHAPTER V. BILLS OF SALE IN SECURITY FOR MONEY. A Bill of Sale given in security for the payment of money is essentially a mortgage of chattels, and is subject to the general law applicable to mortgages of personalty, except in so far as the law is varied by the provisions of the Bills of Sale Acts. But two important distinctions exist between Bills of Sale under the Act of 1882 and ordinary mortgages of personalty: (1) The scope of the Act is limited by the definition of " personal chattels," which, is partly wider, partly narrower, than the legal definition of chattels apart from the Statute ; (2) The compulsory form in the Schedule to the Act, when read in connection with the Act itself, greatly restricts the freedom of conti-act which is permitted, in Law and Equity, between mortgagor and moi-tgagee. It is the object of this Chapter to explain in outline the rights and liabilities of the pailies under mortgages of personalty generally, and, in particulai", under Bills of Sale in the statutoiy form. For information in detail as regards the provisions of the Act of 1882, the reader is referred to the notes which accompany the Act and the statutory form, po.sf. CreatiuH of Murtydcje. — A mortgage of personal chattels may at Common Law be effected without deed (a). It is not necessary, at least where possession is given, that the agreement should be evidenced by or reduced into writing (b). But if it is reduced into writing the writing is, on the general principles of evidence, the only evidence of the agi-eement ; and if the written document is avoided by the Acts the transaction falls with it, unless the grantee has obtained possession of the chattels, and can defend his possession by some independent title (c). A mortgage of chattels, in the strict sense, is " an assignment for valuable consideration defeasible on payment of the considera- tion " (d). Whether the defeasance is expressed in the deed or (a) Seevef r. Capper, 1838, 5 Bing. N. C. 136, where possession was given ; Flori/ c. Denni/, 1852, 21 L. J., Ex. 223. (i) Keii-loL-e v. fihrewfhury, 1888, 21 Q. B. D. 41. ((■) Ex pai-fe ParMim, re Toiciiwiitl, l»8(i, 16 Q. B. D. 532 ; JIurrif r. Velohbel Flipo, 1892, 2 Ch. 352. (fl) Parke, B., in Flori/ c. Denny, 1852, 21 L. J., E.\. 223. 54 BILLS OF SALE IN SECURITY FOR MONEY. instrument of assignment makes no difference in the nature of the transaction ; but under the Bills of Sale Acts the defeasance is deemed to be part of the Bill of Sale, and the omission to register it renders the registration of the Bill of Sale void (e). Apart from the Act of 1882, a valid mortgage of chattels might be made either by an equitable assignment or by a licence to seize. Thus, a deed by which a debtor covenanted that if the debt was not paid on a day named certain chattels should be charged with it, and that he would, when required, assign them to the creditor, created an equitable security under which the grantee had a right to take possession througli the agency of the Court : though, if uni-egistered, it was liable to be avoided as against an execution creditor or a trustee in bankruptcy (/). A licence to take possession of chattels as security for a debt gave no legal or equitable title until seizure ; but when possession had been taken it was the same as if the grantor had put the grantee in actual possession of the chattels. "• Whether the debtor gives the possession of a chattel by delivery with his own hands, or points it out and directs the creditor to take it, or tells him to take any he pleases for the payment of his debt by the sale of it, the effect after actual j^ossession by the creditor is the same" (g). But now, if the agreement is committed to writing, the Act of 1882 requires the parties to express it in accordance with the statu- tory form. Every Bill of Sale in seeui-ity for the payment of money must be a mortgage in the statutory form ; and equitable assignments and licences to seize are no longer available as securities. Agreement. Specific Performance. Fraud. — An agreement, whether oral or written, to give a Bill of Sale does not requii-e registration under the Acts (/i). Where there is an agreement for value to give a Bill of Sale, Avhich is subsequently given and duly registered, there is sufficient consideration for the latter without its being necessary to register the agreement also (a). Money advanced on the faith of an absolute promise to give a Bill of Sale is to be considered as advanced on the ci'edit of the Bill of Sale ; and the Bill of Sale is not to be considered, for the purposes of the law of banki-uptcy, as given for a past debt {j). Formerly, a vvi-itten agreement to give a Bill of Sale, when relied on as an equitable assignment or charge, required registration as a Bill of Sale (A*). (c) Act of 1878, Section 10, post. (/) Edwards v. Edwards, 1870, 2 Ch. D. 291. ig) Per Curiam, in Co7ir/reve v. Eueits, 1851, 21! L. J., Kx. 273. (h) Kx parfK ILoman, re Broadbent, 1871, \i. \\., 12 Kii. 5!IS ; Ex parfe llaxxtrrll, re llemhi'jwai/, 1883, 'Jf.i Ch. D. 020. (i) Pir North, .r., in Jarci» v. Jarvis, 1S03, 113 li. .1., Cli. 10. (,/) niillon V. CriMwcIl, 1852, 22 L. J., Q. I!. 7s ; //-(,r/.v r. Jtii-kcft, 1850, 28 L. .1., Kx. 197; Ex parte Kiny, re Kim/, 1870, 2 Ch. D. 250. (Ic) Ex parfe Macicay, re Jeavom, 1873, Jj. H., 8 Ch. 613; Edtvards c. Edwards, 1876, 2 Ch. D. 291. AGREEMENT, SPECIFIC PKHFOKMANCE, FRAUD. 55 " A Court of Equity will not decree specitic performance of a contract to make oi- take a loan of money, whether the loan is to be on security or not. This was decided by Sir J. Romilly in Rogers v. Challis (l) and SicJiel r. Mosenthal (rii), and these decisions were approved by the Privy Council in Larios r. BoHanij y (rurety (n). In other words, a (Jourt of E(|uity will not compel the intended lender to make, or the intendetl borrower to take, the loan, but will leave the parties to such a conti^act to their remedies by action at Common Law for damages " (o). But specific performance has been decreed of an agreement to execute a mortgage in consideration of a debt due, or of an advance actually made, unless the money is repaid (p). Where a deed empoAvered a creditor, on default in payment at a stipulated time, to tender to the debtor a Bill of Sale for execution, and in case of non-execution for seven days to execute the Bill of Sale as attorney for the debtor, the Court refused to restrain the creditor from executing a Bill of Sale under the power. '' What has been done is simply to displace by contract the necessity foi- coming to the Court for specific performance " ((^ J. A Bill of Sale obtained by a fraudulent misrepresentation, and repudiated by the giver on discovering the fraud, is void (r). Where a money-lender advertised loans on " easy terms," and a person induced by the advertisement borrowed £100 and gave a Bill of Sale over his furniture, believing it to be a security for £100, whereas it was expressed to secure £123 with interest varying in certain cases of default from forty to eighty per cent., Malins, V. C, ordered that the Bill of Sale should stand as security for £100 with reasonable interest (.s). So, whei'e a money-lender advertised money " on eas}- terms," and a person borrowed £100 and executed a Bill of Sale, as he believed, to secure that sum, with interest at 4| per cent., by weekly instalments, whereas the Bill of Sale was a security for the repayment of £150 by weekly instalments of £2 10s., the Court set aside the Bill of Sale (f). Again, where the defendants, knowing a Bill of Sale which they held to be void in consequence of a recent judicial decision, sent for the grantor, and required him to renew the Bill of Sale, without telling him that it (?) 1859, 27 Beav. 175. (m) 1862, 30 Beav. 371. («) 1873, L. R., 5 P. C. 3iG. (o) Chitty, J., in Western Wagon Co. v. West, 1891 [1892], 1 Ch. 271. (/)) Anhton V. Corrigan, 1871, L. R., 13 Eq. 76; Hermann v. Hodges, 1873, L. R., 16 Eq. 18. (g) North, .T., in Furnivall i: Hudson, 1892 [1893], 1 Ch. 335. (r) Lord J^sher, M. R., in Cochrane c. Moore, 1890, 25 Q. B. D. 57. Tlie ciicmustances of the t'raucl are not reported. (») Jlehfiam c. Barne/f, 1873, 21 W. R. 309. {t) Moorhouse r. Woolfe, 1882, 'i6 L. T. 371-. Kay, J., held that where a man represents to the public by advertisement that he will lend money on ea.sy temis, and afterwards lends it on very liard terms, the onus lies on him to sliow that ho has removed from a borrower's mind the imi)rc.ssion ))roduced by such representation, and clearly explained to him the terms on which the loan lias been made. The judKment was that, it appearing that the £100 and interest at \\ per cent, had lieen repaid, the defendant must deliver up the Bill of Sale to the plaintiff, and pay the costs of the action. 56 BILLS OF SALE IN SECURITY FOR MONEY. was void, Kekewicli, J., held that the substituted Bill of Sale had been obtained by a trick, and set it aside on the grantor's paying- back the money actually advanced with interest at five per cent. («). In one or two unreported cases the grantor has successfully repudiated a Bill of Sale on the ground that he was induced to sign it by the fraudulent representation of the grantees, or theii' agent, that it was not a Bill of Sale but a mortgage. On the other hand a person who induces another to lend him money on the security of a Bill of Sale by falsely representing that the chattels are unincumbered, when they are in fact subject to a subsisting Bill of Sale, is guilty of an indictable false pretence (v). (Jrautora RlglU tu Possession ^.Vc. — The right of the grantor to retain possession of the chattels formerly depended upon the terms of the mortgage deed or instrument (iv). The Act of 1882, by Section 7, prohibits the gi-antor fi-oni seizing or taking possession of the goods, except in certain specified events. This Section is incorporated in the statutory form in the shape of a proviso. Even after possession has been taken, the goods are not to be removed or sold for five clear days (Section 13). The object of this provision is to give the grantor an oppoi'tunity of purging his default ; and a summary remedy is given by Section 7, whereby the grantor may obtain an injunction to i-estrain removal or sale on satisfying the Court that the cause of seizure no longer exists. The effect of Section 7 is to give the moi-tgagor a right to retain the possession of the goods until default is made in one of the enumerated conditions. " If that i^ight is interfered with by the gi-antee he would be liable to an action for trespass, or to an action on the deed, in which the damages would be the same as in the other action, or, in case the deed did not contain the stipulations, an action on the Statute, which would have the same effect" (a*). An action for wi'ongful sale and conversion is more properly tried in the Queen's Bench than in the Chancery Division {ij). The measure of damages for wi-ongful seizure and sale is not the actual value of the goods, but the damage which the mortgagor has actually sustained : i.e., in general, the value of his limited interest or equity of redemption in the goods {z). But a jury may be entitled to give substantial damages, even although it appears that the plaintiff would have sustained as much pecuniary loss if the seizure (h) Bouchette v. Conaolidated Credit Corpofafion, 1889, 5 'V. L. R. 653. (») Reg. V. Meakin, 1869, 11 Cox C. C. 270. («•) See Note A, pout. U) Bovveii, L. J., in .Jolnnxm c. Dijirose, 1«!«, 1 Q. li. 512. ij/) IVal/im V. Nai/cfx, 1890, W. N. 120. (--) Brierly r. Kcnla/, 1852, 21 L. .1., Q. li. 101 ; Muore r. Shcllrij, 1883, 8 App. C'n. 285. GRANTOR'S RIGHT TO POSSESSION. had been made at'ter due notice {a). In .special cii'cum.stances the Court has refused to set aside a verdict for vindictive damages (6). Where part of the goods were sold wrongfully, Denman, J., held that, while the mortgagor was entitled to damages for the wrongful sale to the full value of the goods improperl}- sold, the Bill of Sale was not avoided, but remained as an effectual secui-ity over the rest of the goods, and that the Bill of Sale holder would be entitled to seize and sell in case of any subsequent default (c). If the deed is void, damages are to be assessed on the footing that the sale is altogether wrongful, even although there is no evidence of negligence or impropriety in the conduct of the sale (d). The measure of damages seems to be the real value of the goods with any special damage claimed and proved ; but the Bill of Sale holder may counter-claim for the amount of principal due to him, together with interest, if the Bill of Sale is void in toto, at five per cent. ; but if the Bill of Sale is void only in respect of the personal chattels comprised in it, at the rate stipulated in the Bill of Sale. If goods have been seized and sold under a void Bill of Sale, and the grantor recovers the proceeds of the sale as money had and received, he thereby elects to waive the toi-t, and cannot afterwards sue for damages in respect of the wrongful sale. The same is the effect, if the proceeds of the sale are received by the trustee in bankruptcy of the grantor, upon an application to set aside a Bill of Sale as v^oid against him : he cannot afterwards bring an action of trover to recover the difference between the value of the goods and the amount i-ealised by the sale (e). In an action for ti-espass by seizing goods under a void Bill of Sale, it appeared that before the seizure the jilaintiff had filed a petition in bankruptcy, and had inserted the defendants as secured creditors in the statement of his affairs. The landlord having distrained, the defendants seized and sold. The proceeds of sale, after satisfyiug the landlord's claim, were retained by the defendants, who proved for the balance of their debt. A composition of 2s. 6d. in the pound was proposed, and, after a report had been made by the Official Receiver, was sanctioned by the Court. A cheque for the compo.sition was sent to the defendants by the plaintiff's solicitors " without prejudice to any claim in regard to the seizure and sale." It was held by the Court of Appeal, reversing Pollock, B., that the plaintiff Avas not entitled to recover. Lord Esher, M. R., based his judgment upon this : " That the bankruptcy proceeded on the basis that the Bill of Sale was valid, and that this was with the knowledge and acquiescence and for the benefit of the (a) MuffPj/ V. S!ade,i, 1868, L. R., i E.x. 13. (J) Thoma» v. Harris, 1858, 27 L. J., Ex. 353. (e) Monfoii r. Mihie,; 1892, 8 T. L. R. ilT. (d) Wallin v. Sai/ers, 1890, W. N. 120. (e) Siiiifh c. Baker, 1873, L. R., 8 C. P. 3.50. 58 BILLS OF SALE IN SECURITY FOR MONEY. plaintiff, who thereby affirmed that the Bill of Sale was valid, and cannot now be heard to say that it was invalid in order to obtain a further advantage " (f). While the grantor has a statutory right to retain possession of the goods the property in them passes to the mortgagee on the execution of the deed (g). Consequently, the grantor has no right to sell or dispose of the chattels. Without going so far as to say that he can never give a good title to a purchaser, it is safe to say that the Court would now be very slow to infer an authority by the grantee enabling him to do so (h). If the grantor sells the chattels, the grantee may recover possession of them from the purchaser, or may su.e the purchaser for damages for conversion (i). If the grantor employs an auctioneer, without notice of the Bill of Sale, to sell the chattels by auction, the auctioneer, by selling and delivering them in the ordinary course to purchasers, renders himself liable in trover to the grantee ; and it makes no difference whether the sale takes place on the premises of the grantor or in a public auction room (A:). The measure of damages recoverable against the auctioneer is the actual damage the grantee has sustained by the injury to his security (/). But if the gi-antor, after sending the goods to the auctioneer's premises, himself sells the goods by private contract, the mere fact that the auctioneer communicates the purchaser's offer to the grantor, and subsequently receives the price on his behalf and hands a delivery order to the purchaser at the grantor's request, does not make him liable for conversion. In such a case he acts as a mere conduit pipe, and does not assume to deal with the chattels so as to affect the property in them (m). ItigliU and Eemedies of Gra)itee. — The right of the grantee to take possession and sell the chattels is regulated by Sections 7 and 13. A promise by the grantee, after default has been made, not to exercise his right to seize or sell will not operate as a waiver of his right, unless it is supported by considei-ation — unless, e.g., the grantor has thereby been induced to alter his position. It is not {f) live V. Miifual Loan Fund, 1887, 19 Q. B. D. 347. ('/) The property is, however, defeasible on t'aihire to I'csister within seven days (see Section 8 of The Bills of Sale Act, 1882, post). (k) For an outliTie of the former law as to the grantor's,/«.s dUpotiendi, see Note B, pout. (i.) See, for example, Ilickley i\ Greenwood, 1890, 25 Q. B. D. 277; Simmons v. Hughes, 1890, at Sol. J. G59; Edirards i\ 3Iarsfon, 1890 [1891], 1 Q. B. 225. {k) Cochrane v. Jiymill, 1879, JO L. T. 744 ; ConsoUdated Co. r. Cnrfis, 1892, 1 Q. B. 495; see also Jirown v. Hic'kiiihotham, 1881, 50 L. J., Q. B. 42(). (/) Myers v. Marsh, 188:5, 1 C. & E. 116. In this t-ase the oriffiual advance was £54 ; £29 had been i)airt off, and only part of the furniture was sold. Cave, J., directed the jury as follows : " If the d"foudant had sold all the goods, no doubt the plaintift' would be entitled to £25, but he only sold i)nrt, and w(! are left in darkness as to the ))roiiortion sold. The plaintiff had to .show the value of the things left, and what they were likely to realise. If, with the things wbich were left, the i)laintiff was fully secured, then he has sustaiufd no damage. If the goods not sold werc^ oulv worth £5, then the ijlaiutitT has lost £20." (/Hi National Mercniitile Bank r. Sj/mill, 1881, It b. T. 7(:7 ; Tiiriirr r. l/oi-krj/, 1887, ."jfi L. .1., Q. B. aoi, where the hcadnote is too wide. RIGHTS AND REMEDIES OF GRANTEE. 59 enough that he has been induced to believe that the grantee woukl hokl his hand for a specified time (n). Tlie power of sale of a mortgagee of chattels under a Bill of Sale has been much discussed; and in E.r parte Official Receiver, re Morritt (o), before the full Court of Appeal, this question gave rise to a divergence of opinion which is not a little curious. All the Judges were agreed that, between the passing of The Conveyanciag Act, 1881, and the passing of The Bills of Sale Act, 1882, the powers of sale conferred by the former Act were incorporated in every Bill of Sale by deed, unless they were varied or excluded by the terms of the deed. Fry, L. J., was alone in thinking that these provisions are still incorporated in Bills of Sale in the statutory form: the effect of the Bills of Sale Act and the statutory form being, in his lordship's opinion, to take away the right of varying the provisions of the Conveyancing Act, and to subject these provisions to the further restrictions imposed by Section 13 of the Act of 1882. Cotton, L. J., in whose opinion Lindley and Boweu, L. JJ., concurred, held that when a Bill of Sale contained an express power to seize, the provisions of the Conveyancing Act did not apply, because, after possession was taken, the mortgagee would have a right to sell analogous to that of a pledgee — that is, after allowing reasonable time for payment, and subject to the mortgagor's right to redeem at any time before sale. The provisions of the Conveyancing Act would, therefore, be unnecessary. Whether the Conveyancing Act would apply if a Bill of Sale contained no expi-ess power to seize, and no other provision rendering the powers of that Act unnecessary, the learned Judge did not decide. This question was simply left open. It was neither answered in the afiiinuative, as was afterwards assumed by Bowen and Fry, L. JJ., in Watlxiiis v. Ecaiis (^p), nor in the negative, as stated by Lindley, L. J., and the other Judges in Calvert v. Thoma.s ((j). Lord Esher, ]\1. R., and Lopes, L. J., took the broad view that the Legislature intended the Act of 1882 and the statutory form to be self-sufficing, and independent of the Conveyancing Act ; that the plain meaning of Sections 7 and 13 is to give a power of seizure and sale in certain events (r) ; and, consequently, that the provisions of the Act of 1881 are not incorpoi'ated in Bills of Sale. The accession of Lindley, L. J., to this view gives a decided preponderance of authority in its favour, and it would seem now to be the accepted doctrine of the Courts that " it would be inconsistent with the form in the Schedule to the Act of 1882 to hold that the provisions of the Conveyancing Act are incorporated thereby " (.s). (h) Williamf v. Stern, 1879, 5 Q. B. D. 409. (o) 1887, 18 Q. B. D. 222. (p) 18S7, 18 Q. B. D. 386. (q) 1887, 19 Q. B. D. 204. (r) The learnefl .Judges stated that "the right to redeem must lie exercised witliin five days to prevent a sale by the mortgagee." But this is an obvious error. («) Lindley, L. J., in Calvert i: Thomas, 1887, 19 Q. B. D. 204. 60 BILLS OF SALE IN SKCURITY FOR MONEY. It has been held that after five days from actual seizure an liijuuctiou to restrain a sale cannot be sustained (f). But if this is taken without qualification, it would appear to be based upon the erroneous idea that " the right to redeem mu.st be exercised within five days to prevent a sale b}' the mortgag-ee." The more correct statement of the law seems to be that if the mortgagor brings the mone}' into Court, the Court will not allow the power of sale to be exercised (u). The general rule is that where a mortgagee has taken possession the Court cannot restrain him from selling, except on the mortgagor bringing into Court the amount which the mortgagee swears to be due to him on the security (iv). Bat this does not apply when it is appai'ent to the Court, from the terms of the deed, that the sum claimed cannot be due (x). The power of sale carries with it implied trusts of the sale moneys (y). In the event of a sale by the first mortgagee under the power of sale, the first mortgagee is a trustee for the second mortgagee if there be one, oi-, if not, foi' the mortgagor, of any balance after satisfying his own debt and the expenses of the sale (z). If a first mortgagee, having notice of a second mortgage, concurs in a sale of the jDroperty by the mortgagor, and, after satisfying his own debt, allows the balance of the proceeds to be paid to the mortgagor, he is liable to make good to the second mortgagee the amount of his secui-ity to tlie extent of the balance so paid (a). As the first mortgagee has the legal property in the goods, a second mortgagee could not maintain an action against him at law foi' selling; the o'oods without taking- reasonable care to obtain the best prices for them (h). 8ir E. V. Williams, J., suggested that m a Coui't of Equity there might be a remedy for any abuse by the mortgagee in the exercise of the power of sale. But in Equity the i-ule is that if the power of sale has arisen, and if the mortgagee exercises it bund fide for the purpose of realising his debt, without corruption or collusion with the purchaser, the Court will not interfere, even though the sale be vexy disadvantageous — unless, indeed, the price is so low as in itself to be evidence of fi-aud (c). " A mortgagee with a power of sale, though often called a trustee, is in a very ditt'erent position from a trustee for sale. A mortgagee is under obligations to the mortgagor, but he has i-ights of his {t) Waflcim c. Eijcnm, 1887, 18 Q. B. D. HHC. (it) Jones V. Miitthie, 1817, 11 Jur. oOi. («•) ][iU V. Kirkivood, 1880, 28 W. R. .'ioS. The hcailnotc i.s too wide, (a-) Hickxoii v. Barlow, 1883, 23 Oh. D. (i90. iy) Ex parte Rawlingn, re Cleaver, 1887, 18 Q. B. D. 489. {z) Charles v. Jones, 1887, 35 Ch. D. rAl. la) West London Commercial Ihuik r. lieliaiirr I'rrmnneut Bidldin;/ Snrieti/, 1885, 2!» (;h. I). 951. (It) Mnid/kan v. fiharpe, ISftl, 31 L. .1., ('. P. It). (e) Warner r. Jacob, 1882, 20 Ch. D. 220. RIGHTS AND REJIEDIES OF GRANTEE. 61 own which lie is entitled to exercise adversely to the mortgagor." The mortgagee has " the right to realise his security, and to find a purchaser if he can ; and if in exei'cise of his power he acts bond fide, and takes reasonable precautions to obtain a proper price, the mortgagor has no redress, even although more might have been obtained for the property if the sale had been postponed" {d). If the sale itself is irregular or improper, a second mortgagee may be entitled to recover tlamages in Equity for the loss of his security (e). '• A purchaser of the goods with notice that they are being sold under a Bill of Sale is liable .in a Court of P^quit}- to an action by the grantor if the goods have been seized and sold without any default having been made" (/). A term absolving a purchaser from inquiring whether the power of sale has arisen vitiates a Bill of Sale (g). A mortgagee may in some cases obtain the appointment of a receiver: for instance, where he has put a man in possession Avho is forcibly evicted by the mortgagor (h). If a receiver is appointed conditionally on giving security, he will not be protected in his possession of the goods until his title has been perfected by giving security ; until then it is not a contempt of Court to take the chattels in execution (j). But in recent practice, a common course has l)een to direct that until security is given the mortgage debt shall stand as security for the receiver, so that the receiver's appointment takes effect from the date of the order. A mortgagee of personalty is entitled to a decree for an account and in default of payment for foreclosure (k) : and such a decree may be made even if the mortgagoi- and a subsequent mortgagee insist upon a sale (/). A mortgagee is entitled to add to his security all costs properly incurred in defending his security, including the expenses of a sale (ui) : and a Court of Equity imposes on a mortgagor, as a condition of redemption, the duty of paying such costs, although thei-e is no implied contract by the mortgagor to pay them (n). The interest recoverable is not limited to six years, as in the case of mortgages of real estate : thus, when a decree for foreclosure (rf) Per Curiam, in Farrar r. Farrarf, Limited, 18SS, 4(1 Ch. D. TOo. (c) lloole r. Smith, 1881, 17 Ch. D. 434. If the power of sale were tlerivert from The Conveyancing? Act, 1881, ftny person damnified lan expression whicli inchides a second mortpraKee) would have a remedy V)v a Common Law action for damages under the Statute (see Section 21 [2J of that Act ; Ame> r. Hitiduii, 1893, 69 L. T. 292). {f\ Per Lord Esher, M. R., in Blaiherr/ i: Berkeft, 1880, 18 Q. B. D. 9('.. ( r. Edwards, 1876, 2 Ch. D. 291. It) Slude r. Piqif, 1843. 3 Hare, 3.5. (/) Wnyite r. HnulinHi, IS'jl, 9 Hare 62. (/») Liim/ei/ i: Siiiiuioiif, 1887, 34 Ch. T). 698. (h) Kx /Hi'efr Fe>rii,f,^, ,-e Sueyd, 1SS3, 25 Ch. D. 338. 62 BILLS OF SALE IN SECURITY FOR MONEY. was made fourteen years after the date of the mortgage, on which no interest had been paid, Kay, J., held that redemption conkl only be allowed on payment of interest at five per cent, for the whole period of fourteen years (o). The grantee may sue the grantor on the covenant to pay, even although the Bill of Sale is void " in respect of the personal chattels comprised therein" (p). It has been held that a judgment on the personal covenant does not extinguish the security, but only the personal covenant (q). Where payment is to be made by instalments, and it is provided that on default in payment of any instalment the Avhole of the impaid principal shall immediately become due, the gi-antee has an immediate right of action for the unpaid principal whenever default is made, and the Statute of Limitations runs from that date, not as to the u.npaid instalment oidy, but as to the whole of the unpaid principal (?•). Where, in an action brought to set aside a Bill of Sale as void, the Court is satisfied that there is a question as to its validity to be tried, an injunction may be granted to restrain the grantee from removing or selling the goods, or otherwise exercising the powers and authorities contained in the Bill of Sale, but generally on the terms of the mortgagor bi-inging into Court the amount due to the . mortgagee (.?) . But such an injunction will not be granted on the mere suggestion that the trustee in bankruptcy of the mortgagor may be able to impeach the Bill of Sale (t). An interim injunction when obtained ex pa7-fe ought only to be granted to a day certain (■»). If a plaintiff, on obtaining an interlocutoiy injunction, gives an undertaking as to damages, and ultimately fails on the merits, an inquiry as to damages will be ordered, unless there are special circumstances to the contrary. It makes no difference whether the injunction was obtained by a mistake in law, or by some misrepre- sentation, suppression, or other default of the plaintiff (iv). But an inquiry may be refused if the alleged damage is trivial or remote, or if there has been great delay in making the application (x). In one case, an injunction to restrain the grantee from soiling had been made on the application of a receiver in bankruptcy. The receiver forcibly pi-evented tlie grantee from rei)iovin.g the goods, the consequence of which was that the landlord was able to distrain. On a subsequent (o) Mellersh v. Brown, 1890, 45 Ch. D. 225. (;)) See Section 8 of the Act of 1882, poKt. {q) Popple i: Sylvester, 1882, 22 Ch. 1). 98. (r) Jlciiip V. Garland, 1843, 4 Q. B. 519; Meeve^ r. Ihilchfr, l,si)l, 2 Q. B. 509. (k) Jlickxoii V. Darlow, 1883, 23 Ch. D. 690. {f) Ex piirlc Iku/lpy, re llarl, 1880, 15 Ch. D. 223. iu) K.r piirfr Ahra'm*, vf Jofivxfoni', 1884, .50 L. T. 181.. (w) (IrllJIIh r. lilitkr-, 1884, 27 Cli. I). 474, (lissfiitiiitr I'voin Mio oiiiiiidii of .IcNscl, M. R., in Umith r. I),ii/, lss2, 21 Ch. D. 421; see iilso llimt r. Jliml, 1885, 54 1>. .1., Cli. 289. (.r) Sinilli r. I>(ti/, nupra. COLLATERAL SECURITIES. 63 application for damages sustained by reason of the injunction, the Court of Apjieal held that the grantee had a prima facie right to the costs and expenses of an abortive sale, but not to damages by reason of the distress, which was caused by an unlawful act of the receiver not covered by the undertaking. But the application was refused on the ground that it was not made till nearly four years after the decision upholding the Bill of Sale (?/). Collateral Securities. — The taking of a Bill of Exchange as collateral security does not suspend the grantee's remedy under the Bill of Sale. He may lawfully take possession of the goods with the intention of taking them out of the order and disposition of the grantor, though the Bill of Exchange has been indorsed over for value. ■• Whether there might be any equitable right to stay the sale, we need not now inquire" (~). And it seems that there would be no Equity to restrain a person who has discounted such a Bill of fjxchange or promissory note from recovering upon it at law. But where promissory notes were given by the mortgagor as collateral security', and the mortgagee transferred the mortgage without assigning the collateral security, an injunction was granted to restrain him from pi-oceeding at law to recovei' the amount of one of the promissory notes pending a suit instituted by the mortgagor to redeem and settle the equities of the parties (a). The mere deposit of a policy of life insurance as a collateral security is not a condition or defeasance affecting the registration of a Bill of Sale (6). But a promissory note, or other instrument given as collateral secui-ity, may operate as a defeasance of a Bill of Sale, and make it void, as when a promissory note is made to pi'ovide for j)ayineiit of the same instalments of pi'incipal and interest as are payable under the Bill of Sale, but a stipulation is added that in case of default in payment of any instalment the total amount of the unpaid instalments shall become due and payable (c). In such a case, however, the avoidance of the Bill of Sale does not prevent the holder from recovering on the promissory note (d). It is a general principle that if a suret}' voluntarily proposes to pay the debt, the creditor must make over to him the securities which he holds, so that the surety may realise them, and recoup himself the sum which he has paid (e). Hence, if through any ^ neglect on the part of the Bill of Sale holder, the Bill of Sale is* lost as a security, or is not properly perfected, the surety is pm (y) Ex parte Hall, re Wood, 1883, 23 Ch. D. 641. (r) Bramwell i\ Eglinton, 1864, 33 L. J., O. B. 130. (a) Walker r. Joiieg, 1805, L. R., 1 P. C. 50. (6) Carpenter i: Been, 1889, 23 Q. B. D. 500. (e) Coumell v. London and West minster Loan and Disconnt Co., 1887, 19 Q. B. D. 512; see note (>•) to Section 10 of the Act of 1878, poxf. Idt Monetary Advance Cn. i: Cater, 1888. 20 Q. B. D. 785. (e) Wulff c. Jay, 1872, L. R., 7 Q. B. 756. 64 RILLS OF SALE IN SECURITY FOR MONEY. tanto discharged (/). Thus, under the Act of 1854, a surety was held to be discharged by the hiehes of the grautee in not registering the Bill of Sale, and in neglecting to seize upon default in payment (/). The same principle has been applied under the Act of 1882, where a loan was made on the security of a sham hiring agreement containing a power of sale. The defendants had guaranteed the due performance of the agreement, and had agreed to make good any loss which might be sustained on a sale ; but it was held by Wills, J., that as the hiring agreement was void under the Act, the lender was not entitled to recover a deficiency from the guarantors {g). On the other hand, where a debt was held to be void as a loan conti^acted by a company in excess of their statutory powers, Kay, J., held the guarantors liable Qi). If the obligation of a surety is to pay the debt upon demand, a demand must be made before an action is brought or before the money can be considered as owing by him (/). A policj' guai'anteeing payment b}- mortgagor to mortgagee is chargeable with stamp duty of 6d. as an agreement, and not of Id. as a polic}' of insurance by way of indemnity against loss or damage of or to any property (/). Transfer or Assignment. — A transfer or assignment of a registered Bill of Sale need not be reg-istered, nor does a renewal of registration become necessary by reason only of a transfer or assignment of a Bill of Sale (A"). The o-vantee of several reo-istered Bills of Sale executed a voluntai-y settlement whereb}^ he assigned to trustees the debts secured by the Bills of Sale, Avith power to sue for the debts, upon trust to sell and convei't into nioney the ti-ust premises, and execute and do such assurances and things as should be expedient, and to apply the proceeds for the benefit of certain persons. The settlor afterwards got in these debts, and died intestate. The Court of Appeal held that the debts were completely assigned by the settle- ment, and that the trustees were entitled to prove as creditors against his estate in respect of the debts received by him. "The trustees," said Lindley, L. J., " could, in my opinion, put in force, either in the name of the settlor, or, if necessary, in their own name, all or any of , the powers contained in the Bills of Sale — could do whatever might be necessary to revest the goods in their respective grantors on payment off of the moneys due on their respective securities. (f) Widffo. Jul/, 1872, L. R., 7 Q. B. 750. (//) Ilroin, r. Blaine, 1884, 1 T. L. R. 158. (h) Yorkuhire Wagon Co. v. Madiirr, 1881, 1!) Cli. 1). I7S ; reversed on niiotlier point, 1882, 21 Ch. D. 309. (fl 1)1 V liroirn'n Knfafe, Brnini r. Uroin,, IsO.'f. 2 (Mi.:fOII. (/) Mm-tqai/c himranrc f7(/(- r. Coiiimigniotiers uf Inland lifinnnae, 187'J, 1 Kx. D. 270. («) Horn,' r. Jlnr/he^, ISSl.'f! Q. B. I). 070. (el P'-r Lindley, L. .1., in n- Pa/rlrl.-, liilh r. Talhan,, INDO I ISill J, 1 (^l. 82. REDEMPTION BEFORE AND AFTER SEIZURE. 67 o-i-antee refused to redeliver the goods, the grantor could at once maintain detinue. But if payment i.s not made at the stipulated time a subsequent tender will not revest the property or enable the grantor to sue in trover or detinue : for the legal estate of the grantee has become absolute, and the grantor must bring a suit for redemption " on the terms of payment of the principal sum and interest, the expenses, and the costs of the redemption suit, except there has been some oppressive action on the part of the grantee which would affect the question of the costs of the suit" (ic). When injury has been done to the chattels in the course of removal, through the negligence of the grantee or his servants, the grantor may be allowed such damages, or may have an inquiry as to waste, in a suit for redemption (iv). An opinion seems to have been entertained by Mathew and A. L. Smith, JJ., that the grantor of a Bill of Sale has a right to redeem at any time, even before the stipulated date or dates for payment, by paying the principal sum wath interest to date (x). But this is' contrary to principle, for a mortgagor has no right to disturb the investments of his mortgagee ; and the contention Avas rejected by the Court of Appeal in an unreported case (y). In an ordinary mortgage containing a proviso for redemption which specifies a particular day for repayment, the mortgagee cannot be compelled to accept payment before that day, although the full amount of principal, together with interest up to the specified day, lias been tendered to him (::). If, however, the mortgagee takes proceedings to recover the mortgage debt, he is bound to accept in satisfaction of his secui-ity the principal money with interest to the time of payment (a). A mortgagee is not bound to accept payment from a stranger Avho has no title to redeem (h). But any person interested in the equity of redemption — such as a puisne incumbrancer or a person who has contracted to buy the pi-operty — may redeem (c). It has been suggested that an execution creditor has a right to redeem. All the authorities cited in support of this proposition are cases relating to land, and depend on the principle that a judgment creditor who has taken out execution has a charge on the land, and may, as a puisne incumbrancer, file a Bill to redeem. There appears' to be no authority for applying this principle to the case of chattels. (w) Johnfon r. Diprose, 1893, 1 Q. B. 512; cf. Bank of New South Wales v. O'Connor, 1889, \i App. Oil. 273. (x) GoUUtrom v. Tallerman, 1886, 17 Q. B. D. 80 ; reversed on another point, 18 Q. B. D. 1. iy) Tozer v. Durounf Bankinij Co., .5th June, 1894; see also re Grace*, 1883, 27 Sol. J. 215, cited under Section 7 of the Act of 1882, po*f. iz) Browne r. Cole, 1845, U I4. J., Ch. 167. A mortgage may, however, expressly provide for earlier redemption {Hardinq v. Tinyey, I860, 34 L. J., Ch. 13). ((() Prencott V. Fhippf, 18S3, 23 Ch.'D. 372. (J) Jaiiiex r. Bin,,, 1818, 3 Swanst. 234. (c) Pearie c. Morrh, 1869, L. R., 5 Ch. 227; L. R., 8 Eq. 217. 6S BILLS OF SALE IN SECURITY FOR MONEY. But when goods or chattels liave been seized in execution, and are claimed by the grantee of a Bill of Sale by way of security for debt, " the Court or a Judge may order the sale of the whole or a part thereof, and direct the application of the proceeds of the sale in such manner and upon such terms as may be just" {d). If the mortgagee refuses a valid tender of the principal and interest (and costs, if any) due to him, he loses his interest from the date of the tender. After such a tender he is bound to reconvey the property and deliver up the title deeds (e). The equivalent of reconveyance seems to be the consent to satisfaction " signed by the person entitled to the benefit of the Bill of Sale" (/). The mortgagee cannot claim to retain the Bill of Sale after satisfaction of the debt, and a stipulation that after satisfaction the Bill of Sale and all documents signed by the mortgagor in relation to the loan shall remain in the custody and be the property of the mortgagee, has been held to be inconsistent with the statutory form ( Cli. I). 7:i"). (x) Bell v. Hiiiiderlaud Buildhiy Nocielij, 188S, t\i Cli. D. (il8. (;KAXT()RS RKIH'J" to possession before 1882. 71 propci'ty merely as bailiffs or servants of the mortgagee (c/. Moore r. Shelley, 1888, 8 App. Ca. 285, at p. 290). 2. — Where chattels are assigned in security subject to a covenant, agreement, stipulation, or condition that the grantor shall possess and enjoy the chattels without hindrance until default, the property- passes to the grantee immediately on the execution of the deed (see Gale v. Burncll, 1845, 14 L. J., Q. B. ;UU), but he has no right to possession till default has been made. The effect is to redemise the chattels to the grantor for a term defeasible on non])aymeiit (Fctin v. Bitfleitfon, 1851, 21 L. J., Ex. 41). If there is no express covenant or provi.so, the Court, looking at the whole deed, may infer that the mortgagee's right to possession does not attach until default (Wheeler r. Montejiore, infra). But an express ])ower to seize on the happening of specified events — e.g., if the grantor should become emViarrassed in his affairs, or if any action at law should be commenced against liim-i.x not controlled by a subsequent proviso that until default should be made in payment it should be lawful for the grantor to retain jjossession : and on the happening of any of the specified events, the grantee is entitled to take jjossession, though no default in payment has been made (Ec parte Xafioual (Tuardian Aio^tirance Co., re Francis, 1878, 10 Ch. D. 408). While the term or bailment subsists, the grantee cannot maintain trespass against a stranger, and will be nonsuited on a plea that the chattels were not the chattels of the grantee (TlTiee/er v. Montejiore, 1841, 2 Q. B. 133). If the grantee's right of possession is to attach on default of payment upon demand, and the Sheriff seizes and sells the goods under a writ of fi. fa. against the mortgagor, the mortgagee cannot maintain an action of trover without proving a previous demand of the money (Bradley v. Copley. 1845, 14 L. J., C. P. 222). On the other hand, if the mortgagor wrongfully sells the goods the bailment or demise is determined, and the mortgagee may at once sue the purchaser in trover (cf. Cooper r. Willomatt, 1845, 14 L. J., C. P. 219 ; Cooper v. Brahain. 1867, 15 L. T. 610). On the same principle, if the mortgagor became bankrupt, and the goods were sold by his assignees, the mortgagee might at once maintain trover against them (Feini r. Bitflegton, 1851, 21 L. J., Ex. 41). If the mortgagee seized and sold the goods before his right to seize and sell had attached according to the terms of the deed, he was liable in trespass, but the measure of damages was held to be not the value of the goods, but the value of the mortgagor's limited interest therein at the time, or, in other words, the loss which the plaintiff had really sustained by being deprived of the possession of the goods (Brierly r. Kendall, 1852, 21 L. J., Q. B. 161 ; Tom.'< V. Wihon. 1863, 32 L. J., Q. B. 33, 382; see also Johnson c. Steur, 1864, 33 L. J., C. P. 130). In order to justify seizure, the grantee must comply with the conditions precedent contained in the deed. If his right attaches on the grantor's non- performance of a condition, reasonal)le time must be given for performance. ■■ When a condition is to be performed immediately, he shall have a reasonable time to perform it according to the nature of the thing to be done. So if it is to be performed upon demand" (Com. Dig., "Condition," G. 5). A plea justifying seizure, and alleging notice to pay, must also allege that default had been made before the seizure (Rogers v. Mutton, 1862, 31 L. J., Ex. 275). When jiayment was to be made tm twenty-four hours' notice in writing, the Court lield tliat notice given at 2 p.m. requiring payment on the following- day was insufficient, and th(> grantee was liable in trespass for seizing the goods (Brirrhi r. Kendall, si(/)/7(). When ])nyinent was to be made "immediately after notice " the Court held that. " whether the question was one for the Court 72 BILLS OF SALE IN SECURITY FOR MONEY. or the jury," half-an-hour's notice was not a reasonable notice, and the seizure was wrongful (Brighty r. Norton. 1862, 32 L. J., Q. B. 38). So, when payment was to be made " immediately upon demand in writing-," and a written demand was given by the attorneys of the grantees to a Sheriff's officer who was authorised to receive the money, but who simply lianded the document to the gi'antor and then seized the goods, it was held that there was no default, because the grantor was entitled to a reasonable time to get the money and seek the grantees or some one whom he knew to be authorised to receive it {Toms V. Wilson, 1862, 32 L. J., Q. B. 33; in Ex. Ch., ibid. 382). A Bill of Sale gave the grantee power to take possession in case the principal sum and interest should not be paid " on demand." A formal demand was made on the wife of the mortgagor, and on nonpayment the mortgagee entered and seized. The Court of Exchequer held that the demand on the wife was not a sufficient demand. " It seems to me there could not be properly a demand made on the wife ; there is nothing to show that the husband was from home and that there was no possibility of making a demand upon him " (Martin, B., in Belding v. Read, 1865, 34 L. J., Ex. 212). A Bill of Sale gave power to seize and sell on default in payment ■'instantly on demand, and without delay on any pretence whatsoever"; and provided that the demand might be made personallj- on the grantor, or by giving or leaving verbal or written notice to or for him at his place of business &c., so, nevertheless, that a demand be in fact made. In the grantor's absence from his place of business, a demand was made upon his son, who stated his inability to meet it ; the Court held that the notice required by the deed in case of the grantor's absence was such a notice as might be reasonably supposed to reach the grantor, and to give him an opportunity of complying with it within a reasonable time, and that the grantees were therefore not justified in seizing the goods {Massey v. Sladen. 1868, L. R., 4 Ex. 13). Again when a Bill of Sale provided for payment of the principal sum " upon demand if and when the mortgagee should so require by a notice in writing," and also for the payment of interest " to the expiration of the said notice when the same shall be given," Bacon, C. J., held that the mortgagee was not entitled to seize on the same day on which he made the demand for ])ayment, the demand not being at once complied with {Ex jKirtc Trecor. rr Bnnjhardt. 1875. 1 Ch. D. 297). During the absence of two joint mortgagors, a demand was matle on the wife of one of them by a person representing himself to be the agent of the mortgagee, and on nonpayment the property was forthwith seized. The Privy Council held that such nonpayment before the mortgagors had had any opportunity to inquire into the truth of the alleged agency did not constitute default, and that the mortgagee was liable in trespass {Moore v. Shelleii, 1883, 8 App. Ca. 285). Ou the other hand, circumstances may justify immediate seizure. A farmer gave a Mill of Sale oti .V|)i-il 15. and shortly after left home with the money advancetl. On April 22 the grantei" went to liis house, and learned that Iiis family did not know where lie was or wlieii lie would return, and that he might have gone to America for aught they knew. The grantee then demanded the money, and on nonpaynu:!nt put a man in possession, and sold the goods eight days afterwards. The grantor had, in fact, gone for a " spree." Jn an action of trespass and trover, the jury found for the defendant, and the Court of Exchequer refused a rule for a new trial {Wharltov r. Kirkicood, 1874. 29 L. T. 644). The Court of Equity refused t(j inttu'fere by injunction to restrain a mortgagee from pursuing his legal remedies to get possession of the mortgaged jjrojierty {Davies v. WilUaias, 1843, 7 Jur. (i63). GRANTOR'S JUS DISPOXEXDI BEFORE 1882. 73 Note B. — Grantor's Jus Dispoxexdi Before 1882. lu general, if the grantor sells goods comprised in a Bill of Sale, the grantee may recover them from the pm-chaser. Formerly an exception existed when a Bill of Sale was given over stock-in-trade, with the intention that the grantor should carry on his business. In such cases the Bill of Sale was usually expressed to be a continuing security upon present and future or substituted stock-in-trade : and, wliile the gi-antee had a good charge upon substituted articles {;/), a purchaser from the grantor in the ordinary course of business acquired a good title. By Section 5 of the Act of 1882, po^t, a Bill of Sale in security for money is void, except as against the grantor, in respect of after-acquired property. The effect of this enactment is practically to destroy the value, as securities, of Bills of Sale comprising fluctuating stock-in-trade, and to repeal the former law as to the gi'antor's right to dispose of the chattels in the ordinary course of his trade or business. The following summary of the cases on this subject may be useful for reference : — A farmer and dealer gave a duly registered Bill of Sale, dated in 1879, of all the growing crops and all the, goods, chattels, and effects which then were, or thereafter should be, on or about his farm and premises. Sub- sequently the defendant bought from him twelve quarters of wheat, and the grantees brought trover. The defence set out " that the plaintiffs stifEered the grantor to have possession of the goods, and enabled him to hold himself forth as having not only the possession but the property in the same, and that he sold the same to the defendant, who bought them in the ordinary course of his business, and without any notice that they did not belong to the grantor. That the grantor was suffered by the plaintiffs to carry on his business as a farmer and dealer in grain at the time of the sale, and it was the ordinarj- course of the grantor in such business to make such sales." On demurrer, the Court held that the defence was good. " Having regard to the terms of the Bill of Sale, there was an implied licence for the grantor to carry on his business, and to sell the wheat, and any bona fide purchaser from him would have a good title" (National. Mercantile Banl: v. Hanipf^on, 1880. 5 Q. B. D. 177; 49 L. J., Q. B. 480). A Bill of Sale by an innkeeper and horse- dealer, dated in 1879, assigned inter alia "an entire liorse called ' Fireaway,' a cob called ' Charley,' a pony called ' Xelly,' " and contained a covenant that " so long as the money should remain owing the grantor would not remove any of the said premises from the said messuage without the consent of the grantee, and provided that until default in payment the grantor should hold, make use of, and possess the premises thereby assigned." Subsequently, without the consent of the grantee, the grantor sold the three horses at a public auction, where the cob was purchased by the defendant. In an action of detinue, the County Court Judge found that it was the intention of the Bill of Sale that the grantor should be at liberty to carry on his trade. On this finding, and on the assumption that the sale was in the ordinary course of business, and was not a breach of the covenant, the Court (Grove and Lindlej^, JJ.) held that the case fell within the authoritv of Xational Mercantile Bank v. Hampson, supra (Walker v. Clay, 1880, 49 L. J., C. P. 560). The grantee of an unregistered Bill of Sale brought an action for conversion against persons who had purchased part of the stock-in-trade compi-ised in the (y) See Note on .\fter-ac'|iiircd Pro|)eit.v, poff. 74 BILLS OF SALE IN SECUKTI'V FOV. MONEY. Bill of Sale. The jury found that the grantor " sold the goods fraudulently, and not in the ordinary course of his business ; but the defendants did not know this, and bought the goods bond fide." Judgment was entered for the plaintiff, and was upheld on appeal. Lord Coleridge, C. J., observed: ''It is said that a Bill of Sale of stock-in-trade, when the trade is to be carried on, must always be subject to an implied condition that the grantor shall have liberty to deal with the goods for the purposes of the business ; and that, if that were not so, it would stop the business altogether, which would be contrary to the intention of the parties. But, in expressing that condition, the law engrafts upon it this limitation: that the business must be carried on hond fide, and the disposition of the goods must be honil fide, and in the ordinary course of business. . . . Here the defendants have bought property of another which the vendor had no right to sell, because he did not sell it in the only way in which he could sell: viz., in the ordinary course of business" {'I'milnr v. McKecnid, 1880, 5 C. P. D. 358; 49 L. J., C. P. 563). When the grantee sued a purchaser from the grantor for the conversion of stock-in-trade comprised in the Bill of Sale, and the Judge told the jury to find for the plaintiff if they thought that tlie sale to the defendant was not a sale in the ordinary course of business, it was held that this was a proper direction {Payne v. Fern, 1881, 6 Q. B. D. 620). So, the grantee of a Bill of Sale was held to be entitled to recover the goods from a person with whom they had been pledged for a temporary advance, such a pledge (by a retail jeweller) not being within the ordinary course of dealing in his trade" and business {Joseph r. Wehh, 1884, 1 C. & E. 262). The grantee was also held entitled to recover the proceeds of a sale from the landlord of the grantor in the following circumstances : — Tlie grantor, a farmer, covenanted in the Bill of Sale "not to remove or jjermit or suffer to be removed the said stock, goods, chattels, and effects, or any of them," from the premises without the previous consent in writing of the grantee. The landlord, with the assent of the grantor, who was then insolvent, sold certain wheat for the purpose of paying himself the incoming valuation. Field, J., held that the sale was not in the ordinary course of business, and therefore was not within the implied licence contained in the Bill of Sale. " The licence is a sort of trust. You assume that as tenant he will use his goods for a pro])er purpose. ■ The discretion of the man of business in carrying on his business is implied, and Stevens had no idea that he was cariying on his business by assenting to this sale" {Musgravc v. Stevens and Bmdbnrn, 1883, 1 C. & E. 3*8). If the grantor sold, otherwise than in the ordinary course of business, property comprised in a Bill of Sale, he, by the act of selling, represented himself to be the absolute owner, even though he said notliing as to the ownership of the goods or the existence of the Bill of Sale; and, unless he could prove that he had the mortgagee's authority to sell, he was liable for obtaining money by false pretences from the purchaser, who ])iiid for the property in the belief that the grantor had a title to sell {Reg. v. Sampson, 1885, 52 L. T. 772; not following Reg. v. Hazlewood, 1883, 48 J. P.'lSl). When the grantor was allowed to carry on his business, the grantee did not act^uirc any right to book debts representing the proceeds of goods sold in the ordinary course of business, unless the Bill of Sale contained an e.\{)ress assigrnnent of book debts {Braiini v. Fryer, 1882, 46 L. T. ()36). II' ;i iJill of Sale was in tlie form of a licence to seize, tlie grantor rel;iined l)oth the legal and equitable ownership, and could therefore confer a good title; on a ]iurchaser at any time before actual seizure. If -.i HiW of Sale passed oidy an ofiuitablo title, as in' tlie case of a contract to assign afti-r- ac(iuir(Ml properly, tin; iiill lA' Sale was liable Id be postponed to the riglii of a [jcrson who acipiircd I'roin I lie grantor a legiil title to such all er-ai-ipiired SUCCESSIVE BILLS OF SALE BEFORE 1878. 75 property for value and without notice of the grantee's equitable interest (Hallas V. Rohinxon, 1885, 15 Q. B. D. 288 ; cf. Joseph v. Lyons, 1884, 15 g. B. D. 280). Note C. — Successive Bills of S.\m-; Befokk 1878. Tlie Act of 1878 enacts that " in case two or more Bills of Sale are jjjiven, comprising:: in whole or in part any of the same chattels, they shall liave priority in the order of date of their registration respectively as regards such chattels" (Section 10). Previous to this enactment, the contest for priority had resulted in some anomalies. The rule as to priority of successive Bills of Sale inter se, and apart from any question of execution or bankruptcy, was comparatively simple. Kegistration had no bearing on the question. If both Bills of Sale were unregistered, the earlier in date had priority, and the second could not gain ])riority by taking possession {Meur r. Jacohx, 1875, L. E., 7 H. L. 481). If l)0th Bills of Sale were registered, the earlier in date had priority ; and if the second Bill of Sale holder seized and sold the goods, having no notice of the first Bill of Sale before seizure, the first mortgagee was still entitled to the first charge on the proceeds {Ex parte Allen, re Middleton, 1870, L. R., 11 Eq. 209). If the first Bill of Sale was not registered, the holder of it had a good cause of action against the holder of a second registered Bill of Sale who took possession and sold ; and his cause of action was not taken away by the bankruptcy of the mortgagor after the seizure but before the sale {Payne v. Cales, 1878, 38 L. T. 355). In these cases the first mortgagee had the legal title ; but the same rule was applied where the mortgages were in the form of licences to seize ; a sul.sequent mortgagee could not gain priority by taking possession — at all events, if he had express notice of the earlier secui-ity {Reeve r. Whitmore, 1863, 33 L. J., Ch. 63). In one case, indeed, even in the case of execution, the holder of a later Bill of Sale might have priority over an earlier Bill of Sale, botli being duly registered : viz., when the later in date was one of a series of Bills of Sale, so that the property in the goods was in the grantee thereof when the Bill of Sale to the other party was given {Hunter v. Turner, 1875, 32 L. T. 556). This device for evading registration under the Act of 1854 was rendered impossible by Section 9 of the Act of 1878. The cases on the question of priority in the event of bankruptcy or execution are not entirely satisfactory. There was a great difference in the point of view from which successive mortgages were regarded in Courts of Common Law and in Courts of Equity. Some of the Common Law cases were, it is true, decided on interpleader issues, where the Courts did not consider themselves bound by every technical Common Law rule. Nevertheless, it was not till shortly before The .ludicature Act, 1873, that the Common Law Courts took account of equitable estates {Rusden v. Pope, 1868, L. K., 3 Ex. 269 ; see also Duncan c. Cat'hin, 1875, L. R., 10 C. P. 554). Consequenth' the grantor's equity of redemption, if i-ecognised, Avas a mere shadow ; and no attempt was made to adjust the interests of successive mortgagees on the principles administered in Courts of Equity. A second mortgage, it was said, '' did not operate at all, except by way of estoppel, or as creating some equitable interest in the possible resulting surplus of the proceeds " {Xicholsov v. Cooper, infra). In bankruptcy, the law of mortgages was more freely applied ; but the jiractical result was the same. In general, if a prior mortgage was got out of the way, a second registered mortgage was accelerated, without any advantage to tlie creditors. 76 BILLS OF SALE IN SECURITY FOR MONEY. In Gachdeyi v. Barrow (185-1, 9 Ex. 514; 23 L. J., Ex. 134), an interpleader issue, the plaintiff proved a valid Bill of Sale to him of the goods ; the execution creditor tendered evidence that a prior Bill of Sale of the same goods had been given to a third party, and this evidence was held admissible as tending to defeat the plaintiff's title. Parke, B., observed: "Assuming that the prior Bill of Sale was valid, the execution debtor had no power to convey the goods to the plaintiff, nor had the plaintiff any right to make the claim." This case preceded The Bills of Sale Act, 1854. " In EdurircU r. EnglisJi (1857, 26 L. J.. Q. B. 193), an interijjeader issue, the plaintiff claimed under a bona fide Bill of Sale duly registered, and the execution creditor was not allowed to set up a prior Bill of Sale to a third party, which was also bo7id fide, but void against the execution creditor for want of due registration. " The property," said Erie, J., " is clearly out of the debtor, and I thiidv the first Bill of Sale cannot be used to make the second assignment invalid." The Court distinguished Gadsden v. Barrow, supra, on the ground that there the lirst Bill of Sale was good in oinnihus. But it would seem that if the Court had followed the equitable doctrine of mortgages, the decision would have been otherwise. The plaintiff having proved his Bill of Sale, it would have been open to the execution creditor to say : " This Bill of Sale is only a second mortgage. There is a prior mortgage, which the Act makes void as against me ; and I am entitled to have my claim satisfied to the extent of the first mortgage debt." This is the gist of the criticism of Jessel, M. R., nominally directed against the decision in Richards v. James, infra. In Nicholson v. Cooper (1858, 27 L. J., Ex. 393), A. had assigned goods to B. by a Bill of Sale which was not registered ; by a subsequent Bill of Sale he assigned the same goods to C. A. became bankrupt ; and liis assignees brought trover against B., who had seized and sold the goods after notice of an act of bankruptcy. The Court held tliat B. could not set up against the assignees the registered Bill of Sale to C, (1) because C. never had any title to the goods, and (2) because a defendant cannot avail himself of the right of a third person, except by the authority of such person. The latter ground of decision is incontestable ; but it would seem that C, if he had insisted on it, had as good a title against the assignees as the holder of the second Bill of Sale in Edicards v. English had against the execution creditor (see also Ex parte Leman, infra). The Court seem to have thought, however, that C.'s claim would have been defeated by tlic reiiuted ownershi]* of the grantor, the goods having been in the order and disposition of the bankrupt by the consent of the first mortgagee. In Ricliards v. James (1867, L. E., 2 Q. B. 285), the execution debtor had made a Bill of Sale of goods to B., which was never registei-ed, and a second Bill of Sale of the same goods to C, which was registered. Execution having issued, the goods were claimed both by B. and C. ; and an order was made barring the execution creditor entirely. On a special case, stated by direction of the Court to determine the rights of B. and C, the Court ordered that the proceeds of sale of the goods should be applied, (1) in satisfying the claim of C, and (2) in or towards payment of the claim of B. (See the adverse comments of Jessel, M. R., in E.c parte Fourdrinicr, re Artistic Colour Printing Co., 1882, 21 Ch. D. 510; and see also Ea' parte Blaiherg, re Toonier, 1883, 23 Ch. D. 254, both noted under Section 8 of the Act of 1878, post). But it would seem, as above suggested, that the false step, if it was one, was taken in Edwards v. English, supra, upon which the decision in Richards v. James follows inevitably. It should be added that H. licld also a third Bill of Sale, later in date than C.'s, which was registercil in due time ; and this probably explains why the execution creditor did not contest 15. 's claim to the surplus. But ]].'s claim, as presented to the Court, rested on his unregistered Bill. SUC'CESSIVK HILLS OF SALE BEFORE 1878. // The decision iu Richard.^ v. Jtniies, aiipra, was followed in Beghie v. Fenwick (1871, 24 L. T. 58), where the first mortgaj^e was unrecfistered, and the holder of the second mortgajje had not only registered it but had also taken possession of the goods before the bankruptcy of the mortgagor. Malins, V. C, held that as the second mortgagee had thus prevented them passing to the assignees, and the first had done nothing to prevent them passing, the second was entitled to the goods. In Hunter v. Turner (1875, 32 L. T. 556), the facts closely resembled those in Richards r. James, supra, except that B. claimed the goods under his registered Bill of Sale. The execution debtor had given a series of Bills of Sale To B., which were not registered ; after giving the third of these, he gave a Bill of Sale to C, which was duly registered on 1st April; on the same date, he gave B. a fourth Bill of Sale, which was duly registered on 15th April. On the 14th April the goods were seized in execution at the suit of C. But the Court held that B. was entitled to the first claim on the proceeds of the goods, for the property in the goods was in B. when C. obtained his Bill of Sale, and the execution did not invalidate B.'s series of Bills, the last of which was registered. In Ex parte Leman, re Barraud (1876, 4 Ch. D. 28; affirming S. C, suh no)ii. Ex parte Cochrane, 'S Ch. D. 324), the first Bill of Sale was unregistered, but the grantee had taken possession of some of the goods before the liquidation of the grantor; and the holder of a second registered Bill of Sale was held to be entitled, as against the trustee in liquidation, to such of the chattels as had not been seized by the first mortgagee. And this was followed in Ex parte Payne, re Cross (1879, 11 Ch. D. 539), where the first mortgagee had not seized at all ; but it was held that the trustee in bankruptcy was not entitled to stand in the place of the first mortgagee, whose Bill of Sale was void for non-registration, and thus acquire priority over the grantee under a valid Bill of Sale subsequently executed by the grantor. For the Act did not assign the mortgage title to the trustee for the benefit of the general creditors. It simply avoided the unregistered Bill of Sale, and gave the property in the chattels to the trustee subject to any incumbrance which was valid in bankruptcy (per Cotton, L. J., ibid). For a similar reason, under the Act of 1878, where an execution had been swept away by the subsequent bankrttptcy of the execution debtor, the trustee in bankruptcy was not entitled to stand in the place of the execution creditor, as against the holder of an unregistered Bill of Sale who had taken possession after the execution but before the filing of the petition for liquidation (Ex parte Biaihery, re Toomcr, 1883, 23 Ch. D. 254). In Payne v. Cales (1878, 38 L. T. 355) the first Bill of Sale, to B., was not registered; the second Bill of Sale, to C, was registered. C. took possession, and advertised the property for sale. After the seizure, but before sale, the grantor filed a petition in liquidation, and a trustee was appointed. C. sold the goods, and, after satisfying his own claim, jiaid over the balance to the trustee. In an action for illegal seizure and sale, it was held that C.'s taking ])ossession was illegal as against B., that the cause of action was not taken away l^y the bankruptcy, and that B. was entitled to recover from C. the amount owing to him by the grantor. This may seem a hard case, since C, b)- taking possession, had saved the goods from being in the order and disjjosition of the grantor, and it is not easy to distinguish the case from Begbie v. Fenuich\ supra. Still, non constat that B. might not himself have taken possession in time ; and the Court (Grove and Lopes, JJ.) seem to have entertained no douljt that the rights of the ])arties were to be determined as tiiey stood before and irrespective of the bankruptcy. CHAPTEB VI SPECIAL CLASSES OF PROPERTY. The object of this Chapter is to bring- together some notes on topics connected with the definition of Personal Chattels in Section 4 of the Act of 1878. The subjects to be considered are (1) Growing Crops, in the sense in which the term is applied in ordinary farming operations ; (2) Fixtures, including trade machiner}* as defined in Section 5 ; and (8) Choses in Action. A Note is also appended on Future or After-acquired Property, and the different modes by which a security could be created over such propei't}- before the passing of the Act of 1882. I. — Growinc4 Crops. Crops, when cut or severed from the land, are personal chattels for all purposes. As such they pass to the trustee in bankruptcy of a mortgagor in possession of land as against the mortgagee. But crops, while growing, though for some purposes they are treated at Common Law as personal chattels, are not so for all purposes. They pass with the land in a conveyance or mortgage, unless expressly excepted. On the bankruptcy of a mortgagor in possession, the mortgagee of the land will be entitled to them as against the trustee in bankruptcy : thus, an injunction may be granted to restrain the trustee from cutting crops and from removing crops cut by him after the mortgagee has lawfully demanded possession (a). Second mortgagees, who have obtained possession of the land, have been held entitled to growing crops as against the timstee in bankruptcy of the mortgagor (h). On the other hand, growing crops go to the executor as personal chattels, and not to the heir or remaindei'inan as parcel of the land, "it being for the benefit of the kingdom, which is interested in the produce of corn iiiid otlier grain, and will not suffer them to go to the heir " (c). Growing crops may be taken in execution under a writ of fi. fa., except in cases where the tenant is i-estrained by covenant fi-om removing them from the premises (d). The Sheriff, however, must (a) Bagnall v. Villiir, 1879, 12 Ch. D. 812. (h) Ex parte Official Jiprfiuer, rp Gordon, 1889, 01 L. T. 299. (<•) Laivfoii v. Lau'foii, \7i-'S, '.i Atk. 13. (d) .56 Geo. III. c. 50; Eraiis i: Tloho-ts, 182G, .l 15. .t C. 829. GROWIXCi CROPS. 79 sell the crops standing ; he cannot recover, as costs of the execution, expenses incurred in cutting" and making them (e). It has been doubted whether the Sheriff can seize and sell, under the name of growing- crops, seed sown or planted in the ground but not yet appearing above the surface. " A growing crop one Avould suppose to mean something appearing above the ground, and to be gTowing, and not the seed dying before it becomes the new plant " (/). Growing crops may be seized under a distress for rent ; and they may be sold under the distress, but only " when cut, gathered, cured, and made, and not before " (g). A sale under distress of crops in a growing state is void, and does not affect the property ; but it does not make the distress illegal, and the tenant's only cause of action is for damages, if any, caused by the irregularity of the sale (h). Growing crops may be sold and assigned separately from any interest in the land. A contract for the sale of growing crops is a contract for the sale of goods, wares, and merchandise within the i-epealed Section 17 of the Statute of Frauds, and now of "goods" within Section 4 of The Sale of Goods Act, 1898, and not a contract concerning an interest in land within Section 4 of the Statute of Frauds (i). As to the assignment of future crops by Bills of Sale see Note on Future oi* After-acquired Property (post, pp. 91 et seq.), and Note (c) to Section 6 of the Act of 1882, post. A tenant who has granted a Bill of Sale over growing crops cannot derogate from his grant by a surrender of his tenancy ; but if the landlord has distrained before the surrender, the Bill of Sale holder can only claim the crops subject to the landlord's rights under the distress (A-). The Bills of Sale Act. 1854. which defined personal chattels as goods and other articles capable of complete transfer by delivery, was construed not to include growing crops : that is to say, crops actually growing when the contest arose between a claimant under a mortgage or Bill of Sale and an execution creditor or trustee in bankruptcy. In this sense a Bill of Sale of growing crops did not require registration under the Act (/). But if, after the Bill of Sale had been g'iven, the crojjs were severed, they became personal chattels . and if the grantee had not registered the Bill of Sale the {e) Ex parte Conder, ri- Woodham, 1887, 20 Q. B. D. 40. (/) Pollock, C. B., in Bagghair r. Fariiitirorfli, 186f), 2 L. T., X. S. 390. (g) 11 Geo. II. c. 1!), s. 8; Piggotf v. Birfles, 1830, 1 M. & W. 441. (A) Oiren r. Leqh, 1820,3 B. & A. 470; Proiidloce v. Ticemloie, 1833, 1 C. & M. .320; Eofferx f. Parker, 1856, 25 L. J., C. P. 220. (*) Eimn* c. Robert g, 1820, .5 B. & C. 829; Jojieg v. Flint, 1839, 10 A. & E. 753. Ik) Clements r. ^rattheica, ]8a3, 11 Q. B. D. 808. (/I BraiifoM c. (iriffithf. 1870, 2 C. P. D. 212; uffiriuing same case, 1 C. P. D. 3J9; ilisapprovintf Sheridan r. McCartney, 1800, 11 Ir. C li. Rep. 506; Ex parte Payne, re Crosi, 1879, 11 Cli. n. 539. 80 SPECIAL CLASSES OF PEOPEETY. severed crops remaining in the possession of the grantor passed to his trustee in bankruptcy. James, L. J., also expressed the opinion that if an assignment had been made of growing crops if and when they should be severed, it would have been void under the Act if unregistered (in). IT. — Fixtures, including Trade Machineey. " It is necessary, in order to constitute a fixtiire, that the article in question should be let into or united to the land, or to some substance previously connected with the land. It is not enough that it has been laid upon the land, and brought into contact with it ; the definition requires something more than juxtaposition : as that the soil shall have been displaced for the purpose of receiving the article, or that the chattel should be cemented or otherwise fastened to some fabric previously attached to the ground " (n). In determining whether an article is a chattel or a fixture, it is important to consider (1) the mode of annexation to the soil or fabric, whether it can be easily removed, integre, salve, et commode, without injury to itself or the fabric of the building ; and (2) whether it was for the permanent and substantial improvement of the freehold, or merely for a temporary purpose, or the more complete enjoyment and use of it as a chattel (o). " Perhaps the true rule is that articles not otherwise attached to the land than hj their own weight are not to be considei*ed as part of the land, unless the circumstances are such as to show that they were intended to be part of the land, the onus of showing that they were so intended lying on those who assert that they have ceased to be chattels ; and that, on the contrary, an article which is afiixed to the land, even slightly, is to be con- sidered part of the land, unless the circumstances are such as to show that it was intended nil along to continue a chattel, the onus lying on those who contend that it is a chattel." {].))■ The following authorities may be referred to as illustrating the distinction between fixtures and movable chattels : — Doors, windows, rings, keys, &c., are fixtures, and pass by a conveyance of the house (q). A srranarv oi- wooden hiiildiiio-. restino- by its own Aveisrht on ^ '■ . . . ' staddles or stone pillars let into the earth, is a chattel and not a fixture, though the staddles themselves are fixtures {r). So, a barn, {m) Ex parte Nafinnal Mercantile Bank, re FhiUip», 1880, 16 Ch. D. 104. (n) "Amos and Ferarrt on Fixtures," Part I., f'hnp. i., ritprl in Tuner r. Cameron, 1870, L. R., r, Q. B. m;. (o) Parke, R., in Jf,'/hiirrll r. Eaftu-nod, 1851. 2(» L. .1., K\. 151. (/)) Per Curiam, ill Jfol/nutl r. J/o/lf/you, 1H72, li. H., 7 V. V. :!L'S. ((/) Lifrjrd'x Cane, 1(;()5, U Coke .50.' (»•) n'illHhear r. Collrell, lS5:i, 22 L. .1., Q. li. 177. FIXTURES, INCLUDING TRADE MACHINERY. 81 erected on blocks of wood, but not affixed to or near the ground (s) ; a barn, or a windmill, resting* by its niei'e weight on a brick foundation (f), and a windmill, constructed on cross-trees laid upon brick pillars, but not attached thereto (u), are mere chattels. A railway or tramway constructed of rails bolted or nailed to sleepers embedded in the soil or in prepared ballast is a fixture (ic). A hay cutter and a corn crasher affixed to a building by screw- bolts (cv), and a threshing machine fixed by bolts and screws to posts let into the earth (y), are fixtures, and pass with the land. A steam engine and boiler affixed to a building by screw-bolts is a fixture (z) ; and, generally, all machineiy which is annexed to the floor, ceilings, or sides of a mill in a quasi-permanent manner by' means of bolts and screws, is of the nature of fixtures ; it makes no diiference that the object of the annexation is merely to ste.ady the machines when in use, and that they could be removed without injury to them or the freehold, nor that the machines are in the' nature of trade fixtures removable as between landlord and tenant (a). Looms fastened by nails driven into beams or plugs in the floor are fixtures, though easily removable without injury to the free- hold (6). But looms which are not othei'wise fixed than by weight, their legs resting in cups or sockets in the floor, are not fixtures (c). A hydraulic press used for convenience in a factory, but not essential to the purposes of the factory, may be a chattel, though mortared to the floor (d). Things which are themselves movable, but which are essential for use along with a fixed machine, or belong to a fixed machine as an essential part of it, are regarded as constructive fixtures, and pass without special mention in an assignment of trade machinery. Thus an anvil not fixed, but essential to a fixed steam hammer, is a fixture (e). Driving belts fixed to wheels or drums, but capable of being removed at pleasure when the machinei'y is thi'own out of gear, are necessary parts of the machinery (/). Iron rolls, which have been fitted into an iron rolling machine and used, are fixtures, but not so duplicate M Culling V. Tuffnal, 1694, Bull., N. P. 34. (/) Rex V. Oflei/, ls:jO, 1 B. i Ad. IGl ; Waiisbroiigh r. Mafon, 1836, 4 A. & E. 884. (II) J{f.v c. Luiiilijiifliurpp, 179.5, C, T. R. 377; rf. Flury r. Dfinii/, 1852, 21 L. J., Ex. 223. («•) riiriier r. Caiiieroii, 1870, L. R., 5 Q. B. 306; E.v pnrfi- Monre 4- Rohiiisoii's Bniilciiit/ Co., re Ariiiihii/i', IHSO, 14 ("li. 1). 379. (j') Walm^lci; v. Milne, lHr)9, 29 L. J., C. P. 97. (y) WiU>hear i: Cotfrcll, 18-)3, 22 L. J., Q. B. 177. (:) Mather v. Eraser, 1856, 25 L. J., Ch. 361 ; Walmflei/ i: Milne, 1859, 29 L. .T., C. P. 97 ; Climi" V. Wood, 1869, L. R., 4 Kx. 328; affirming- same ca.se, h- H.-, 3 Ex. 257. (a) Mather r. Fruiter, 18.56, 25 L. J., Ch. 361 ; Lom/hoffom c. Berry, 1869, L. R., 5 Q. B. 123; HoUnml r. Hudqfon, 1872, L. R., 7 C. P. 328. (6) linijd r. Shorroek, 1867. L. R., 5 Eq. 72; Holland r. Hodgmn, 1872, L. R., 7 C. P. 328 ((•) Jliitehiiixon r. Kai/, 1857, 23 Beav. 413. ((/) I'arnonii r. Hind,' \Hm, 14 W. R. 860. (e Mefrniudilan Connfiex Soeiefi/ v. liroirn, 1859, 26 Beav. 45i. (./■) Sheffield (fc Bnildiu;/ Society r. Harrimn, 1881, 15 Q. B. D. .358. G 82 SPECIAL CLASSES OF PROPEKTY. rolls not yet fitted (y). A millstone temporarily removed for the purpose of picking- it, although actually severed, remains parcel of the mill, and constructively annexed to the freehold (h). So, when a deed assigned looms on certain premises, " and other effects and thing's thereto belonging-, more particularly set forth in a schedule," articles used with the looms were held to pass b}- the deed, although the looms only were mentioned in the schedule (i). Guys used to steady a steam crane are regarded as part of the machine (k). Fixtures cannot be taken in execution under a fi. fa. against the owner of the inheritance, for they are not goods or chattels, but part of the freehold (I). But where the tenant of a limited estate in the land is the owner of fixtures, and has the right to remove them, they may be taken in execution under a judgment against him. " The law in favour of the creditor says that the Sheriff may. undei- a, fi. fa., exercise this right of removal " ('?«'). Fixtures, having lost the character of personal chattels, are not liable to be distrained for rent. For " a distress was anciently no more than a pledge in the hands of the lord ; and that cannot be a pledge which cannot be restored in statu quo to the owner" (n). Fixtures do not pass to the trustee in bankruptcy under the reputed ownership clause of the Bankruptcy Acts as against a mortgagee or assignee of the tenement or of the fixtures (o) : for " if the bankrupt has, by his mortgage, parted with his propei-ty in the fixtures, his subsequent possession of them is not a possession of them as goods and chattels, but as part of the house " (jo). Trade fixtures, which have been annexed to the freehold for the more convenient using of them, and not to im.prove the inhei-itance, and which are capable of being removed without any appreciable damag-e to the freehold, pass under a mortgage of the freehold to the mortgagee ; and hence a purchaser from the mortgagor cannot recover them in detinue from the mortgagee (q). The same principle applies to an equitable mortgage of freeholds or leaseholds by deposit of title deeds : the title of the mortgagee prevails over that of the assignee under a later Bill of Sale of machinery erected on the land at or after the date of tlie mortgage (r). So trade fixtures, even if (9) Ex parte Asthiry, re Hichardg, 1869, L. R., 4 Ch. 630. (h) lAford's Case, 1605, 11 Coke 50; Walmesleij v. Milne, 1859, 29 L. J., 0. P. 97. ((■) Cort V. Sagar, 1858, 27 L. J., Ex. 378. {k) Ex parte Moore and Rohinnon'f Banking Co., re Armitage, 1880, 14 Ch. D. 379. (/) Winn V. Inr/ilhi/, 1822, 5 B. & A. 025; Place v. Faqq, 1829, 4 Mann. & Ry. 277. (»() Parke, Ji.,' m'Hor^faU v. Ke;i, 1818, 17 L. .1., K.X. 266; Poo/c's OrtSP, 1704, 1 Salk. 368 ; see also Dumerr/nc v. Rumxeij, 1863, 33 L. .!., Ex. 88. (m) Turner 'v. Cameron, 1870, L. R., 5 Q. B. 306, citing " Gilbert on Distress," pp. 31, 38 ; Danhy v. Harrin, 1841, 1 Q. B. 895; but see Kellawell v. Easfinmd, 1850, 20 L. J., Ex. 154; Mather v. Fra»er, 1H.5G, 25 L. .7., Ch. 361. (o) Horn v. Baker, 1808, 9 East 215; E.v parte Wihon, re Bnf/ericorth, 1835, 4, D. & C. 14m ; Ex parte BareUu/, re ffairaw, 1855, 5 De G. M. & G. '103; Whitmore r. Em])8on, 1S57, 2C> L. .7., Ch. 361 ; Freshneii 1: WelU, 1857, 20 7j. .7., Ex. 129. (/>) liord (,'raiiworth, L. C, in Ex parte Barclay, unpra. (7) Ctiinie e. Wood, 1869, \j. K., 4 Ex. 328; atlirminf;, I^. R., 3 Ex. 257. (/•) Lont/ljottom n. Berri/, 1869, h. R., 5 Q. B. 123; Menx v. Jacobs, 1875, L. B., 7 II. 7i. LSI. FIXTURES, INCLUDING TRADE MACHINERY. 83 affixed after the mortgage b}' tlie mortgagor in possession occupying the premises for tlie purpose of his trade, pass to the mortgagee as against the assignee in bankruptcy of the mortgagor, unless the conti'ary intention is expressed (s). Under an equital)le mortgage, by deposit of a lease, unaccompanied by any memorandum, tenants' fixtures as attached to the freehold pass to the mortgagee (t). But a mortgage of leasehold premises, by assignment or by sub-demise, presumptively passes to the mortgagee during the mortgage term the right to the tenant's fixtures as fixtures only ; the mortgagee does not acquire the absolute property in them, nor any right to sever and sell them, unless the mortgage contains a power to sever and sell, or an absolute assignment of the fixtures. There must be a clear intention, to be gathered from the terms of the mortgage deed, to convey the absolute interest in the fixtures as well as the limited interest in the land (m). Fixtures annexed to the land, whether before or after the date of the mortgage, cannot be removed by the mortgagor as agai7ist the mortgagee (?r). But in some cases a third person, who has a right to i-emove them as against the moi'tgagor in possession, is entitled to remove them as against the mortgagee. Thus, if the mortgagor in possession lets the premises to a tenant who puts trade fixtures thereon, the tenant is entitled to remove such fixtures, not only as against his landlord, but also as against, the mortgagee : for the mortgagee is presumed to have acquiesced in the lease (.t). So, when the mortgagor remains in possession with an implied authority to deal with the premises for the purposes of his business, he may hire and fix on the premises trade fixtures under an agree- ment enabling the owners of the fixtures to remove them ; and the mortgagees in such a case have no better title to the fixtures than the mortgagor (y). The question whether a transfer of fixtures by way of sale or mortgage is within the Statute of Frauds is not free from difficulty. There is direct authority that a sale of tenant's fixtures to the landlord by the tenant, or a person deriving title from him, is neither a contract concerning an interest in land within Section 4 of the Statute of Frauds, nor a contract for the sale of goods, wares, and merchandise within the now repealed Section 17 (z). A sale or mortgage of tenant's fixtures by the tenant to a stranger was held («) Cullwick V. Suimlell, ISGfi, L. R., 3 Eq. 249; Ex parte Cotton, 1842, 2 M. D. & D. 725; Walmefley v. Milne, 1S59, 29 L. J., C. P. 97. For an indication of contrary intention see Waterfall r. Penwtone, 18.57, 20 L. J., Q. B. 100. it) Ea- parte Broadicoorl, 1841, 1 M. D. & D. 631 ; Ex parte Barclay, re Gairaii, 1855 ."■. De G. M. i G. 403; Williams r. Ei:aii!<, 185G, 23 Beav. 239. (h) Sovthpcrt Bankitxj Co. v. Thompson, 1887, 37 Ch. IJ. &4. (»•) Climie r. Wood, 'l8fi9, L. R., 4 Ex. 328. (j) fanderti r. Darin, 1SS.5, 1,5 Q. B. D. 218. hi) Cinnhfrlavd T'nion Baiikina Co. r. Mnryport Hematite Iron ^- Steel Co., 1S92, 1 Ch. 415- Giiinh n. Wood, 1S94, 1 Q. B. 713. {z) Jlalhn r. Hunder, lh34, 1 ('. M. A R. 200; Lee r. Ga.-lell, 1870, 1 Q. H. I). 700. 84 SPECIAL CLASSES OF PROPERTY. to operate as a transfer of the riglit of severance, and also to transfer such an interest in the chattels as to support trespass. It was observed by Parke, B., that the fixtures, though chattels, vpere not goods, wares, and merchandise within Section 17, and the language of the same learned Judge is hardly reconcilable with the supposition that the sale or mortgage fell within Section 4 (a). On the other hand, North, J., recently expressed the opinion that an equitable charge on fixed trade machinery was a contract concerning an interest in land within Section 4 ; perhaps, because of the fact that there the mortgagor was the owner of the inheritance (h). A contract for the sale of the building materials of a house, with a condition that all materials were to be taken down and cleared off the ground within two months, " after which date any materials then not cleared will be deemed a trespass and become forfeited, and the purchaser's right of access to the ground shall absolutely cease," was held by Chitty, J., to be a conti'act for the sale of an interest in or concerning land within Section 4 (c). Section 17 of the Statute of Frauds is repealed by The Sale of Goods Act, 1893, and replaced by Section 4 of the latter Act. By Section 62 the term " goods," as used in Section 4, includes " things attached to or forming part of the land which are agreed to be severed befoi-e sale or under the contract of sale." A lessee who has mortgaged tenant's fixtures cannot derogate fi^om his grant by a voluntary surrender of his lease, and the mort- gagee has a right to enter and sever the fixtures, notwithstanding the surrender, or to recover the value of the severed fixtures from the lessor who has severed them (d). But the Bill of Sale holder must remove the fixtures within a reasonable time after notice of the surrender. A lessee granted a Bill of Sale of a greenhouse which he had erected, and which, by agreement with the lessor, he had a right to remove. Afterwards the tenancy was surrendered by operation of law. Three weeks after notice of the surrender the Bill of Sale holder sold the greenhouse to the plaintiff, who claimed the right to enter and remove it. Denman, J., held that the right of removal had not been exercised within a reasonable time, and that the lessor was entitled to judgment. The decision was upheld by the Court of Appeal, the question of reasonable time being one of fact {e). By the Interpretation Section of The 13ills of Sale Act, 1854, personal chattels were defined as including fixtures and other articles capable of complete transfer by delivery. When an instrument assigned or created a charge on machinery oi' other fixtures apart fi-oiii the land, there could be no question that it was a Bill of Sale (a) Thompson v. Petfit, 1817, 10 L. .!., Q. B. 102 ; llonfall r. R'ri/, ISIH, 17 L. J., Kx. 200. ih) Jai-cis V. Jarch, 189a, 03 L. .1., Cli. 10. ((■) iMvcry V. I'urfrlt, 1888, 39 (!h. D. 508. (d) London ^ Wentmlnster Loan Co. v. Drake, 1859, 28 L. J., C. P. ;;97 ; cf. Saint v. PiUey, 1875, L. H., 10 Kx. 137. (r) MoxH V. Jamr'H, 1878, 33 L. T. 595; affirming 37 L. T. 715; 47 L. J., Q. B. 160, FIXTURES, INCLUDING TKADE MACHINEin'. 85 within the Act. When an interest in the hind passed, the question arose in each case whether or not the instrument operated as a Bill of Sale of fixtures : for if the fixtures passed, not as chattels but as part of the land, the instrument did not fall within the Act. The chief difficulty was felt in the case of leaseholds, where the lessee, who was absolute owner of the fixtures, had only a limited interest in the land. After some fluctuation of opinion, the cases fell at length into two clearly defined classes (/). 1. — Fixtures not separately Assigned or Charged, hvt Passivg hy a Conveyance of Land. — In Mather v. Fvaser there was a mortgage in fee of certain plots of land, mills or factories, dwelling-houses and hereditaments, " and all and singular the steam engine, steam boilers, mill gear, millwright work, and machinery," then or thereafter to be fixed to the premises, " together with all outhouses, edifices, fixtures, &c." The mortgagors became bankrupt. Wood, V. C, held that the mortgagees were entitled, as against the assignees in bankruptcy, to all machinery which was fixed to the freehold, for the deed, being a conveyance of the whole freehold, did not reqiiii'e registration as a Bill of Sale (^). In Boyd v. Shorrock a similar question arose in connection with a mortgage of leaseholds. The tenants for years of a mill were the owners of trade fixtures therein. By an indenture of mortgage they granted and assigned the plot of land, mill, fixed machinery, and hereditaments comprised in the lease, together with all and singular the looms and other machinery, whether fixed or movable, then standing and being or which at any time during the continuance of the security might be in and about the premises. The deed contained a separate power to seize and sell, Avhich. however, was limited to looms and machinery subsequently acquired, " and therefore not passing by the assignment." Wood, V. C, held that the deed did not require registration as to the fixed machinery (7^). In Holland v. Hodgson, there was a mortgage in fee of a worsted mill, '• with the warehouse, counting-house, engine-house, boiler- (/) These cases should be read in close connection with Sections 5 and 7 of the Act of 187S, post. They are still useful, in relation to trade machinery, as assisting to answer the question whether or not an instrument is to l)e deemed to lie a Bill of Sale. As regards fixtures generally, a new and retrospective rule of construction is laid down in Section 7 of the Act of 1878, which renders them no hmger applicabl?. Before that Act there was no distinction between fixed trade machinery and other fixtures. iff) Mather i: Fra^er, 185fi, 2.5 L. J., Ch. 3G1 ; ajjproved by Court of Appeal in re Yute», Batcheldor c. YaU-f, 1888, 38 fh. D. 112. (h) Bot/d r. iShorrovk, 18fi7, L. R., 5 Efj. 72. This case was disapproved by Malins, V. C, in Begbie v. Fenwick, pout ■ by the Court of Queen's Bench, in Ilairtreii r. Biifliii, pnsf, p. 87 ; and by the Lords Jvistices in Ex parte Dnr/llyh, pnxf, ji. 88. It appears however, to lie ')'■). lint i/mrrr wlielhcr this case was rightly ilccidcd. CHOSES IN ACTION. S9 plant, furniture, chattels, and other trade effects." By the hahendnm the leaseholds were to pass for the residue of the term (except certain days) and the goodwill absolutely ; but there was no habendum as to the premises lastly assigned. The mortgage ccmtained a power to sell " the said premises hereinbefore expressed to be hereby assigned and demised respectively, or any part or parts thereof, cither together or in pai'cels." The Court of Appeal held the deed void for non-registration, apparently on the ground that, though there were not two testatums, there was a separate assignment, and the question did not depend on the language of the power of sale (s). A mortgage, dated in 1874, assigned certain paper mills and other premises comprised in a lease for the residue of the term. By a separate operative part the mortgagor granted, sold, assigned, and set over to the mortgagees " all and all manner of mill-gear, millwright work, plant of millwright's shop, fixed and movable machinery and plant then being or which at any time thereafter during the subsistence of the security should be in and about the said mills, buildings, lands, and pi^emises." There was a power to sell " the said dwelling house, mills, cottages, and buildings, machinery, plant, and fixtures, and other the premises thereby assured, or any part thereof, either together or in parcels." This was held to be void for non-registration against a trustee under a deed executed by the mortgagor for the benefit of his creditors (J). III. — Choses IX Action. The legal definition of a chose in action is by no means clearly settled (?(). Familiar instances of choses in action are bonds, bills, notes, and policies of insurance. The most important class of choses in action for the present purpose includes book debts : that is, such debts arising in a business as in the ordinary course of business would be entered in a trader's books {w). Book debts are not personal chattels within the Acts ; and an absolute assignment of them does not require i-egistration under the Act of 1878, nor an assignment by way of security under the Act (.-i) K.C parte Brown, re Heed, 1878, 9 Ch. D. 389. (t) Tahi" r. Matfheini, 188C., .53 L. T. 872. The Court (Mathew and A. L. Smith, J.T.) appear to have thought that the deed fell within Ex parte Dat//i.ih, ante, as well as within Ex parte Bruwn, KHjira. The rule of constructiou laid down in Section 7 of the Act of 1878 does not seem to have l)een referred to. (») Anyone desirinsr to investijrate the nature of a chose in action may be recom- mended to consult some articles in the " Law Quarterly Review," vol. ix., \^. 311 ; vol. x., pp. 1 ti, 303 ; vol. xi., p. 6i. See also Fleet r. Perrimt, 181J9, L. R., 4 Q. B. 51)0, affirming same case, L. R., 3 Q. B. 536; Colonial Sank v. Wkinney, 188G, 11 App. Ca. 426, affirming same case, 30 Ch. D. 201. (k) Lord Eshcr, M. R., in QITicial Eeerirer r. Tallhy, 1880, Is Q. 1!. \). 25. 90 SPECIAL CLASSES OF PROPERTY. of 1882. But if they are included in the body of a Bill of Sale by way of security, the instrument would probably be void under the Act of 1882 as depai-ting- from the statutory form ; and if they are inserted in the schedule along- with personal chattels, it would seem that the instrument would be inoperative with respect to them (x). It is not necessary to the validity of an assignment of future book debts that it should be limited to book debts incurred in any particular business. An assignment by a trader, inter alia, of " all the book debts due and owing, or which might during the continuance of the security become due and owing, to the assignor," was held to be valid, and to pass the beneficial or equitable interest in a debt which came into existence after the assignment (y). An assignment, to seciire a loan, of a trader's premises, " together with the goodwill, and all the goods, wares, merchandise, stock-in- trade, fixtures, furniture, articles, effects, and things belonging to him in respect of his business," was construed not to include book debts which represented the pi'oceeds of articles assigned by the deed, and subsequently disposed of by the grantor in the ordinary course of business (z). A debt accruing due under an agreement for the hire of chattels is a chose in action : thus, when the letter of goods assigned all his rights under cei^tain hire-pui'chase agreements to secure a loan, authorising the lender, if default should be made in repayment, to exercise all the powers contained in the hiring agreements, the assignment Avas upheld against the trustee in bankruptcy in respect of instalments accruing due after the commencement of the bankruptcy (a). A share in a partnei"ship is a chose in action, and an assignment thereof does not require I'egistration under the Acts, although the assets of the partnership include the plant and stock-in-trade (b). A testator by his will disposed of cei'tain pictures as follows : — " I also give to my said wife the right of possession and enjoyment of all my pictures during her life (if she shall so desire), and subject as aforesaid I give and bequeath all my said pictures to and for my son H., for his own absolute use and benefit." The widow retained the pictui'es. The son made an assignment by Avay of security for an advance by wdiich he, as mortgagor and beneficial owner, assigned, inter alia, " all that the share and interest of me, the said H., under the will and codicil of my fatlui', and of nnd in the sums of money, hereditaments, and premises devised and bequeathed thereby (x) See note {r^) to Section !• of the Act of 1882, po!d, notwithstanding tlie liankruptcy of tlie covenantor FUTURE OR AFTER-ACQUIRED PROPERTY. 95 and the release of the debt before ho acquires an actual interest in the fund (Lyde V. Mijiin, 1833, 1 M. & K. fi83). It has been doubted whether Equitj- will enforce a covenant to assign all present and future personalty, since the effect would be to leave the covenantor without means of subsistence (in re D'Epiiieuil, 1882, 20 Ch. D. 758; in re Carter, Coomhe r. Carter, 1887, 3(5 Ch. D. 348; Tuilby v. Official Receiver, 1888, 13 App. Ca. 523; in re Turcan, 1888, 40 Ch. D. 5). Such a covenant may, however, be treated as divisible, and may be enforced against any property coming under particulars specified in the covenant, "although it may not have been in existence at the time of making tlie covenant, and although it niav not be assignable at law " {in re Turcan, supra). CHAPTEB VII. TITLE OF THE GRANTOR. There are only two provisions in the Bills of Sale Acts bearing upon the question of title to grant a Bill of Sale. Tlie first is a deduction from the enactment as to priority in Section 10 of the Act of 1878. The second is Section 5 of the Act of 1882, which enacts that (except in certain cases specified in Section 6) a. Bill of Sale in security for money shall be void, except as against the grantor, in respect of any chattels comprised in the schedule of which he was not the true owner at the time of the execution of the Bill of Sale. With these exceptions, the question of title to grant a Bill of Sale depends upon the general law. It is proposed in this Chapter to review the more important cases relating to this subject. Want of Title. — In general, no one but the owner, legal or equitable, of chattels, or of some limited interest therein, can pass the property or interest by a Bill of Sale. When a Bill of Sale ])urports to assign particular chattels, the real owner, or persons chiiming under him, may, in general, prevail over the title of the grantee by proving that the title to the goods was in him, and not in the grantor. Thus, where a person made a Bill of Sale of horses, and in an action of trover by the assignee the son of the assignor claimed them as his, and sevei^al witnesses swore that the son had purchased them, Coleridge, J., left to the jury the sole question whether the father or the son was the owner of the horses, observing that the evidence that the son had purchased them was not conclusive, for he might have purchased for his father (a). The fact that a writ of execution has issued against a debtor does not of itself deprive him of power to give a valid Bill of Sale. By The Sale of Goods Act, 1893, Section 26, it is enacted — (1) "A writ of fieri facias or other writ of execution against goods shall bind the property in the goods of the execution debtor as from the time when the writ is delivered to the Sheriff to be executed ; and, for the better manifestation of such time, it shall 1)0 the duty of the Sheriff", without fee, upon the receipt of any such (a) Uarh-r v. jUfoii, 18.5H, 1 F. & F. 192. AGENCY AND ESTOPPEL. 97 writ, to eiidoi'se upon the back thereof tlie hour, clay, month, and year when he received the same. Provided that no such writ shall prejudice the title to such goods acquired by any person in good faith and for valuable considei-ation, unless such person had, at the time when he acquired his title, notice that such writ or any other writ by virtue of which the goods of the execution debtor might be seized or attached had been delivered to and remained unexecuted in the hands of the Sheriff. (2) " In this Section the term ' Sheriff ' includes any officer charged with the cnfoi'cenient of a writ of execution" (6). Agt'ucij and Estoppel. — At Common Law a Bill of Sale of chattels by a person who is not the owner may be effectual in passing the property when there is evidence of knowledge or conduct amounting to accjuiescence on the part of the owner in the granting of the Bill of Sale. Such cases have been put on the ground of estoppel or agency (c)- The owner of goods who stands by and voluntarily allows another to treat them as his own, whereby a third person is induced to buy them hond fide, cannot recover them from the vendee (fZ). " Whei'e in effect a declaration to all mankind is made that a person in possession of. goods is entitled to them for all purposes, and may at his pleasure either sell or borrow money on them, the trae owner C9,n enforce his claim subject only to the rights of those who have bought or lent money on the goods" (e). Thus, where the plaintiff, a widow, Avho was not executrix or administratrix of her husband, assented to the sale by B. to the defendant of furniture which had formerly belonged to her husband, the Court held, in an action to recover the value of the goods, (1) that the property was not in her, but in the representative of her late husband; and (2) that if she had had a good title, she would have been estopped by her assent to the sale, B. having virtually been constituted her agent for the purpose of the sale (/). So, where the owner of goods stood by while a third person made a Bill of Sale of the goods as a security for money advanced to him, in reality as the agent of the owner, it was held as against an execution creditor of the owner that the property in the goods passed by the Bill of Sale {g). For, if an agent appointed by parol executes a deed in pursuance of the agency, the instrument binds (h) This Section reproduces, with slight alterations, Section 15 of The Statute of Frauds (29 Car. II. c. 3), and Section 1 of The Mercantile Law Amendment Act (19 & 20 Vict. c. 97). (c) Now, as regards Bills of Sale in security for money, the principle of these cases is excluded or restricted l)y Section 5 of the Act of 1882, j'off. (d) Grpijij V. WfU*, 1839, 10 A. & B. 90 ; following Pickard v. Sear», 1837, 6 A. & E. -169 ; sec Freeman v. Cooke, 1818, 2 Kx. 654; 18 L. J., Ex. 111. (e) Bramwell, L. J., in Meqgy v. Imperial DUcottnt Co., 1878, 3 Q. B. D. 711. (/) Waller v. Drakeford, i8o3, 22 L. J., Q. B. 271. ig) Loir V. M'Gill, 18G-1, 12 W. R. 826. H 98 TITLE OF THE GRANTOR. the principal so far as it is capable of operating othei'wise than as an instrument under seal : the deed is the deed of the agent, but the transfer is the act of the principal (h). The owner of chattels assigned them by Bill of Sale to one M., who, subsequently, with the knowledge and in the presence of the owner, assigned them by Bill of Sale to B. Both Bills of Sale were registered. The jury found that the second Bill of Sale was bond fide, and Bramwell, B., refused to put to them the question whether or not the first Bill of Sale was fraudulent. It was held that this was right, for it was immaterial whether there had been any previous Bill of Sale or not (i). But a mere estoppel which prevails against the owner himself, or anyone claiming through him, will not prevail against an execution creditor or other adverse claimant. The defendant Johnson sold furniture to one M., and subsequently issued execution against him on a judgment for the balance of the piTrchase price. It then appeared that one Hord, in whose cottage the furniture was, had assigned it by Bill of Sale, with M.'s knowledge, to the plaintiff Richards, who claimed the goods. On an interpleader issue the jury found that there had been no "transfer" from M. to Hord ; and the Court held that though M. would be estopped from denying that the property was in Hord, his execution creditor was not estopped (k). A trustee in liquidation, as an act of indulgence towards the debtor, allowed him to remain in possession of his household furniture for some years ; and at last the debtor granted a Bill of Sale over it, together with other furniture subsequently acquii-ed, to secure a large advance. The grantees having taken possession of the furniture, the debtor presented a second petition for liquidation. The furniture having been sold, it was held that the trustee in the first liquidation was entitled to the proceeds as against the grantees of the Bill of Sale (1). "If the trustee had known that the insolvent was holding himself out as the owner of the furniture, and endeavouring to raise money upon it, and ha,d with that knowledge abstained from interfering or giving notice of his title so as to prevent the persons who were negotiating from being imposed upon, he would have been pi^ecluded from setting up his title against the Bill of Sale" (vi). Knowledge of the dealing by (k) Hunter v. Parker, 1840, 7 M. & W. 322. (i) Moretvood v. Soiifh Yorkshire and Hirer Dun Co., 1858, 28 L. J., K.x. Ilk {k) Richard* v. Johnson, 1859, 28 L. J., Kx. 322. Martin, B., observed that there was certainly evidence of a gift from M. to .Ilord, which, hnd the jm-y so found, would have defeated the execution creditor. The ((uestiou of agency dous not .seem to have been raised. As to estoppel see also liichards c. Jenkins, 1887, 18 Q. Ji. Y>. 151. (/) Mriifiji V. Imperial Viscount Co., 1878, 3 Q. I!. I). 711. Qnarc wlictlior this is consistent, as i-ctrards't'he aftei'-acquired property, with Cnhm r. Milchrll, pusf, \>. loO. (ni) J'rr Lush, .J., ihid. VOIDABLE OR DEFEASIBLE INTERESTS. 99 the insolvent with the property left in his charge is essential to deprive the trustee of it (?«). An undischarg-ed bankrupt, to whom his creditors had given, by a resolution duly passed, a certain quantity of his furniture, assigned it by Bill of Sale to the plaintiff. Afterwards he sent it for sale to tlie defendant, an auctioneer, who sold it and paid the proceeds to the bankrupt. In an action for conver.sion it was held that the plaintiff was entitled to the furniture, for even if the banki'upt had not acquired the legal property, the raising of money on the furniture was an act of ownership Avhicb the creditors bad authoj-ised. and there was no jtis tertii which the defendant could set up (d). When the property of an insolvent has vested in a trustee in liquidation, and resolutions are passed under which the debtor is to carry on his business and pay a composition, the debtor has an implied authority to deal with the assets in the ordinary course of business, or for the purpose of raising money to carry on the business or to pay the composition ; and a secui'ity given bond fide for these purposes will be supported, but not an assignment to a surety as an indemnity against his liability for a future instalment (p). Yuidaljlc or Defeasible Interest. — A person who has by fraud induced another to sell or transfer to him the property in goods can give a good title to a pu^rchaser who has no notice of the fraud (q). So, a person who has acquired the property in goods by a ti-ansaction which is fi-audulent against creditors, under 13 Eliz. c. 5, may confer a good title on a bond fi^de pui^chaser (/•). But when the owner of chattels, for the purpose of defrauding his ci-editors, has delivered possession of them to anothei-, avIio, without his authoiity, gives a Bill of Sale to a third party, who is aware of the nature of the ti"ansaction, the owner may repudiate the fi'audulent purpose before it has been carried out, and recover his goods from the third party {s). Property acquired by a bankrupt subsequently to his bankruptcy does not, ipso facto, vest in the trustee ; if the trustee intervenes and claims it, it vests in him absolutely ; but, " until the trustee intervenes, all transactions by a bankrupt after his bankruptcy with any person dealing with him bo)id fide and for value in respect of his after-acquired propex'ty, whether with or without (n) Ex parte Ford, re Cauqhey, 1876, 1 Ch. D. 521. (o) Brown c. Hiclchihofham, 1881, .50 L. J., Q. B. 426. ( li) Ex part,' AUard, /v Shiioxn, 1881, 16 Ch. D. 505. If the property has not vested in a trustee, the foinpouniliiif; debtor may K've a Bill of Sale of chattel.s as indemnity to the surety, even though the resoUitions for coni])()sition are liable to be set aside {Ex parte Bnrrell, re liobiufoii, 1876, 1 Ch. D. .5.S7 ; Seymour r. CoiiIhoii, 1880, 5 Q. B. D. 359). (7) Cundy c. Lindsay, 1878, :i App. Ca. io'J. (r) 3Ioreirood r. Hoiith Yorkfhire 4'e. Co., ante, p. 98. (f) Taylor v. Bowers, 1876, I Q. B. D. 291 ; of The Conveyancing Act, 1881. A ])ower of attorney mav now be made irrevocable, either absolutely or for a fixed time (ConvcvancinK Act, 1882, Sections 8 an/) Machti/ V. Doiujkiy, 1872, L. R., M l<:(l. 10(i. (=) Kv pake liume'll, re BiiUerirurth, 1,S82, 19 Ch. U. 588. (a) Tarbaek v. 3Iarl)ur;/, 1705, 2 Vcrn. 510. FRAUD IN CONVEYANCES FOR VALUE. 113 Fraud ill f'onreyaiiref; for Value. — By Section o of tlie Statute 13 Eliz. c. ."). it is j)i'()vi(ie(l that the Act is not to extend to any estate or interest in o(),)(]s oi' ehattels, "which estate oi' interest is, or sliall be npon g-ood consideration and bo7id fide, lawfully conveyed t)V assured to any person or pei-sons. bodies p(jlitic or corporate, not having, at the time of such conveyance or assurance to them made, any manner of notice or knowledge of such covin, fraud, oi' collusion as is aforesaid; anything Ix'fore mentioned to the contrary hereof notwithstanding. If a conveyance is made lor valuable consideration, and is also hand fide, it is protected l)v this jn-oviso. But a conveyance, though made for a full valuable consideration, may be fraudulent if the consideration is taken in such a form as to defeat creditors (h), or if the person impeaching the transaction can show that it was not bond fide (r). In such cases the question for the jury is whether the transaction was a hand, fide one, or a trick or contrivance to defeat or defraud creditors (d). In the case of a conve3-ance for value, therefore, as distinguished from a voluntary conveyance, it is necessary to show the existence of an actual and express intent to defeat, hinder, or delay creditors (e). A past debt is a good consideration under the Statute ; and if a debtor gives a security to one of his creditors without intending any benefit for himself the gift is bond fide, although in bankruptcy it would amount to a fraudulent prefei'ence. " The meaning of the Statute is that the debtor must not retain a benefit for himself. It has no regard whatever to the question of pi-eference or priority amongst the creditors of the debtor" (/). ■' It makes no difference with i-egard to the Statute of Elizabeth whether the deed deals with the whole or only a part of the grantor's property. If the deed is bond fide — that is, if it is not a mere cloak for retaining a benefit to the grantor — it is a good deed under tlie Statute of Elizabeth " (g). Hence, a Bill of Sale of all the grantor's then existing and after-acquired property, by way of mortgage, to secure an existing debt and future advances is not necessarily void under the Statute (h). If a Bill of Sale is made for a good consideration and is other- wise bond fide, the mere intention to defeat the expected execution of a judgment creditor is not enough to make it fraudulent within {h) Boft V. Siiiifh, 1856, 21 Beav. 511. ((•) Hale c. Metropolitan Saloon Omuih,i» Co., 1859, 28 L. J., Ch. 777. ((/, Cadogan r. Kennett, 1770, Cowp. 432; Deueij i: Bayntnn, 1805, 6 East 257. (^1 Holme» c. Penney, l.Sofi, \i K. & .1. 90; Lloyd r. Affituod, 1859, 3 De G. >«t .T. C.U ; Ciiffard, L. J., in Freeman c. Pope, 1870, L. R., 5 Ch. 538. (/) Jessel, M. R., in Middleton i: Pollock, 1876, 2 Ch. D. 104. (g) Giffard, L. J., in Alton v. Harrison, 1869, L. R., 4 Ch. 622. (A) Ft parte GanuH, re Bamford, 1879, 12 Ch. D. 314. 114 FRAUD AGAINST CREDITORS. the Statute (^'). For, apart from the bankruptcy laws, a debtor may lawfully prefer, by assignment or payment, one creditor or particular creditors, if he does so in payment of their just demands, and not as a mere cloak to secure the property to himself (k). But if the grantee has notice that a writ under which the goods might be taken in execution has been delivered to the Sheriff, the goods are liable to seizure notwithstanding the assignment (/). If the transaction is an honest one, the Courts will not inquire into the adequacy of the consideration (m). Apart from the Bills of Sale Acts, it was competent for the grantee to show that a deed purporting to be voluntary was really given for valuable considera- tion («). But it should be observed that the necessary effect of such evidence would be to show that the consideration was not truly stated in the deed, and the grantee by leading such evidence would now bring himself within the statutory consequences of such a misstatement (o). In Ttvyne's Case (p), in the Star Chamber, a debtor gave a secret Bill of Sale of all his goods to a creditor in satisfaction of a pre- existing debt, pending an action brought by another creditor, who afterwards issued execution. The debtor was allowed to I'emain in possession, and to deal with the property as his own ; and the deed was held to be fraudulent and void. The gist of the decision was that though there was a true debt due to Twyne and a good con- sideration of the gift, yet it was not bond fide within the meaning of the proviso, " for no gift shall be deemed to be bond fide within the said proviso which is accompanied with any trust." But the Court also " resolved divers points," which are constantly alluded to in subsequent cases under the Act : — " 1st. That this gift had the signs and marks of fraud, because the gift is general, without exception of his apparel or anything of necessity : for it is commonly said ' quod dolus rersahir in yeneralibtis.' " 2nd. The donor continvied in possession, and used them as his {*) Wood V. Dixie, 1815, 7 Q. B. 892; Suffon v. Bath, 1S5S, 1 F. & T. 152; Hale v. Mefro- polifan Saloon Omnibus Co., 1859, 23 L. J., Cll. 777; Wcxihurij v. Clapp, 1864, 12 W. R. 511; Gladstone v. I'adiHck, 1871, L. R., G Ex. 203. A similar iiroposition holds good in regard to an assignment hy a debtor for the benefit of his creditors generally, this being " the most honest thing the party can do " (Bayley, J., in Pivhstock i\ Lyster, 1815, 3 M. & S. .'171 ; Iticheg V. Jioanx, 1810, 9 C. & P. 040). {k) Holhird V. Anderson, 1793, 5 T. R. 235 ; Benton v. TlinrnlnlJ, ISlfi, 7 Tnnnl,. 1 19 ; Goss r. Ncale, 1820, 5 Moore 19. (I) Sale of Goods Act, 1893, Section 20; ante, ]>. 00. (»«) Nunn v. Wilsmore, 1800, 8 T. R. 521. («) Townend v. Toker, 1800, L. R., 1 Ch. 440; Gale r. Jniliamson, 1S41, 8 M. .t W. 405; ef. Baijspoole r. Collins, 1871, L. R., Ch. 228. (o) .See Section 8 of the Act of 1878, and also Section 8 of the Act of 1882, post. Ajjart from the Acts, a niisstatoment of the consideration was cvidoiice of fraud, tliougli its force might be rebutted by showing tliat there was no intention to ilcfrnud, or to make tbc dcoil aviiilahlc as a security for more than the sum actually due {Hiddiil/ih r. (um/d, Iso.'i, 11 W. U. s,s2 ; AVmw i: Man-son, 1871, 21 L. T. 395). (;/) inol, 3 Coke 80; 1 Sm. L. C. 1. FRAUD TN CONVEYANCES FOR VALUE. H- own ; and by reason thereof lie traded and trafficked with others, and defrauded and deceived them. "3rd. It was made in secret; et dona clandustina sunt semper suspiciosa. " 4th. It was made pending the writ. " Sth. Here was a trust between the parties, for the donor possessed all, and used them as his proper goods, and fraud is alwa3-s apparelled and clad with a trust, and a trust is the cover of fraud. " 6th. The deed contains that the gift was made honestly, truly, and honn fide ; et clausulie inconsuetie semper inducunt suspicionemy In so far as the older cases turn on the grantor's continuance in possession, they are practically superseded by the Bills of Sale Acts. If a Bill of Sale is ^^nregistered it is void, either under Section 8 of the Act of 1878, or under Section 8 of the Act of 1882. If it is registered, other circumstances must appear to raise an inference of fraud. If a duly registered Bill of Sale is set up by the grantee, as executor de son tort, under a plea of plene administravit, the fact that possession was not taken until after the death of the grantor may perhaps be material as evidence of fraud (5). But in general the fact that the grantor continued in possession after the date of the Bill of Sale is now of no weight. The more important of the older cases are enumerated in the footnote (r). " It was at one time attempted to lay down rules that particular things were indelible badges of fraud, but in ti-uth every case must stand upon its own footing, and the Court or the jury must consider whether, having regard to all the circumstances, the transaction was a fair one, and intended to pass the j)roperty for a valuable consideration" (s). When goods ai-e purchased under an execution, the question maj' be whether the purchase-money was not really paid by the debtor himself, and the transfer to the ostensible purchaser merely colour- able (t). So when an auctioneer, knowing the debtor to be in very (q) Wehgter v. Blackman, 1861, 2 F. & F. 490. (r) The case which pfoes furthest to establish that an absolute conveyance of chattels without change of po.sses.sion is fraudulent in point of law in Edwards c. Hurhen (17SS, 2 T. R,. 5.S7: see also Paint c. Perchnrd, 1795, 1 Esp. 205; Wordall c. Smith, ISOS, 1 Camp. 333; Reed v. S/arfei<, 1S13, 5 Taunt. 212). But it was early recog'niseil that in conditional conveyances the grantor's continuance in possession, if consistent with the tenns of the deed, was not necessarily fraudulent, but only evidence that the transfer was colourable (Edwards v. Harben, supra; Reed r. irUlmntf, IKil, 7 Binrr. 577; Martindale v. Booth, 1S32, 3 B. & Ad. ■498). Actual possession, though not cxclusix^e, went far to confirm the good faith of the transaction (Benton r. Thornhill, 1810, 7 Taunt. 119; Jezeph v. Inf/ram, 1817, 1 Moore 189). In the case of a sale under execution, publicity in the transaction might rebut any inference of fraud from the fact of the debtor's continuance in possession (Kidd v. Rawliimon, 1800, 2 B. &P. 59; Watkiiis v. Birch, 1813, -i Taunt. 823; Latimer r. Bntfon, 1825, 1 B. & C. 652). Finally, it was clearly settled that the continuance in possession of the vendor, mortgagor, or execution debtor was no more than ;<;•(' «/((./<(c(> evidence of fraud, unless accompanied by other circumstances from which the jury could infer an intent to defeat or delay creditors {Eaxtwuod V. Broicii. Is25, R. & M. 312; Eceleiijh v. Pnr»sord, 18W, 2 M. & Rob. 539;' Benneli v. Daicfon, 1856, 18 V. B. 355 ; Maedona i: Siiine^, 1858, 8 Ir. C. L. Rep. 73). (») Kinderslev, V. C, in Hale r. MetropoUtati Saloon Omnihux Co., 1859, 28 L. J., Ch. 777. (/) Latimer r. BalMii, 1»25, 4 B. & C. G.52. 116 FRAUD AGATXST CREDITORS. emhaiTassed circiimstances, bought goods by Bill of Sale from the Shei'iff under a seci'et arrangement with the debtor that he should hold them for a time to enable the debtor to repurchase them, the sale was held to be colourable and fraudulent (n). But where the claimant had issued execution, and then himself bought the goods by Bill of Sale from the Sheriff, with the avowed object of securing the furniture for the use of the debtor's family against an execution issued by another creditor, it was held that the ti-ansaction was valid, provided there was a real debt and the assignment by the Sheriff was hoiid fide (»'). A Bill of Sale prepared by a solicitor, who acted for both parties, and who knew that the grantor was a person of bad repute, and probably a swindler, was set aside at the instance of a creditor as being improperly obtained, on the ground that the grantee was furnished with a knoAvledge of all the circumstances which were Avithin the knowledge of his confidential adviser (,r). If the gi-antee kuowingly takes and registers a Bill of Sale in a name by which the grantor is not usually known to his creditors, it may be inferred that the intentitm is to mislead, and therefore to defeat and delay creditors (v/). And " it is ([uite possible that, if a man was carrying on business in a name diff'erent from his real name, that might be an element of fraud to be taken into consideration quite independently of the requirements of the Bills of Sale Acts *' (z). The fact that the grantee of a Bill of Sale has not exercised his right of taking possession upon default in payment of the first instalment due under the Bill of Sale is of itself no evidence that the deed is fraudulent (a). FjvUlence of Fraud. — Declarations made by the grantor at the time of executing the Bill of Sale are admissible to prove the deed fraudulent, but not those made at another time {h). If a Bill of Sale purports to be given in consideration of an existing debt, the grantee may prove statements made by the grantor to him or in his presence as to the debt, for this is evidence of an account stated between them (r). But a mere admission of the debt made by the grantor before the date of the Bill oi' Sale is not admissible as against an execution creditor: for such an admission does not qualify or affect the grantor's title to the chattels assigned {d). (u) Graham r. Furber, 1851., l':f I>. .1.. ('. I'. .".1. (U-) Cookfon i: Fri/pr, 1858, 1 I''. & !•'. :i2S ; r/'. ITa/h-iiis r. lUrr/, . ]K\:f, 1 Tiiiiiit. Sl'3. (j) iSi/Jcr^ r. lioiiil, ISO], 7 Jur., xN. S. 102t'. (y) ('','iilnil Hank r. Hairkiiis, 1890, ()2 L. T. !)(1I. i'z) Hii'/friilluv, I;. .1., ill K.V jmrfr M'llaHh-, r<- ir,w,l, 1s7s, 10 Cli. U. -.VM. („) Wnn; r r. .I(„,U-, 1857, :< ('. li., N. S. .'lOit. {!,) l-hilliiix r. luniiff, 1705, 1 Ksp. :-(55. (r) )■„,■>//,■,/ r. Arnold, \HV1. Car. k M. V.U. {,/) (■„„/,■ r. Itrahain. Hl.s, H L. .1., Kx. Ill5. EVIDENCE OF FRAUD. 117 A testator Icit his house and business establishment to his wife for life, and after her death to his son. Shortly before his death lie lod<4-ed £200 in a bank as a provision for his daughter. After his death, the son, who carried on the business, borrowed £100 from his sistei-. As a security for this sum, he and his mother executed in favour of the sister a Bill of Sale, which recited the Avill of their father. The buna fides of the Bill of Sale being put in issue in an action against the Sheriff for not selling the goods under an execution against the son, the will was tendered in evidence, but rejected on the ground that it was not proved, and the juiy fonnd the Bill of Sale void. But the Irish Court of Queen's Bench held that the will ought to have been admitted in evidence as a, signed declaration by the former owner of the property, showing the honesty of the sister's claim and the natiu-e of the transaction (e). As the assignor of a deed which is fraudulent under the Statute is liable to criminal prosecution, he is not compellable to answer questions as to the true object of the transaction (/). On a charge against the gi-antor of a Bill of Sale of conspiring to defeat the cFaim of an execution creditor, the evidence of a solicitor whom he consulted for the purpose of the transaction is admissible : for the professional privilege only covers communications made in the legitimate coiu'se of professional employment, and not with a view to advice or assistance in the commission of a crime (ij). (e) O'Sidllfnii c. Bnr/ce, 1875, 9 Ir. Rep. C. L. 105. (f) MUhael /•. Gaij, 18.58, 1 F. & F. 409; see Tinpie'^ Ca>r, KiOl, 3 Coke 80 J. Ul) lii'. l:i(i. (/;) AV /,i,rfr Slii;„, ri- ll'i i,^/,n,/r,/, ls70, 1 Cli. D. .")(iO ; K.i- /„irtr Klli^, n- I'.llix, l.S7(), 2 Ch. D. 797. (-/) Ex iiiirle Ihtiiii, rr Parker, \HH\, 17 Oil. 1). 20; Kx pari, It i//.ii,»,i,, rr liiiri/, 1883, Tl Ch. D. 7h8. r.iil II liill of Sale CHiuiot now hu iimde l.n .sccinc I'liliiri' udvauccs of an iincorliiin iunouiit,, wliifli mny or imi.v not be iiukIc {('•) Uvtfon c. Crnffivell, 1852, 22 L. J., Q. B. 78 ; Harrif v. Sickeff, 1859, 28 L. J., Ex. 197; Mercer v. Peter»o)i, 1868, L. R., 3 Ex. 1(H ; Ex parte Izard, re Cook, 1874, L. R., 9 Ch. 271. W E-c pnrfe Fiskrr, re Ask, 1872, L. R., 7 Cli. (iSli ; E.v parti- littrtoti, re Tniistn/I, 1879, 13 Ch. D. 102. (t) Ex parte Bullaml, re Gihmii, 1878, 8 (')i. J). 230. (h) Ex parte Kiliier, re Barker, lh79, 13 Ch. D. 245. (ifl Ex parte J/aiixirell, re J/ciui la^irai/, 1883, 23 Ch. D. 620. (x) Ex parte E/lix, re Ellin, 1870, 2 Ch.' D. 797 ; Ex parte Learuyd, re EoiildK, 1878, 10 Ch. D. 3. 122 BANKRUPTCY bankruptcy petition presented within tliree months after the date of making, taking, paying, or suffering the same, be deemed fraudulent and void as against the trustee in the bankruptcy. " (2) This Section shall not affect the rights of any person making title in good faith and for valuable consideration through or under a creditor of the bankrupt." In oi"der to set aside a Bill of Sale as a fraudulent preference it must be shown (1) that at its date the grantor was unable to pay his debts as they became due from his own money ; .and (2) that it was given in favour of a creditor or of some person in trust for a creditor, with a view of giving such creditor a preference over the other ci'editors. The Section has no application except to transactions in favour of creditors in the strict sense of the term (y). Thus, if a debtor on the eve of bankruptcy voluntarily makes good trust money which he has misapplied, the payment cannot be set aside as a fraudulent preference (z). The Bill of Sale must have been made with a view of giving the creditor a preference over other creditors ; but it is not necessary that the intention to prefer should have been the sole view : it is enough if it was the substantial, effectual, or dominant view of the grantor (a). A debtor gave his wife a Bill of Sale over his fuimiture to secure advances previously made by her. Subsequently, on dis- covering that the Bill of Sale was void as comprising after-acquired property, he gave her a new Bill of Sale with the " solid intention " of making good the mistake. The Divisional Court (Vaughan Williams and Collins, JJ.) held that the second Bill of Sale was not a fraudiilent preference, though executed after calling a meeting of his creditors, which resulted in tlie bankruptcy : for the finding of fact as to his intention negatived the existence of a view to prefer (h). It is also necessary that the Bill of Sale should have been made voluntarily : for if it is made in pursuance of a previous contract to give the security, and under a consequent sense of obligation, there is no intention to prefer the creditor so as to bring the case within the Section (c). So, if the real motive of the bankrupt was to save himself from exposure or from a criminal prosecution, the payment or transfer is not a fraudulent preference (d). But mei-e pressure by the creditor, such as the threat of civil j^roceedings, will («) Ex parte Kelly Sr Co., re Smith, Fleminp Jf Co., LS79, 11 Ch. D. 306. iz) !'> parte Stnhlniix, re WUkiti»on, 188], 17 Cli. T>. .'58; Ex parte Taylor, re OoUhmid, 188C, 18 Q. B. D. 21).'). (ri) Ex parte Griffith, re Wilcnxon, 188:^, 23 Ch. I). 09 ; Ex parte Hilt, re Bird, 1883, 23 Ch. D. 09.J. {!,) Ex parte Tweerlale, re Twcedale, 1802, 2 Q. B. 210. (e) Bill* V. flmitli, 18(i5, 34 L. J., Q. H. 08; Ex parte Mackenzie, re Bint, 1873, •12 L. J., Bank. 25; Ex parte Jlodgkin, re Softley, 187.5, L. R., 20 Eq. 746. {d) Ex parte Taylor, re Goldsmid, 1886, 18 Q. B. D. 2'J5. VOIDABLP] SETTLEMENTS. 123 not support the transaction if the creditor knows thiit the grantor is about to become a bankrupt, for in such a case the threat can have no real influence over him (e). If the only result of recovering property alleged to have been disposed of by fraudulently preferring a creditor Avould be to benefit a secured creditor and not the creditors generally, the trustee ought not to take proceedings or lend his name for the purpose (/). A Bill of Sale, which would be void as a fraudulent preference, may also be treated as an act of bankruptcy (see Section 4, Sub-section 1 (c), of The Bankruptcy Act, 1883, ante, p. 118). Voidable Settlements. — Certain Bills of Sale are liable to be set aside in the bankruptcy of the grantor under Section 47 of The Bankruptcy Act, 1883. This provision applies principally to Absolute Bills of Sale other than documents accompanying sales (see ante, p. 20). By Section 47 it is enacted: — " (1) Any settlement of property not being a settlement made before and in consideration of marriage, or made in favour of a purchaser or incumbrancer in good faith and for valuable con- sideration, or a settlement made on or for the wife or children of the settlor of property which has accrued to the settlor after marriage in right of his wife, shall, if the settlor becomes bankrupt within two years after the date of the settlement, be void against the trustee "in the banki-uptcy, and shall, if the settlor becomes banki-upt at any subsequent time within ten years after the date of the settlement, be void against the trustee in the banki-uptcy, unless the parties claiming under the settlement can prove that the settlor was at the time of making the settlement able to pay all his debts Avithout the aid of the property comprised in the settlement, and that the interest of the settlor in such property had passed to the trustee of such settlement on the execution thereof. " (2) Any covenant or contract made in consideration of marriage, for the future settlement on or for the settlor's wife or children of any money or property wherein he had not at the date of his marriage any estate or interest, whether vested or contingent in possession or remainder, and not being money or property of or in right of his wife, shall, on his becoming bankrupt before the property or money has been actually transferred or paid pursuant to the contract or covenant, be void against the trustee in the bankruptcy. " (3) ' Settlement ' shall for the purposes of this Section include any conveyance or transfer of property." {p) E.t parte Hall, re Cooper, 19 Ch. D. 580. (/) Ex parte Cooper, re Zucco, 1875, L. R., 10 Ch. 510 ; £x parte Official Receiver, re Arnold, 1801, 9 Mor. 1, GC L. T. 121. 1-14^ 15AXKRUPTCY. The trustee of a post-nuptial settlement is not a purchaser for valuable consideration within the meaning of the Section, even when the property consists of leaseholds (g). But where leasehold property had been conveyed to trustees on certain trusts in order to induce another person to execute a settlement on similar trusts, it was held that valuable consideration had been given (h). The Section applies retrospectively to settlements executed before the commencement of the Act, imless executed by non-traders who were not within the Act of 1869 (i). But the proviso wdiich throws on the parties claiming under the settlement the onus of proving that the interest of the settlor has passed to the trustee on the execution of the settlement does not apply to settlements executed before the commencement of the Act (k). When a settlement is avoided only under this Section, the trustees are entitled to a lien on the trust property for costs properly incurred (/). When a settlement is subject to avoidance under this Section, a purchaser from the trustees cannot be compelled to complete, even if the settlor is willing to concur (vi). The word " void " in this Section means " voidable." The title of a purchasei' in good faith and for valuable consideration from a beneficiary under the settlement will be upheld against the trustee in bankruptcy of the settlor, if he had no notice of the settlement (n). Even if he had notice that the donee claims under a voluntary settle- ment his title may be upheld, if he had no notice of the insolvency of the settlor, or if the settlor has had the benefit of the consideration passing from him to the donee (o). The fact that a voluntary settlement has been set aside under this Section as void against the trustee in bankruptcy does not entitle him to stand in the place of the beneficiaries under the avoided settlement, or give him, on behalf of the general creditors, any priority over mortgagees and incumbrancei-s subsequent to the settlement. The effect of avoiding the settlement apj)ears to be to accelei'ate subsequent incumbrances generally (p). Trmtees 'L'itlc ' that the jrrantor had committed a felony and intended to leave the country witli the money advanced. The jfrantce took po.ssession. Sub.se(|ueutly, tlie {roods were scizeil under an cxfcutinu a.Lcainst tlie jrnintor. In an action of trover by the trrantco, the executiini creditor ])lcaded that the floods were not the i)roi)erty of the i)laintilT, and conlcndcMl that the consideration bciiif? illeffal, the assiffiiment was void. Rut the Coui't held that tlio whole transaction was tio(, so invalidated that an execution ci'oditor could ti-cnl llic y'oods sis beintr still tlic iini]icriy o)' the grantor. ]{EPUTED OWNERSHIP. 127 this Act shall not be deemed to be in the possession, order, or disjiosition " of the grantor. This Section is i-epealed, as regards Bills of Sale in security for money, by Section 15 of the Act of 1882 ; and the eft'ect of the repeal is, as regai'ds such Bills of Sale, to i-ostore the former law with a very important difference (see notes to Section 15 of the Act of 1882, post). By Section 44 of The Bankruptcy Act, 1883, the property of the bankrupt divisible amongst his creditors shall comprise, inter alia, " all goods being, at the commencement of the bankruptcy, in the possession, order or disposition of the ba,nkrupt, in his timde or business, by the consent and permission of the true owner, under such circumstances that he is the reputed owner thereof ; provided that tilings in action other than debts due or gi-owing due to the bankrupt in the course of his trade or business, shall not be deemed goods within the meaning of this Section." Goods coming into the possession of the bankrupt a.fter the commencement of the bankruptcy are not within the Section (u). As to the date when the bankruptcy commences see a^ite, p. 124. Constructive possession, such as the possession of an agent or bailee when the bankrupt retains control over the property, is sufficient to satisfy the Section (»•). But the Section does not apply unless the goods are in the sole possession of the bankrupt : thus, goods in the joint possession of the bankrupt and his solvent partner do not pass to the trustee by reason of reputed ownership (.v). Nor does the Section apply if an agent of the Bill of Sale holder has taken real possession on his behalf, even although the apparent possession of the grantor continues (?/). The goods must be in the grantor's possession, order, or disposition in his trade or business. The term "business" is of wider application than the term "trade " {z). It has been decided that the occupation of premises by a gentleman who sells his surplus farm and garden produce does not constitute a business within the meaning of the Section (a). The question whether the bankrupt was in possession o*- reputed owner is one of fact, regard being- had to all the circumstances of the case. It is not necessary to examine into the "actual state of knowledge or belief, either of all ci'editors or of particular ci^editors, and still less of the outside world, Avho are no creditors at all, as to the position of particular goods. It is enough if the in) L>/o)i c. Weldnn, 182J, 2 Binff. 331. («■) k'noidi'f p. IlorffuU, 1821, 5 B. & A. 13 1 ; Iloriixhy c. Jliller, 1S58, 28 L. J., Q. B. 99; Ex parte Roy, re SUletice, 1877, 7 Ch. D. 70. Ix\ Ex parte Dorman, re Lake, 1872, L. R., 8 Ch. 51 ; Ex parte Fletcher, re Bainbridae, 1S7S, 8 Ch. D. 218. (j/) Vicnrino v. HoUingxicorth, 1809, 20 L. T. 362; Ex parte Xafioiial Guardian Assiirancr Co., re Fraiiri>, 1878, 10 Ch. D. K)8. (z) Jiollf V. Miller, 1884, 27 Ch. D. 71. («) Ex parte Sally, re Wallif, 1885, 14 Q. B. D. 950. 128 BAXKRUPTCY. goods are in such a situation as to convey to the minds of those who know their situation the reputation of ownei-ship ; that repu- tation ai'ising by the legitimate exercise of reason and judgment on the knowledge of those facts which are capable of being generally known to those who choose to make inquiry on the subject." And to exclude the doctrine, " it is enough if the situation of the goods was such as to exclude all legitimate ground from which those who knew anything about that situation could infer the ownership to be in the person having actual possession" (b). The reputation of ownership is, therefore, excluded when there is evidence of a custom of trade so well known to persons dealing with the debtor that goods of a pai-ticular kind are not pre- sumptively the property of the person in whose possession the}' are. Thus, a custom is judicially recognised with regard to the hiring of hotel furniture ; and the custom excludes the reputation of ownership as to all fui'niture necessary for carrying on the hotel, whether the articles are actually hired or not (c). So, a custom has been proved to leave goods bought in the possession of the seller for a certain time until required by the purchaser (d). The onus of establishing the existence and notoriety of such a custom is on those who rely upon it (e). The consent of the true owner is a question of fact to be determined f]'om a consideration of all the cii'cumstances of the case ; but it must be a consent not merely to possession, ordei-, or disposi- tion, which may be for a limited purpose, but to such possession as reputed owner (/). The onus of proving the consent of the true owner is upon the trustee (g). The order and disposition of the bankriii)t may be terminated (1) by an actual change of possession : (2) by circumstances which put an end to the reputation of ownership ; or (3) by a clear witli- di'awal of the consent of the true owner, either to the continued ]-)()ssessi()n of the bankrupt or to his possession as i-eputed owner. If the grantee takes real possession before the ccnnmencement of the bankruptcy the clause will be excluded, even though tlie possession taken is a friendly possession in the intei-est of the bankrupt and not terminating his apparent possession (//). Actual possession taken by the grantee, thou(>'h without a sufficient demand, (h) Lord Selborne, L. C, in Ex parte Waf.U»», re Conefon, 1873, L. R., 8 Ch. 520. (r) Crinreoiir r. Salter, 1881, IS t'li. T). :(() ; E.i- parte Tn niiuiiiit, re J'arler, 1885, u. Q. B. 1). ma. (it) I'rie/tlei/ r. Pratt, 1867, L. H., 2 Kx. 101 (t'Mriii-sfock) ; Kx parte Wallciiix, re Coiixto)) 1873, L. R., 8 (/h. .520; Ex parte Vaii.r, r.' Cuestaii, \>*'\, L. R., Ch. (i(i2 (wines Hiid siiirit.s). (('I K.T parte Naumn, re Jlorii, 1880, .'} Morr. 51 ; spe nlso E.v parte Jfei/iiolds, re Banietf, 1SS5, 15 Q. B. D. Kii); Ex //arte Cro^slei/, re I'erl , IHiU, 1 Ir. R. 235. (/■) Load r. Oreeu, IHW, 15 M. & \V. 210; Smith r. IIhiI^oii, 1M;5, 31 L. .1.. Q. H. 1J5 ; J'rixMall /'. Loref/roee, 1802, L. 'I'., N. S. 210. ('/) Ex parte Ale.vatider, re K>liek. \HH\, VVh. I). lilO. (A) Viearhai /•. Jfolli,a/Aie„rlh. 1S(;!I, 20 I,. 'I'. :102 : !■> pari,' Xalmaal Cuirilla,, .l.seraia-r Co., re Fraiieh, 1878, 10 (.'li. D. Ins. REPUTED OWXEKSHIP. 129 accoi'dino- to the terras of the deed, excludes the Order and Dis- position Clause, at all events where a sufficient time has elapsed before the trustee's title commenced to allow of a rightful seizure (i). So, goods and chattels which are rightfully in the custody of the law are no longer considered to be in the order and disposition of the bankrupt : as, e.g., if they are seized by the landlord under a distress for rent (Jc), or if they are in the possession of a receiver (/), or if they have been seized by the Sheriff under a lawful execution (m). On the other hand, if the Sheriff has seized goods wrongfully, the seizure counts for nothing, and the trustee may still claim the goods as being in the bankrupt's order and disposition (n). The fact that the bankrupt was once the i-eal owner of the goods, and had continued in possession until the commencement of the bankruptcy, is prima facie evidence that he continued in possession as owner, and the person claiming against the trustee must prove that he had ceased to be the reputed owner. Where the claimant proved that the goods had been seized by the Sheriff under an execution and sold to him by Bill of Sale, that he had demised them at a rent to the bankrupt, and that soon after the execution of the Bill of Sale the grantee's initials had been marked on all the goods (machinery), it was held that this was no evidence of iiotorietj' of the change of property, and therefore no evidence that the bankrupt had ceased to be the reputed owner (o). The determination of the true owner's consent may be evidenced by a honil fide demand of possession, even if unsuccessful, for after a lawful demand and refusal the grantor's possession is tortious, and not with the consent of the grantee (p) : thus, where the grantee of a Bill of Sale had made every effort to obtain actual possession of the goods early on the day of the filing of a liquidation petition, and did obtain possession the day following, it was held that the goods were not in the order and disposition of the bankrupt (q). If the true owner takes possession of the goods after the date of the bankruptcy, but before the date of the receiving order, without (i) Brrvmwell v. Eglinton, 1864, 33 L. J., Q. B. 130; Ex parte Sedfern, re Ball, 1871, 19 W. R. 1058. (k) Savker v. Ckidley, 1865, 13 W. R. G90. (I) Taylor c. Eckerdey, 1877, 5 Ch. D. 740. ()») Fletcher i-. Maniiim/, 1844, 12 M. & W. 571; Ex parte Foss, re Baldwin, 1858, 27 L. J., Bank. 17. (h) Barrow v. Bell, 1855, 25 L. .J., Q. B. 2; Ex parte Edey, re Cuthbertton, 1875, L. R., 19 Ec|. 204. (o) LiiK/ard r. Mentiter, 1823, 1 B. A; C. 308. As to marking name or initials on goods ef. K)wwle» i: Uorrfall, 1821, 5 B. A: A. V-H. (;>) Smith r. Topping, 1^33, 5 B. & A(l. 674; Ex parte Ward, re Couston, 1872, L. R., 8Ch. 144; Ex parte Montagn, re O'Brien, 1876, 1 Ch. D. 556. (q) Ex parte Harrit, re Ptdling, 1872, L. R., 8 Ch. 43; see also Ex parte Cohen, re Sparke, 1871, L. R., 7 Ch. 10. K 130 BANKRUPTCY. notice of an available act of bankruptcy, the transaction may be protected by Section 49 {ante, p. 125). Thus, where the grantee, on receiving- notice that the grantor was about to file a liquidation petition, immediately sent to demand payment of the debt and take possession of the chattels, and actually obtained possession the day after the petition was filed, it was held that his taking possession was a protected transaction : for he had no notice that the petition was filed, and, though he had notice that the grantor intended to commit an act of bankruptcy, he was not bound to inquire whether the act had been committed, or to refrain from pursuing his legal remedy (/•). So, if the grantee demands possession, he determines the consent of the true owner, and in similar circumstances this is a protected transaction : though a mere intention to demand or take possession is not sufficient. ]SJ"or is an attempt to dispose of the goods by auction enough to determine the consent, unless, perhaps, the goods are advertised for sale as the property of the grantee under the Bill of Sale (s). Jnrisdictiou in Bankruptcy. — By Sub-section 1 of Section 102 of The Bankruptcy Act, 1883, it is enacted : — " Subject to the provisions of this Act, every Co art having jurisdiction in bankruptcy under this Act shall have full power to decide all questions of priorities, and all other questions whatsoever, whether of law or fact, which may arise in any case of bankruptcy coming within the cognisance of the Court, or which the Court may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property in any such case. Provided that the jurisdiction hereby given shall not be exercised by the County Court for the purpose of adjudicating upon any claim, not arising out of the bankruptcy, which might heretofore have been enforced by action in the High Court, unless all parties to the proceeding consent thereto, or the money, money's worth, or right in dispute does not in the opinion of the Judge exceed in A'alu(> two liundred pounds." Where, by the operation of the bankruptcy laAvs, the trustee in bankiniptcy takes a higher and better title than the hankru^)t, as where he applies to set aside a Bill of Sale as a fraudulent preference or an act of banki-uptcy, the Court of Bankruptcy has jurisdiction and ouglit to exercise it (f). So, also, if the deed is alleged to be fraudulent under 13 Eliz. c. 5 (n). But this is not an (r) Graham v. Fiirher, IS.i.S, 23 L. J., V. P. 10 ; K.v parte Arnold, rr U'rit/lif, 1S76, 8 Oh. D. 70. {>) Brewin v. Shurt, 18.-,5, 21 L. .]., Q. B. 297; Rri/„„/,/>: r. Hall, lsr,!t, '>H I,. J., Kx. 257; Ex parte Cohen, re Sparke, 1871, L. R., 7 Ch. 20. if) Kx parte Jlruini, re Yate,, 1.S79, 11 Ch. I). 1 IS ; Ex parte Sriitt, re Jlmcke, 188;-), 1(5 Q. B. D. r>m. (n) Ex parte lintterK, re llarfhn,,, ISSO, U Ch. D. 2(;r> ; Kx parte Priee, re /W^-c/.v, 1882, 21 cii. I), .',.'•,:<. JURISDICTION IN BANKRUPTCY. 131 absolute rule. It is a matter of judicial discretion in each case how the question shall best be tried. In such a matter the Court of Appeal does not readily overrule the discretion of the Bankruptcy Judge (tr). The Court of Bankruptcy may decline jurisdiction where an important question of principle is involved, which would be better tried elsewhere : such as the existence and notoriety of an alleged usage of trade to exclude the reputation of ownership (x). So, where questions of character are involved, and a large amount is at stake, the County Court is not a proper tribunal, and the trustee should be directed to bring an action in the High Court (?/). Where a trustee in bankruptcy claims only the same right as the I)ankrupt would have had, as in the case of a simple money demand by the trustee against a stranger to the bankruptcy, he should take pi-oceedings by action, and the Court of Bankruptcy ought not under ordinary circumstances to assume jui-isdietion (z), unless the other party consents to the exercise of jui-isdiction by the Court of Bankruptcy. If a stranger tf) the l^ankruptcy is willing to subniit to the jurisdiction, the trustee should not object (d). The Court of Bankruptcy has no jurisdiction to try questions between thii-d parties, with reference to property in which the trustee claims no interest, although the decision of such qviestions might also decide which of such third parties should prove against the estate (h). When the Court lias jurisdiction, and the only question is whether it ought to exercise it, an objection to the exercise of jurisdiction should be taken at the earliest opportunity. It is too late to take such an objection after the objecting party has taken the chance of a decision in his favour on th-e merits (c). But an objection to the existence of jurisdiction cannot be taken too late, and the Court itself ought to take the objection if the want of juris- diction appears. But though the objection must be allowed, the order of the Court below may be discharged without costs, if the opposite party has been misled (d). When a liquidating debtor, after resolutions for composition have been come to, has given a Bill of Sale to the trustee to sectire the balance of his costs, charges, and expenses, the Bankruptcy Court («•) Ej^ parte Reynold*, re Barneft, 1885, 1-5 Q. B. D. 169. (a) Ex parte Beynold», re Barneft, 1885, 15 Q. B. D. 169 : Sharp r. McHeiiri/, 1896, 55 li. T. 7+7. (I/) Ex parte Armitaqe, re Learoyd, 1881, 17 Ch. D. 13 : Ex parte Price, re Bohertr, 1882, 21 Cii. D. 553; Ex parte Hazelhiimt, re Berwick, 1888, 58 L. T. 591. (z) Ex parte Dickix, re Pollard, 1878, 8 Ch. D. 377: Ex parte Mufffrave, re Wood, 1878, 10 Ch. D. 94. (a) Ex parte Fletcher, re Hart, 1878, 9 Ch. D. 381. (4) Ex parte Beesti/, re Lowenthal, 1884, 13 Q. B. D. 238. (c-) Ex parte Sirinhauk*, re Shankf, 1879, 11 Ch. D. 525 : Ex parte Butters, re Harrtfon, 1880, 14 Ch. P. 26.5. {di i:.i parte Eatimiih, re Cliffe, 1880, 42 L. T. 95. 132 BANKRUPTCY. has no jurisdiction to set aside the Bill of Sale at the instance of the debtor on the ground that it was obtained under pressure, the trustee having obtained possession of the goods as an officer of the Court, and having taken advantage of his position (e). When an auctioneer has accepted from a trustee in liquidation a retainer to sell goods, with full knowledge that they are claimed by the holder of a registered Bill of Sale, and has afterwards sub- mitted to an order to pay the proceeds into Court, the Court has jurisdiction to order, as against him, that the proceeds be paid out to the trustee ; the auctioneer cannot set up the jns ferfii of the Bill of Sale holder even if the latter has commenced an action against him for the proceeds (/). As to the jurisdiction of the Court of Bankruptcy to make an order for foreclosure, reference may be made to the under-noted cases (g). Rights of Holder of Bill of Sale. — When a receiver has been appointed by the Court of Bankruptcy it is a contempt of Court for the holder of a valid Bill of Sale of the bankrupt's goods to oust the receiver from the possession which he has taken. The mortgagee ought to apply to the Court for leave to enforce his rights (A). Even if the Bill of Sale holder has taken possession before the receiver, so that they ai*e in concurrent possession, the Bill of Sale holder is not justified in removing the chattels pending a decision as to the valid it}^ of the Bill of Sale (/). As to the proof of his debt by a creditor who holds the security of a Bill of Sale see The Bankruptcv Act, 1883, Schedule I., 10, 12; Schedule 11., 9-17. If a first mortgagee gives up his security, and proves for his whole debt, the first mortgage is not extinguished nor the second mortgage accelerated, but the first mortgage remains on foot foi- the benefit of the general body of creditors (A-). So, if the trustee in bankruptcy purchases the property from a first mortgagee, the first mortgage is not extinguished, nor the second mortgage accelerated ; but the second mortgagee is still entitled to redeem (/). A creditor of a bankrupt held two Bills of Sale over all the disclosed property. Objections were raised to their validity on the ground, inter alia, that they did not include crops then growing. The holder oifered to pay the trustee the value of the growing crops. (e) Ex parte Lyotn, re Lyonn, 1872, L. R., 7 Ch. 494. if) Ex parte J)avie», re Sadler, 1881, 19 Ch. D. 86. Ol) 1<> parte Elelrher, re Hart, 1878, 9 (!li. D. 381; samo case, 1S70, in Cli. D. HIO ; part,- JlirHt, re If/ier/ji/, 1879, 11 Ch. D. 278. (fi) Kx parte Corliraiie, re Mead, 1875, L. R., 20 Ki|. 282. (0 Ex parte Andrews, re Fett*, 1870, 1 Ch. V). m'?i. {h) Craekiiall i: .laiiixni, 1877, V, Cli. I). 7:)o. (I) Bell It. iSniiderlaiid Jinitdii/// Soeiefy, 1883, 21 Ch. I). ()18. RIGHTS OF HOLDER OF BILL OF SALE. 133 This ott'ei- was accepted at a meeting- of tlie creditors ; and it was also resolved " that the bankruptcy be thereupon annulled, that the Bill of Sale holder release his claim on the bankrupt's estate, and that the Bill of Sale be not disputed by the trustee." These resolutions were approved by the Court, and an order made annulling the bankruptcy. The money was paid, and divided among the creditors other than the mortgagee. The mortgagee realised his security, but did not obtain enough to pay his debt in full. Six years afterwards it was discovered that the bankrupt had concealed a reversionary interest to which he was entitled at the date of the adjudication ; and an order was obtained discharging the annulling order, and directing that the bankruptcy should proceed as if that order had not been made. It was held that the mortgagee was, equally Avith the other creditors, remitted to his original rights, and therefore he was entitled to prove for the unpaid balance of his debt (m). Where the holder of a Bill of Sale which was void against creditors for want of registration had, in ignorance of the adjudi- cation, paid out executions and taken possession, it was held that he was entitled to be repaid the sums so paid, inasmuch as the trustee could not have claimed the goods without discharging the executions (w). In another case a registered Bill of Sale was void in the bankruptcy of the grantoi-, because when it was executed the grantee had notice of an act of bankruptcy on which the grantor was afterwards adjudicated bankrupt. The money secured by the deed consisted in part of sums paid by the grantee to discharge prior registered Bills of Sale executed before the act of bankruptcy was committed ; and, though the old Bills of Sale were not transferred to the grantee and satisfaction had been entered up, the new Bill of Sale was held to be valid as against the trustee to the extent of the sums paid in discharging the old Bills of Sale (o). But a person who, under a fraudulent contract with a debtor for the purchase of goods, pays a sum of money in discharge of an execution which would be valid in the subsequent bankruptcy of the debtor, has no claim to stand in the place of the execution creditor, and to have the money repaid by the trustee (p). So, where a Bill of Sale is void as an act of bankruptcy, the grantee cannot retain out of the proceeds of the sale further advances made by him to the grantor, inasmuch as the advances were made with notice of the act of bankruptcy committed l)y the execution of the deed (q). (ill) Ex parte Jiirrh, re Spanfoii, 1879, 10 Ch. D. 179. (h) Ex pnrfe Miittoii, re Cole, 1872, I;. R., U K(|. 178. (o) Ex parte Ilarrh, re Jamef, 1871, L. R., 19 Eq. 253. f/j) Ex parte Hall, re Toinifeiid, 1880, 14 Ch. D. 132. iq) Ex parte Daiiii, re Parker, 1881, 17 Ch. D. 2G. PART II. THE REPEALED STATUTES, BILLS OF SALE ACT, 1854 (17 .V 18 VICTORIA, c. 36). An Act for l^rei-ent'uuj Frauds upon Creditors hi/ Secret Bills of Sale of Personal Chattel s. [10th Julij, 1854. WHEREAS Frauds are frcqueufhj committed upon Creditors by Secret Bills of Sale of Personal Chattels, lohereby i^ersoiis are enabled to keep up the appearance of being iii good circu^nstances and possessed of property, and the grantees or holders of such Bills of Sale have the poiver of taking possession of the property of such persons, to the exclusiofi of the rest of their creditors : For remedy whereof, be it therefore enacted by the Queen s most Excellent Majesty, by and tvith the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follcnos : miUof,Saie to 2 Everii Bill of Sale of Personal Chattels made, after the hf cold, HHleilS . ,. "^ , . r .J , , J 7-77 the gamn or a posstiig of this Act, either absolutely or conditionally, or Tp%r!ni'uhiii subject or not subject to any trusts, and lohereby the grantee tioentij-one (),• holder sholl have power, either icith or without notice, and 'iiiau'ner af either immediately after the making of such Bill of Sale or "'"■rranh of df (^^ly futiire time, to seize or take possession of any property and effects comprised in or tnade S7ibject to such Bill of Sale (a), a)id every Schedule or Inventory ichich shall be thereto a^mexed or therein referred to, or a true copy thereof, and of every attestation of the execution thereof, shall, together tvith an affidavit of the time of such Bill of Sale beijig made or given, and a description of the residence and occupation of the person making or giving the same, or, in case the same shall be made or given by any person under or in the execution of any process, then a description of the residence and occupation of the person against whom stich process shall have issued, and of every attesting witness to such Bill of Sale, be filed iviththe Officer acting as Clerk of the Docquets and Judgments in the Court of i^ueois Bench, within tweiity- one days after the making or giving of such Bill of Sale (in like manner as a warrant of aftaruey in any personal action given by a trader is now by latv required to be filed) (b), otherwise such Bill of Sale sliall, as against all assignees of the estate and effects of the person whose goods or any of them are comprised in such Bill of Sale uyider the laivs relating to bankruptcy or insolvency, or under a)iy assignment for the benefit of (a) See Section 3 of the Act of 1878, post. (1)) See Section lO' (•>) ^[^bZk '^- '^^^^ *'""^ Offcer of the said Court of (Queen's Bench cnnfaiiiiDiji shall causc every Bill of Sale, and every such Schedule and ilTearh BUI Invcntovy as aforesaid, and every such copy filed in his said •if Sale. office under the provisions of this Act, to be numbered, and shall keep a book or books in his said office, in ivhich he shall cmise to be fairly entered an alphabetical list of every such Bill of Sale, containing therein the name, addition, and description of the person making or giving the same, or in case the same shall be made or given by any person under or in the execution of process as aforesaid, then the name, addition, and description of the person against whom such process shall have issued, and also of the person to lohom or in whose favour the same shall have been given, together ivith the number, and the dates of the execution and fi'ling (f the same, and the sum for which the same has been given, and the time or times (if any) ivhen the same is thereJiy wade payable, according /o the Form contained i)t the Schedule to this Act, ivhich (c) See Section H of the Arf of 1S7S, post. (d) See Section 10 (3) of (he Acf of 1878, post. BILLS OF SALE ACT, 1854. i-"JU said hooh or hoolcs, and every Bill of Sale or copy thereof filed in the said office, may be searched and viewed by all persona at all reasonable times, payiny to the Officer for every search against one person the sum (f Sixpence and no more ; and that, in additicm to the last-mefUioned booJi, the said Officer of the said Court of Queen s Bench shall keejJ another book or index, in which he shall cause to be fairly inserted, as and tohen such Bills of Sale are filed in manyier aforesaid, the name, addition, and description of tlie person making or giviyig the same, or of the person against whom such process shall have issued, as the case may be, and also of the persons to whom or in lohose favour the same shall have been given, but containi)ig no further particulars thereof ; which last-mentioned book or iiidex all persons sliall be permitted to search for themselves, paying to the Oficer for such last -mentioned search the sum of One Shilling (e). ffaf^fofu'' ■^- ^^'^ *'^"^ Officer shall be entitled to receive, for his ffii-jiibii'i Bill trouble in filing aiid entering every such Bill of Sale or a foaccoiuiffor '^'^PV thereof as aforesaid, the sum of One Shilling and no the same. more ; aiid such Officer shall render a like account to the Commissioners of Her Majesty's Treasury, and the said Coinmissioners shall have the like powers in every particular with respect to such account, and the amount of i-emuneration of such Officer, and loith respect to any surplus of the fees received by him, as is provided by the Seventy-fifth Chapter of the Statute passed i)i the Thirteenth and Fomiehith Years of the Reign of Her present Majesty with, respect to the Officers of the Court of ('Omnurn Pleas therein mentioned (f). Office Copin .J ^/j;/ 'persou shall be entitled to have an office caui/ or Extracfa ,■ tt77 ■ t( 7 j- 7 '•',-'•'. to he given or (in extract of every Bill of Sale, or of the copy thereof fardainex'of fi^^d as aforesaid, upon paying for the same at the like Judgmenif. rate as for office copies of judgments in the said Court of Queen's Bench (g). Satisfaction Q ff .^../^^f// I,, lairfiil for anil Judqe of the said Court of entered. Quceii's Bench to order a Memorandum of Satisfaction to be written upon any Bill of Sale or copy tfiereof respectively as aforesaid, if it shall appear to him that the debt (if any) for ivhich such Bill of Sale is given as security shall fiave been satisfied or discfiarged (h). interpreta- 7 j,^ construing this Act the following words and Ternis. expressions shall fiave the ineanings hereby assigned to them, unless there be something in the subject or context repugnant to sucli constructions ; {that is to say), The expression " Bill of Sale " shcdl include Bills of Sale, Assign- ments, Transfers, Declarations of Trust ivitfiout Transfer, and (e) This Section irns amended hi/ Section 7 of the Act of 1SH6, post. (f) See Sections IS and 19 of the Act of 1S7S, post. (g) See Section 10 of the Act of 1S7S, post, (h) See Section 15 of the Act of 1878, post. 140 THE REPEALED STATUTES. other assnnDicea of ■personal chattels, and also Fowers of Attorney, Authorities, or Licences to take possession of personal chattels as security for any debt ; hut shall not include the fol- loiving documents : that is to say, Assigmnents for the Benefit of the Creditors of the person making or giving the same; Marriage Settlements ; Transfers or Assignments of any Ship or Vessel, or any share thereof; Transfers of Goods in the ordinary course of busiicess of any trade or calling ; Bills of Sale of Goods in Foreign Parts or at Sea ; Bills cf Lading ; India Warra?its ; Waj-ehotise Keepers Certificates ; Warrants or Orders for the Delivery of Goods, or any other Documents used in the ordinary course of business as proof of the possession or control of goods, or atithorising or purporting to authorise, cither by indorsement or by delivery, the possessor of such documeiit to transfer or receive goods thereby represented (i) : The expression '"'' personal chattels'' shall mean goods, furniture, fixtures, and other articles capable of complete transfer by delivery, and shall not include chattel interests in real estate, nor shares or interests in the stock, fimds, or securities ). by way of security for the payment of money by the grantor, which are governed by the provisions of the Act of 1882 ; and (3) Bills of Sale by way of security for the payment of money, executed on or after 1st January, 1879, and duly registered before 1st November, 1882^ which are governed by the Act of 1878, and are not affected by the Act of 1882, " so long as the registration thereof is not avoided by non-renewal or otherwise." For the reason of this classification, and the cases omitted from it, see Section 3 of the Act of 1882, po«f. (c) Both sense and grammar require a correction here. Read " whether absolute or coiidifioiuil," or perhaps "whether absolute or not." The corresponding words in the Act of 1854 (Section 1) were "every Bill of Sale made either absolutely or conditionally, or subject or not subject to any trusts." Section 2 of the Act of 1854 provided that if a Bill of Sale was "made or given subject to any defeasance, or condition, or declaration of trust," the defeasance &c. was to be taken as part of the Bill of Sale. From this it seems clear that the Legislature used the words "defeasance" and "condition" in their strict technical sense, as cori'elative to a conveyance which is not absolute. In this Act a corresponding provision is contained in Section 10; but the Court of Appeal has recently held that the word " condition " is not to be taken in this technical sense (see note (?•) to Section 10, post). (d) See the definition of "personal chattels" in Section 4, post. By Section 5, post, trade machinery, as there defined, is in certain cases to be " deemed to be personal chattels." The exact relation between Sections 3 and 4 has never been determined. The words of Section 3 are not enlarged by the definition contained in Section 4 (Cave, J., in Ex parte Close, re Hall, 1884, 14 Q. B. D. 386). It appears that Section 3 is not modified by Section 4, but that Section 3 applies the provisions of the Act to each of the instruments mentioned in Section 4 (Fry, L. J., in E,v parte Hahhard, re Hardwick, 1886, 17 Q. B. D. 690). But the instrument must be one " whereby the holder or grantee has power to seize or take possession of personal chattels." These words indicate the scope of the Act. Two tests must, therefore, be satisfied before a document can be said to be a Bill of Sale within the Acts — (1) The first test is whether the instrument in question falls witliin the definition of a Bill of Sale contained in Section 4 (see notes {b) to (i) to tliat Section, post) . As to the application of this test to documents accompanying sales see ante, pp. 6 to 17 ; as to gifts, declarations of trust, and settlements, see ante, pp. 20 to 22 ; as to mortgages see ante, p. 53. A lien which is given by law without any writing, such as the lien of an unpaid vendor of land to which trade machinery is affixed, is outside the Acts (In re Vulcan Iron Works, 1888, W. N. 37). (2) The second test is whether tlic instrument is one whereby possession may he taken — in other words, is one which is consistent with the possession remaining in the grantor (c/. Ex parte Hubbard, re Hardwick, 1886, 17 Q. B. D. 690). Therefore, the Acts do not apply to any document or transaction where the object and effect of the transaction is to give immediate possession to the grantee. Such, for instance, is the contract of pledge. " If the transaction be only one of pledge arising from the delivery by one party to the other of the poasessicm of his goods as a security for tlic money advanced, it is immaterial that the terms upon wiiich thosc^ goods are pledged arc reduced to writing. Ft floes not make it a Bill of Sale" (Lord Herschell, L. C, in Charlesworth v. Mills, 1892, A. C. 231, stating the effect of Ex parte Hubhurd, supra), in INTERPRETATION OF TERMS. 149 such a case it may be necessary to rely on the document as showing the terms of the advance, but it is not necessary to have recourse Sect. 3, to it for the purpose of establishing title. So, the Acts do not Note ('/). applj' to a document under which a person is to have a lien on goods wlien tliej' come into his hands, even if the whole contract is contained in the dociiiiient, for the right is a legal right dependent upon possession (cf. Morris v. DeJolhel-FUpo, 1892, 2 Ch. 352). As to pledges and other securities dependent on possession see Chapter IV. {ante, p. 45). As to cases of sale where possession is actually given as part of the transaction see ante, pp. 17 to 19. The question whether possession has actually been delivered appears to be a question of fact (see posf, p. 153). The question may be asked : What will take a Bill of Sale out of the Acts ; when do tlie Acts cease to apply to a document ? It is difficult to give an answer in general terms to this question. But it may be useful to note the folloxviiig points: (1) A Bill of Sale in security for money may be rescinded or cancelled by agreement, and the grantee may make an independent title either under a substituted Bill of Sale or under an agreement between the parties 1;hat he should have a lien upon the goods for the debt due to him (see note to Section 9, poi^t). (2) A Bill of Sale in security for money may be taken out of the Acts by satisfaction of the debt secured by it (see Section 15, jjo.i^). (3) A Bill of Sale in security for money is taken out of the Acts -if the mort- gagee takes possession and sells under the ])ower of sale, delivering jjossession to the purchaser. But this must be carefully distinguished from a mere transfer of the mortgage title {Cooh>ion r. Sn-iri\ IHH4, 9 App. Ca. 653; see note (ii) to Section 10, jiost). (4) A Bill of Sale in security for money is taken out of the Acts if the mortgagee purchases the equity of redemption and takes possession, for then the Bill of Sale is wholly exhausted and spent, and the title is no longer made under it (Ex parte Turqiiatid, re Farl-er, 1885, 14 Q. B. D. 636). (5) It has been held that an Absolute Bill of Sale is not taken out of this Act for all ])urposes by the delivery of actual possession to the grantee, for, though the Bill of Sale is no longer within the penal consequences of Section 8, it is still liable to be postponed to a later registered Bill of Sale under Section 10 (ThcI- v. Southern Counties^ Deposit Bank, 1889, 42 Ch. D. 471 ; see note (f) to Section 10, post). i. In this Act (a) the following- words and expressions imerpre- sliall have the meanings in this Section assigned to them of Terms. respectively, unless there be something in the subject or context repugnant to such construction ; (that is to say,) The expression "Bill of Sale" (b) shall include bills of sale (c), assignments, transfers (d), declarations of trust without transfer (e), inventories of goods with receipt thereto attached (/), or receipts for purchase moneys of goods (/), and other assurances of personal chattels (g), and also powers of attorney, niuthorities, or licences to take possession of per- sonal chattels as security for any debt (h), and also any agreement, whether intended or not to be followed by the execution of any other instrument, by which a right in Equity to any personal chattels, or to anv charge or security thereon, shall lie 150 BILLS OF SALE ACT, 1878. Sect. 4. conferred (z), but shall not include the following- documents ; that is to say, assignments for the benefit of the creditors (y) of the pei'son making or giving- the same, marriage settlements (k), transfers or assignments of any ship or vessel or any share thereof (I), transfers of goods in the ordinary course of business of any trade oi- calling- (m), bills of sale of goods in foreign parts or at sea (n), bills of lading, India warrants, warehouse- keepers' certificates, warrants or orders for the delivery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by indorsement or by delivery, the possessor of such document to ti'ansfer or receive goods thereby repre- sented (n) : The expression "personal chattels" (p) shall mean goods, furnitui'e, and other ai-ticles capable of complete transfer by delivery (q), and (when separately assigned or charged) fixtures (y) and growing- crops (x), but shall not include chattel interests in real estate, nor fixtui^es (r) — except trade machinery as hereinafter defined — when assigned together with a freehold or leasehold interest in any land or building- to which they are affixed, nor gi'owing crops (.s), when assigned togethei- with any interest in the land on which they grow, nor shares or interests in the stock, funds, or securities of any g-overnment, or in the capital or property of incorporated or joint stock companies, nor choses in action (t), nor any stock or produce upon any farm or lands which by virtue of any covenant or agreement or of the custom of the countiy ought not to be removed from any farm where the same are at the time of making or giving of such Bill of Sale (v.) : Persoiiiil cliiifti'ls shall be ilccincd to lie in t]n' "ajipai'ciit possession "' of the ])ei'son making or gi\fng a IJill of Sale, so long as they remain or ai'c in (n- upon any house, mill, warehouse, building, woi-ks, yard, land, or othei- pr(Mnises occuiticd by him, oi- are used and enjoyed liy Iiiin in any place whatsoever, notwithstanding- llial I'ornnil j)i)ssession thereof BILL OF SALE: (1) ASSURANCE OF CHATTELS. 151 may have been taken by or given to any otlier Sect. 4. person (r) : " Prescribed" means prescrilied l)y rules made under the provisions of this Act (ir). (a) This Interijretation Section also governs the Amendment Act of 1882, which, however, only applies to Bills of Sale fifiven in security for money (see Section 8 of that Act, pout). (h) "Bill of Sale"' comprises documents of three classes: (1) Assui'ances of personal chattels (see notes (c) to (g), uifra); (2) Documents which are not assurances of property but which confer a power or licence to take possession of personal chattels as security for a debt (see note (h), infra) ; (3) Documents creatine^ a riijht or charore in Equity affectino: personal chattels (see note ((), infra). If an instrument does not come within this definition, it is not a Bill of Sale. This is the first test which must be satisfied before an instrument can be said to be a Bill of Sale within the Acts (see ante, p. 148). Under the Act of 1882 a Bill of Sale in security for money must be an assurance in accordance with the statutory form, and documents of the second and third classes are no longer valid as securities. By Section 5, post, dispositions of fixed trade machinery, where an interest in the land or building passes by the same instrument, are to be deemed to be Bills of Sale. By Section 6, post, certain attornment clauses and instruments creating a right of distress are to be deemed to be Bills of Sale. The Acts of 1890 and 1891 exempt certain letters of hypothecation of imported goods from the definition of Bills of Sale. (c) For the definition of a Bill of Sale at Common Law see ante, p. 1. (d) " Transfer means a document, which, though not in form a Bill of Sale, assumes to transfer the propertv in goods in the same wav as a Bill of Sale would " (Lord Esher, M. R., in E.r parte Hubbard, re Hardicick, 1886, 17 Q. B. D. 690). The distinction between a transfer and a declaration of trust without transfer is familiar in Equity cases. (e) Declarations of trust without transfer may be either absolute or in security for money. As to the former see ante, p. 21. The latter would now be void under the Act of 1882, since they cannot be expressed in accordance with the statutory form. A trader, on obtaining an advance from his bankers, gave them a hypotheca- tion note whereby he undertook to hold certain goods in trust for them, and to hand over the proceeds when received to the amount of the advance. The trader being indicted for converting such proceeds to his own use, it was contended on his behalf that the note was void, being neither registered as a Bill of Sale nor in accordance with the statutory form. Day, J., held that the note was a declaration of trust without transfer, but that, as the goods were then at sea, the Bills of Sale Acts did not applv (Req. v. Tounithend, 1884, 15 Cox C. C. 466). See also the cases as to equitable assignments and charges (note (;), infra). if) The words " inventories of goods with receipt thereto attached, or receipts for purchase moneys of goods," were not in the Act of 1854; but as they are qualified by the word "assurances," the insertion of them did not make any change in the law (see ante, p. 13). In order to fall within the definition of a Bill of Sale, these documents must be assurances of personal chattels. Accordingly, a mere receipt which is not intended to and does not express the contract between the parties is not a Bill of Sale {Neirlore v. Shreirabiiry, 1888, 21 (}. B. 1). 41)- .■\n invoice and a rec(M"]ir. which are separate instruments and not intended to l)e oj)erative in connection with each other, cannot be regarded 152 BILLS OF SALE ACT, 1878. as an inventory of goods with receipt thereto attached (Man- Sect. 4, cheater .fc. Railicay Co. v. North Central Wagon Co., 1888, Note (/). 13 App. Ca. 554). These documents, when accompanying a bond fide sale of goods which are left in the vendor's possession, require registration or not according as they come within the principle of E-v parte Cooper, or the principle of Man^den v. Meadous (see the cases summarised, ante, pp. 7 to 17). When such documents do not represent the real transaction, but are adopted as a blind or cloak to cover a security for money, they are now entirely void, because a security on chattels for the payment of money must now be expressed in accordance with the statutory form, unless posses- sion is given as part of the transaction (see Chapters III. and IV., ante). (g) Tlie words "other assurances of personal chattels" in the Act of 1854 were held to include equitable assignments or securities giving a right to take possession through the agency of the Court (E.v parte Mackay, re Jenvons, 1873, L. R., 8 Ch. 643, and other cases cited in note (i), iitfra). But this Act expressly includes "any agreement by which a right in Equity to any personal chattels, or to any charge or security thereon shall be conferred." In works of authority, such as " Sheppard's Touchstone," the word "assurance" is used as equivalent to " con%'eyance." An "assurance" is defined to be the legal evidcTice of the translation of property " bj' which every man's property is secured to him, and controversies, doubts, and difficulties removed" (2 Bla. Com. 294). The best e.Kplanation of the term "assurance," as used in the Bills of Sale Acts, is still found in Marsden v. Meadown (1881, 7 Q. B. D. 80). In order to be an assurance, the document must be " one on which the title of the transferee of the goods depends, either as the actual transfer of the property, or an agreement to transfer, or as a muniment or document of title taken at the time as a record of the transaction" (see also North Central Wagon Co. i\ Manchester ,^'c. Railtvai/ Co., 1887, 35 Ch. D. 191 ; In re Roberts, Evans v. Roberts, 1887, 36 Ch. D. 196). It may be useful to refer to two instructive cases decided before the passing of the Act of 1854. A memorandum in writing, signed by the parties, and stating that "A. B. has i^old to C. D. all the goods, stock-in-trade, and fixtures in a certain shop for £50," was held to operate as a conveyance of the fixtures within the meaning of the Stamp Act. In answer to the argument that the instrument could not operate as a conveyance because the words were in the past tense, Parke, B., observed : " If the parties have so e.xpi-essed themselves as to make it apparent on the face of the instrument that the writing was intended to be the record of the transfer, it is immaterial whether the words used be in the past tense or the present tense." " No one can doubt that if there was an Act of Parliament that fixtures should not be transferred without writing, this instrument would satisfy it" (Horsj'uU v. Key, 1848, 17 L. J., Ex. 266). Certain goods in the ])ossession of one Merriman were seized under a /;. fa. Smith claimed them, and sued the SlierilT for taking them. To prove his title, he offered in evidence a document which contained the terms of an alleged sale by Merriman to him, and of some arrangement whereby Merriman was to continue in possession of the goods. This was rejected for want of a stamp ; and it was held by Coleridge and Eric, JJ., that parol evidence of the sale was inadmissible. Coleridge, J., said : " As the written document could not be received in evidence for want of a stamp, it seems to me that the case falls within the rule that a person who should j)rodnce a written instrument, and wlio fails to do so, cannot resort to other evidence " (Yorlco v. Smith, 1851, 21 L. J., Q. B. 53). (/() Powers of attorney, authorities, or licences to take possession of personal chattels as security for a debt weri^ formerly much used, especially as a mode of creating a security over after-accpiired property (see ante, p. 92). They are not now available aa securities for tlie payment of money, because they BILL OF SALE : (2) LICENCE TO SEIZE. 153 cannot be expressed in accordance with the statutory form (Er parfr Parsons, re Totcnseiid, 1K86, 16 Q. B. D. 532). But the words are only Sect. 4, applicable to documents which are consistent with the possession of Xote (/<). the i^oods remainin": in the grantor ; if possession is actually fjiven, as in the case of a pledsre, a document re^ulatin^ the rights of the pledgee is not a licence to take pos^e^xioit, and is not a Bill of Sale (Ec parte Hubbard, re Hardirick, 1886, 17 Q. B. D. 690; Charlesirorth v. Milh, 1892, A. C. 231). AV'hether possession is actually given is, it is conceived, a question of fact (see Aiicoiia v. Rogers, 1876, 1 Ex. D. 285). The situation of goods may be ambiguous, and the answer to the question in whose possession they are may depend on the intention of the parties. Thus, if A. brings goods on to the premises occupied by B. the goods may still remain in the possession of A. (c/. Ec parte Xeiritt, re Garriid, 1881, 16 Ch. D. 522 ; njite, p. 27), or they may be thenceforward in the possession of B. (c/. Reeie'^ r. Barloic, 1883, 12 Q. B. D. 436; ante, p. 28). ]n such a case a clause in an agreement that the goods " shall be deemed' to be in the possession of B." would be evidence to show the intention of the parties, and so to determine the question of actual possession. If the goods are in fact in the possession of B., such a clause would not be a Bill of Sale (Silencer v. Midland Railicay Co.. 1895, 11 T. L. R. 408, ante, p. 51; affirmed by Court of Appeal, 11 T. L. R. 542). But it is obvious that if the alleged possession of B. were merely feigned or fictitious, the case would not be taken out of the Act. Thus, if a man mortgaged the furniture in the house which he occupied, it would be ridiculous to suppose that the mortgage would not be a Bill of Sale because it provided that the furniture " should be deemed to be in the possession of the mortgagee." The words " as security for any debt " are important. A stipulation in a building agreement enabling the landowner to re-enter upon the builder's default, and that on such re-entrj- all the materials then in and about the premises should be forfeited to and become the property of the landowner "as and for liquidated damages," is not a Bill of Sale, inasmuch as, though it is a licence to take possession of personal chattels, the possession is not to be taken as security for any debt (Ec parte Neaitt, re Oarriid, 1881, 16 Ch. D. 522; ante, p. 27). But the term " debt " does not necessarily mean an existing debt : it may mean a possible future one (Hughe.'i v. Little, 1886, 18 Q. B. D. 32 : Piilbrook r. Aahby ^' Co., post, p. 155 ; Stevens v. Marston, post. p. 155). A bare licence to seize goods is revocable even though under seal ; but a licence coupled with an interest, as, for instance, when goods are sold on the terms that the purchaser maj' enter the vendor's land and take them, is not revocable (Wood r. Manleij, 1839, 11 A. & E. 34). A power of attorney may be irrevocable (Conveyancing Act, 1882, ss. 8 and 9). There may be a difference in the legal effect of a licence to seize '" as security for a debt," according as the transaction is intended to be one of pledge (or lien) or of mortgage. In the latter case, the grantee acquires the property in the chattels by the act of seizure; in the former case, he acquires only a special property or a right to retain the chattels as security. In Seirell r. Bn'rdick (1884, 10 App. Ca. 74, at pp. 95, 96), Lord Blackburn states clearly the distinction between a licence to seize, which operates as an agreement for a right of hypothecation (Hoires r. Ball, infra), and a mortgage whereby the property is transferred, even without delivery of possession, to the mortgagee {Florii r. Denny, 1852, 21 L. J., Ex. 223). But this is not a complete classification ; it omits a licence to seize which is incidental to a transaction of mortgage, and which leaves the property, legal and ecjuitable, in tlie mortgagor until actual seizure (see ante, pp. 92, 93). A coach was sold at a jjrice payable by instalments and delivered ; and the purchaser agreed that the seller should " have and hold a claim upon the coach 154 BILLS OF SALE ACT, 1878. until the debt be duly paid." This ao-reement was construed as a licence Sect. 4, to resume possession of and retain the coach if the price was not paid, Xote (//). but a personal licence not available against any person to whom the ])urchaser might transfer the property, or anj- person (e.g., an adminis- trator) in whom it had vested by operation of law {Hon-e>' v. Ball, 1 827, 7 B. it C. 481). So a licence to seize goods and treat theni as if distrained does not justify seizure after the property has vested in the assignees in bankruptcy of the grantor, even if they are still in his possession {Freeman r. Edwards, 18-1-8, 17 L. J., Ex. 258). Lord Blackbitrn, commenting on Howes v. Ball, supra, observes that if the agreement had amounted to a mortgage the seizure would have been justified as against the personal representative {Sewell v. Burdick, 1884, 10 App. Ca. 74, at p. 96). ' Even if the licence to seize is intended to operate as a mortgage, it cannot be exercised after the property has vested in the assignees in bankruptcy of the mortgagor {Carr r. Acraiiian, 1856, 25 L. J., Ex. 90). But it would seem that a licence may affect specific goods, so that the trustee in bankruptcy takes the property subject to an equity, and a valid seizitre may be made after the com- mencement of the bankruptcy {Freeman v. Ed/wards, supra ; E,v parte Newift, re Garrnd, 1881, 16 Ch. D. 522). A personal licence to seize chattels cannot be assigned or transferred to another, so as to confer on him the right to seize {Brown v. Metropolitan Counties Society, 1859, 28 L. J., Q. B. 236). If the licence to seize were incident to a transaction of mortgage, it is difficult to see any reason why it should not be assignable. But this decision was followed in Ex parte Eawlings, re Davis, infra, Avhere the possible distinction was not alluded to. As to licences to seize in building agreements see ante, p. 27. A hiring agreement, whereby the owner of goods reserves power to resume possession on default in payment, is not a licence to take possession within this Section; for this Section applies only to a licence by the owner of the goods (see ante, p. 41). But a sham hiring agreement may operate as a lictence by the ostensible hirer of the goods, enabling the ostensible letter to take possession as security for a debt, if the goods are in Law or in Equity the property of the ostensible hirer. If so, it is within this Section, and is void under the Act of 1882 (see Beckett r. Tower Assets Co., 1891, ] Q. B. 638; ante, p. 40; and thi- other eases summarised in Chapter III., ante, ])p. 30 to 41). In E.I' parte Rmrlinys, re Davis (1888, 22 Q. B. D. 193), certain goods belonging to Davis were in the possession of an intending purchaser under a hiring agreement, which provided that, if default should be made in the punctual payment of the hire, Davis might immediately enter upon the dwelling-house of the hirer, and take possession of and remove and sell the goods. Davis assigned all his right and interest under the agreement as security for an advance, authorising the lender, if default should be made in repayment of the loan as agreed, to exercise all the ])owers containcnl in the hiring agreement until the balance du(^ to him should have been rc^paid. Davis became bankrui)t, and the trustee claimed to be entitled to the benefit of the hiring agreement on the ground tliat the assignment was a licence to take possession of chattels as security for a debt, and, therefor(\ a Bill of Sale. The Court of Appeal held that the assignment did not pass nny property in the goods and that it was tiot a licence to take possession. They also held that if anything it was '' an assignment of a licence to take jiossession of goods," and that the licence to seize chattels iimlcr the hiring agreement could not be legally assigned. This i-easoiiing is not altogether satisfactory. In E.c parte Crawconr, re Rohertson (1878, 9 Ch. D. 419), and other cases, (uilc. p. 11, it was laid down that a hiring agreement is not a licence to seize gi\cn by the hirer, unless the pr()]>i'rty in the goods has passcil to l lie iiirei'. If a hiring agreement is not a licence to seize, can it be rigiit to say that ati ussignmeiit of the owner's rights under RILL OF SALE: (2) LICENX'E TO SEIZE. loS the hirinti: aoreement is an assicrnment of a licence to seize ? Jforo- over, a licence by the owner of goods is the sort of licence to ■which Sect. 4, the autliority of Brotni v. Metropolitan CoiDitie.^ Society, t'lipi-a, Note (/(). applies. It is clear that if the assignment of a hiring agreement passes the ]iropertT in tlie chattels, or contains a contract to assign the pro]ierty, it would in tliat respect be a Bill of Sale {E r jiarte Ma^oit. re Isdacxon, 1894 [lS9o], 1 Q. B. 383). It is submitted that if an assignment of a hiring agreement in security for a debt purports to empower the lender to take possession of the chattels it ought properly to be regarded as a Bill of Sale. But the avoidance of the assignment '/«« licence to take possession would not affect its validity as an assignment of the contractual rights under the hiring agreement (£> parte Ma!rf-A('V)i Banli, re Slee (1872, L. R., 15 Eq. 69), where a letter of hypothecation, given b)^ a warehouseman to his bankers as a security over goods in his custody and promising immediate delivery, was held to be outside the Act of 1854. But if that decision turned on the transaction being a transfer in the ordinary course of business (as it seems to have been explained in Ex parte Conning, re Steele, 1873, L. R., 16 Eq. 414) quaere whether the new words would avail to bring it within the Acts (see note (m), infra). Possibly the words were suggested by the case of Braiitom r. Griffits (1877, 2 C. P. D. 213 ; ajite, p. 9), where a document accompanying a sale was held to be a Bill of Sale; but Cockburn, C. J., observed that if the parties "had agreed to execute some other instrument afterwards by which the property should be transferred, then the first document would not have been a Bill of Sale." Again, in Ex parte Watson, re Lore (1877, 5 Ch. D. 35), an agreement conferring on the vendor of goods for shipment a lien on the bills of lading, which was to cease on paj'raent of bills of exchange for the invoice price, was held to give a right connected with the vendor's lien, but not to be a Bill of Sale or other assurance of personal chattels within the Act of 1854. As the bills of lading- were not delivered to the vendor, but remained in the possession of the ship- owner, and the goods were not then at sea, it is possible that such a transaction might come within the words now under consideration. An agreement to give a Bill of Sale did not require to be registered (pia agreement under the Act of 1854 (Ex parte Homan. re Broadhevt, 1871, L. R., 12 Eq. 598 ; Ex parte Machay, re Jeavons, 1873, L. R., 8 Ch. 643) , nor does it require to be registered under the existing Acts (Er parte Hauxirell, re Heniingiray, 1883, 23 Ch. D. 626 ; .Jarris v. Jarris, 1893, 63 L. J., Ch. 10 ; see also ante, p. 54). Hut even iiikIit the .\rt of IS5I' it was decided that an agreement to give a Bill of Sail', it' iclicil upon as an ('qiiitable assignment of chattels, rc(piired registration. An unn^gistercd agreement to give a Bill of Sale over sj)ccified chattels as security for a debt immediately upon the creditor on reasonabl(> grounds flonianding the execution thereof, was held to be void against the trustee in li(|ui(lnti<)ii of tlu^ ilcbtor, even though a Bill of Sale had lieen tendered for execution before thi' ])etition was presented. The Lords Justices also held that the words "and other assurances of personal chattels" were intended to include assurances in Equity (Kx parte Machay, re Jeavons, 1873, L. R., 8 Ch. 643). BILL OF SALE : (;i) AGREEMENT CREATING RIGHT IN EQUITY. 157 So, where traders, being supplied by brokers with goods on credit, signed a written document, agreeing " to hold at your Sect. 4, disposal all our stock of soap and raw materials, and from time Note (('). to time, whenever recjuired by you so to do, to execute a valid and effectual transfer and assurance of the same to you ... to the intent that out of the premises all claims and demands for the time being owing from us to you may be fully paid and satisfied," the document was held void against the trustee in li(|uidrttion as an unregistered Bill of Sale (Ej: jiurte Cvrinhnj, re Steele, 1873, L. R., 16 Eq. -114). Two traders, in 1870, signed an agreement that they would, on demand, assign to their father and brother, as security for advances, the lease of their premises, and their business, stock-in- trade, and book debts, with a proviso that if they should repay the advances the agreement should be void, but if they should fail to do so a valuation should be made, and the balance (if any) should be paid to the debtors. An assig^nment was executed in 1873, and was upheld in the bankruptcy of the debtors. The effect of the prior agreement was not actually decided ; but the Lords Justices expressed the opinion that, until demand, no right to the stock-in-trade &c. would pass either at Law or in Equity; but that whenever a demand of an assignment was made a right in Equity to the property immediately accrued; and the agreement of 1870 became a valid equitable security subject to the Bills of Sale Act {Ex parte Izard, re Cool; 1874, L. R., 9 Ch. 271). A debtor, on the eve of insolvency, being jjressed by a creditor for payment, wrote saying : " In consideration of your delaying legal proceedings, I hereby transfer to you .500 tons of coals which are on my wharf, the proceeds of wlucli coals shall be handed to you till my debt to you is liquidated." This letter, which was registered as a Bill of Sale, was held to operate as an equitable transfer of the coals, and an equitable declaration of trust as to the proceeds (Em, would, on furnishing the said theatre, and whenever called upon, execute all such acts, assurances, and things as should Ije reasoiuibly re(|uired. lo8 BILLS OF SALE ACT, 1878. so as to charge all their and his rights to all furniture and httings Sect. 4, brought or to be brought into the theatre Math the payment of the Xiite (0- moneys thereby secured. Malins, V. C, held that this deed operated as a contract to assign the furniture then on the premises, or whicli might thereafter have been placed there, and that it was a Bill of Sale and invalid for want of due attestation (Baghott v. NoriiuDi, 1880. -41 L. T. 787). The decision that the Bill of Sale was void between the parties was wrong (see Davis V. Goodman, 1880, 5 C. P. D. 128). A testator, by his will, gave his son an option to purchase his business. The trustees of the will transferred the business and chattels to him by an agreement dated loth September, 1882. A clause in the agreement confei-ring on the trustees a lien or charge for the unpaid purchase money was held to operate as a Bill of Sale by the son in favour of the trustees, and to be void for want of I'egistration against the trustee in the subsequent bankruptcy of the son {Cobwrv v. CoUiiii^, 1887, 35 Ch. D. 373). On the dis- solution of a partnership between father and son, the father by deed assigned to the son the jiremises, stock-in-trade, and chattels in consideration of a life annuity which the son convenanted to pay, and which it was agreed should be a first charge on the jiremises, stock-in-trade, capital, and goodwill of the business. The deed contained powers of distress and entry if the annuity should be in arrear, and also (after the death of the son) a power of sale. Held, that the deed was both an authority to take possession as security for a debt, and also an agreement by which a right in Equitj' was conferred, and that it re- (piired registration as a Bill of Sale {Cranjield v. Craiifiehl, 1889, 23 L. R. Ir. 555). W., who had carried on business with his son, by liis will gave his son, whom he also appointed one of his trustees and executors, an option to purcliase his share in the business at a fixed price. After his death the son elected to purchase, and paid part of the purchase money, but before the residue was paid he became bankrupt. The receiver in an action to administer W.'s estate claimed to have a charge upon stock in the possession of the son for the residue of tlic purchase money. Cave, J., distinguishing, and apparently doubting, Cohi(i-n r. CoUinti, xupra, held that as thei-e was no document signed by the bankrupt which could be registered as a Bill of Sale, the provisions of the Bills of Sale Acts did not apply (E.v parte Slater, re Webber, 1891, 64 L. T. 426). F., a printer, agreed to assign to the plaintiff bank, as security for an over- di'aft, a quantity of books which he had placed in the hands of (ribbings & Co. for sale. Two or three days afterwards he handed to the bank manager a notice, addressed to Gibbings & Co., as follows : " Please note that we have assigned our interest in the goods as per this invoice to ' the plaintiff bank,' to whom you will pay over proceeds of sales from time to time, rendering state- ment to us." Lord Russell, C. J., held that the verbal agreement was effectual as an equitable assignment by way of security of the goods ; that the notice of assignment was not an agreement between F. and the bank ; and that as the right to possess the goods was complete before the notice was given, and could be proved without reference to it, the document was not a Bill of Sale {London S,' York>ihire Bank, TArnited v. White, 1895, 11 T. L, R. 570). As to debentures and other charges by incorporated companies see notes to Section 17 of the Act of 1882, po.s/. (j) Assignments for the benefit of creditors, tiiough excepted Irom ilie l?ills of Sale Acts, require to be registered under The Deeds of Arrangement Act, 1887 (50 & 51 Vict. c. 57). The registrar of Bills of Rale is th(\ registrar for th(! ))ur))(jses of that Act. Tiie test wli(!ther an assignmeiil is witliin lliis exception i>r not iipjiears to be whether it is substantially foi' I lie liciiclil nf nil creditors ;ilikc, or wliei lici' there is anything in tlic (h'cd to cxcluilc ;niy rrcch'tm-, iw id ti'(';il (lilTcrcnt classes of (•i'('iter Loan Co., 1879, 5 Ex. D. 47). A conveyance or assignment of all a debtor's property for the benefit of creditors is an act of banki;uptcy (Bankruptcy Act, 1883, Section 4, Sub-section 1 (a), ante,^. 118; Button v. Morrison, 1810, 17 Ves. 193 ; Ej) parte Foley, re Spachmin, 1890, 24 Q. B. D. 728) ; but cannot be taken advantage of by parties thereto as ground for a petition (E.n parte Stray, re Stray, 1867, L. R., 2 Ch. 374). Trustees under such a deed ought not to deal with the projjerty until it appears whether any creditor will present a petition witliin three months (Cave, J., in E,r parte Foley, siipra). Trustees or assignees of the estate of the gi-antor under an assignment for the benefit of his creditors are among the persons as against whom an unregistered Bill of Sale is to be deemed fraudulent and void under this Act (see Section 8, post). (/r) Post-nuptial settlements are, in general, not "marriage settlements" within the meaning of this exception (Fonder v. Fo.'^tcr, 1859, 28 L. J., Q. B. 210; and other cases, ante, p. 22). A settlor had contracted to purchase certain furniture. A fcnv days before liis marriage he executed a settlement wh(>rel)y he a.ssigned it to trustees for his intended wife, with power to them to substitute other furniture. After the marriage the bargain went off ; but other furniture was bought ; a schedule was di-awn up, and apjjroved and signed by the trustees, and a memorandum of substitution was endorsed on the deed of settlenu-nt. In an interpleader issue between an execution creditor of the husband and the trustees for the wife, it was held by the Court of Appeal that the trustees wei-e entitled to the furniture. The ground of the decision appears to have been that the memoi'andum of substitution was either a post-nui)tial settlement executed in pursuance of an ante-nu])tial agreement, or merely evidence of the exercise of the power of substitution whicii might have be(>n effected without any writing. In either case it would b(! within this exception ((Uiurcicr r. Bard Hi, 1883, 27 Sol. J. 270). A memf)randum of agrccuiciH i'oi- a inaiTiage s(-( t Icincnf . though informal :iimI not under sciil. is ;i " iiuii-riage settlcincnl " williiu this exception. By a incirioianduni of jigrccmciit, which recited an iiitcii(U'(l marriage, it was agreed EXCEPTIONS: TRANSFERS OF SHIPS OR VESSELS. 161 that if the marriage should take effect all personal chattels and effects of the intended husband should be assigned to a trustee Sect. 4, upon trust for the wife and the children of the marriage. It was Note (A). agreed that the husband should, at any time after the solemnization of the marriage, and immediately upon the request of the wife, sign, seal, and deliver a proper deed of settlement of the property*, containing such clauses and pro\'isious as the solicitors for the parties should deem necessary and proper for carrying the trusts into effect. The trustee was held to be entitled to furnitux-e under this agreement as against an execution creditor of the husband. " Marriage settlement," said Pollock, B., " is a well-known term, and in my opinion the object of the Act was not to include one form of such instru- ment and e.Kclude another, but to secure to marriage settlements the position which they in reality hold : viz., of instruments the intention and effect of which is not that of mere assignments of goods from one person to another, but to create a trust for the purpose of carrying out a provision for a marriage" (Wen- man V. Lyon, 1891, 1 Q. B. 63-i ; affirmed by Coui-t of Appeal, 1891, 2 Q. B. 192). Marriage settlements, though excepted from the Bills of Sale Acts, may in some cases be set aside under the Statute 13 Eliz. c. 5. But the consideration of marriage vs-ill support a settlement against the husband's creditors, even if the settlor was, to his wife's knowledge, indebted at the time, provided the marriage has been honestly conti-acted {Campion v. Cotton, 1810, 17 Ves. 263; Fraser v. Thoinpifon, 1859, 1 Giff. 49). Even if he was insolvent the settlement may be valid, if the wife has acted hoii'i fide and the settlement is one which she might reasonabh' suppose to be fair and proper (Ex parte McBurnie, 1852, 1 De G. M. & (i. -4-41). But if the wife is party to a design to defeat or delay creditors, or to make the celebration of marriage part of a scheme to protect px'operty against the rights of creditors, the consideration of marriage will not support it (Colombine V. Penhall, 1853, 1 Sm. & Giff. 228; Bulmer v. Hunter, 1869, L. R., 8 Eq. 46; Parnell v. Sieadman, 1883, 1 C. & E. 153; Ex parte Pennington, 1888, 5 Mor. 268). If the wife entered into the settlement with knowledge of an act of bankruptcy pi-eviously committed by the husband, to which the trustee's title relates back, the settlement will be set aside in bankruptcy (Eraser v. Thompson, 1859, 4- De G. & J. 659). As to the avoidance of marriage settlements in bankruptcy see also Section 47 of The Bankruptcy Act, 1883 (ante. p. 123), and E,c parte Bolland, re Clint (1873, L. E., 17 Eq. 115). (?) The question has been raised whether an unfinished ship is within this exception : but no decision was given on the point, since it was held that the equitable mortgagee had taken actual possession before the tiling of the liquidation petition by the shipbuilder (Ej: parte Hodgl-in, re Softley, 1875, L. R., 20 Eq. 746). A shij) built in order to be sold to a foreigner, and to be delivered to him at a foreign port, has been held to be within the exception; and an unregistered agreement, whereby the builders charged all their right, interest, and lien to their bankers to secure advances, and agreed, upon request, to execute any such assurance of the ship as the bank might require, was held to be good against an execution creditor. The Court of A])peal held that the ship was not a Britisli ship, and that registration under The Merchant Shipping Act, 1854, was not necessary. They also declined to hold that the Bills of Sale Act and the Merchant Shipping Act were conterminous, or to limit the present exception by implying the words " transfer or af^signment of a ship pursttaut to t}te Merchant Shipping Act." Brett, L. J., oV)served : " The Bills of Sale Act excepts all ships — that is, whether British ships or foreign ships, or whether registered ships or not registered ships. Therefore, although the sliij) is not registered, and although the transfer is not within the Merchant Shii)])ing Act, yet it is a ship, and is excepted from the Bills of Sale Act ; therefoi'e a ship not registered is a thing 162 BILLS OF SALE ACT, 1878. the transfer of ■which is not dealt with either by the Merchant Sect. 4, Shipping Act or the Bills of Sale Act, and therefore the transfer Note (/). is governed by the Common Law, and is good, although there has been no registration " (Union Bank of London v. Lcnanton, 1878, 3 C. P. D. 243). It should be added that the mortgagee had taken possession before the execution, though the point is not referred to in the judgments. A dumb barge propelled by oars, plying on the Thames, and carrying goods, wares, and merchandise, without passengers, is a " vessel " within this exception. Hence a mortgage of such a barge has been upheld against an execution creditor of the mortgagor, though not in the form prescribed by the Act of 1882 (see ante, p. 35). The mortgagee had registered the barge in his name in the books of the Company of Watermen and Lightermen of the River Thames. It was again argued that the exception referred to transactions which required registra- tion under the Merchant Shipping Act; but the Court of Appeal (following Union Bank of London v. Lenanton, xiipra) again held that the words were not to be so limited. Lord Esher, M. R., observed that the words " ship " and "vessel" were to be taken in their popular sense: "Nobody would call a raft or a Thames wherry a vessel, but anything beyond a mere boat is, to my mind, ordinarily called a vessel, and is brought within the exception" (Gapp v. Bond, 1887, 19 Q. B. D. 200). The reason for the exception may, perhaps, be that the Act of 185-i M^as limited to Bills of Sale of chattels " capable of complete transfer by delivery " and ordinarily so transferred, whereas, long before that Act, the property in ships ordinarily passed by deliver}^ of a Bill of Sale (see Atkin>--on v. Malinq, 1788, 2 T. R. 462). Transfers or mortgages of British ships or shares therein ai-e now regulated by Sections 24 to 38 of The Merchant Shipping Act, 1894. Equitable charges may be effected without any registered security (In re Panama ,^'c. Royal Mail Co., 1870, L. R., 5 Ch. 318), but will be postponed to a later legal mortgage in the statutory form and registered, even if the legal mortgagee has notice of the charge (Black V. William^:, 1895, 1 Ch. 408). A mortgage of a " ship and its appurtenances " includes all articles and materials, whether stored or in use, necessary for the accomplishment of its voyage and on board at the date of the mortgage, and also all articles and materials substituted therefor subsequent to the date of the mortgage. The mortgagee is entitled to such articles as against execution creditors of the mortgagor (Coltman v. Chamberlain, 1890, 25 Q. B. D. 328). But there seems to be no reason to doubt that if such articles (e.g. a chronometer, see Reeves v. Capper, 1838, 5 Bing. N. C. 136) were separately assigned or charged by a Bill of Sale registration would be necessary under the Bills of Sale Acts. (m) It is not quite clear to what transactions the words " transfers in tlie ordinary course of business " refer. It was held, under the Act of 1854, that a letter of hypothecation, by which a factor and warehouse-keeper pledged certain wools in his possession to his bankers to secure an advance, constituted a good equitable charge which did not require registration, the advance and charge having been made in the ordinary course of business (Ex parte North-Western Bank, re Slee, 1872, L. R., 15 Eq. 69). This case was followed in an Irish case where one firm had sent linen to another firm to bo bleached, and both firms executed a deed whereby the bleachers undertook to hold the goods for a bank to secure advances made to the ownei-s, Sullivan, M. R., expressing the opinion that a security given to a bank by a trailer for a bond fide advance on goods was a ti'ansfer in the ordinary course of business (Merchant Banking Co. of Tjondon V. Spotten, 1877, 11 Jr. Rep. Eq. 586). But it has been said that such cases are now brought within the Acts by the words " any agreement by which a right in EXCEPTIONS : GOODS IN FOREIGN PARTS OR AT SEA. 163 Equity to any personal chattels, or to any charge or security thereon, shall be conferred" (see Beeves v. Barlow, 1883, 11 Q. B. D. (510; Sect, i, and note (i), supra). Note (m). Kay, J., has expressed the opinion that the words must mean " in the ordinary course of the vendor's business, not of that of an agent (such as an auctioneer) apjjointed to sell for him," and, consequently, that a sale by auction is not within this exception (In re Roberts, Evans v. Roberts, 1887, 36 Ch. D. 196). The Privj' Council have expressed the opinion that the word " goods " in this context does not include growing crops, and that the phrase "does not point to the borrowing of money on mortgage or special agreement, though .such a thing may be fre([ucnt among certain classes of persons " (Tennant v. Hoicatsoji, 1888, 13 App. Ca. 489). On this ground an agreement whereby a firm of sugar planters, in consideration of advances, assigned a growing crop of sugar, and agreed to ship the maimfacturcd product to the lender, who was to sell and apply the proceeds to the re])apncnt of the advances, was held not to be a "transfer in the ordinary course of business," nor a document " used in the ordinary course of business as proof of the possession or control of goods, or authorising, or purporting to authorise, either by indorsement or delivery, the possessor of such document to transfer or receive goods thereby represented" {Tennant v. Hoicatson, sjtpra). In some trades there is a custom for manufacturers to sell quantities of goods which are appropriated to the contract, but remain in the vendor's possession, the purchaser sending delivery orders from time to time as the goods are required. Such a custom was proved to exist in the wine and spirit trade in Ex parte Watlcins, re Couston (1873, L. R., 8 Ch. 520), where the question turned on reputed ownership of goods remaining in the bonded warehouse of the vendor (see also Ex parte Vavx, re Couston, 1874, L. R., 9 Ch. 602). Again, there may be a sale of a chattel, such as a horse or a boat, which is left in the possession and charge of the vendor, as bailee, whenever it is not in use. Perhaps the words in question may have been intended to except such transactions froni the operation of the Acts. (») The term "foreign parts" appears to include Scotland and Ireland. The Acts do not apply to a Bill of Sale given in England by one domiciled Englishman to another of personal jDroperty situate in Scotland. Thus, when a debtor handed to his creditor a minute of lease of a house and land in Scotland of which he was lessee, together with a memorandum whereby he agreed to pledge the lease and certain chattels in the house as security for the debt, it was held that the creditor had a good charge on the chattels and on moneys receivable for improvements under the lease as against the trustee in liquidation of the debtor ; although by the law of Scotland the memorandum and deposit created no security (Coote v. Jecks, 1872, L. R., 13 Eq. 597). A duly registered Bill of Sale, comprising certain chattels in England and also certain pictures then temporarily on exhibition in Dublin, was made between two persons domiciled and resident in England. An English creditor obtained a judgment against the grantor in England, and having enrolled it in Ireland under The Judgments Extension Act, 1868, issued execution. It was held that the Bill of Sale, though not registered in Ireland, protected the jiictures in Dublin against the execution creditor ; and Harrison, J., citing Coote v. Jecks, supra, expressed the opinion that registration even in England was not requisite (Brooks i-. Harrison, 1880, 6 L. R. Ir. 85; affirmed bv C. A., ihid.332). The exception of Bills of Sale of goods at sea is extended by the Acts of 1890 and 1891, jjo.^-f, to instruments dealing with imported goods " prior to their deposit in a warehouse factory or store, or to their being reshipped for export or delivered to a purchaser not being the person giving or executing such instrument." 164 BILLS OF SALE ACT, 1878. (o) This exception was probably intended to apply to cases Sect. 4, where persons familiar with business would know that they Note (o). ought to inquire after the indicia of title before inferrint; that the person in possession of goods is the real owner. Probably the exception was hardly necessary, The delivery of the documents referred to is equivalent to the delivery of symbolical or constructive possession ; and a security effected by transfer of a delivery order or a similar document is essentiallv a security dej^endent on possession to which the Acts do not apply. Thus, in Ex parte Pur.'^ous, re Toicnsend (1886, 16 Q. B. D. 532), Lord Esher, M.R., expressed the opinion that the case of Ex parte Close, re Hall (1884, 14 Q. B. D. 386; ff/ifp, p. 46), ought to be supported on the ground that the document was within the present exception. But the real ground of the decision was that it was a transaction of pledge, and the case is so understood in later cases (see, e.g., Ex parte Huhhard, re Ilardwich, 1887, 17 Q. B. D. 690). Similar cases have also been dealt with on the same broad principle without reference to this exception (see, e.g., Grigg v. National Guardian, Assurance Co., 1891, 3 Ch. 206 ; ante, p. 50). (p) This definition of personal chattels, when read into Section 8, post, defines the range of the penal consequences imposed by this Act. A Bill of Sale comprising personal chattels along with other property is under this Act void only as to the former, and only if they are in the possession or apparent possession of the grantor at the critical date. But by Section 5, post, trade machinery is in certain cases to be " deemed to be personal chattels." This definition is of still greater importance under the Act of 1882. If a Bill of Sale under that Act purports to assign any property other than personal chattels it is thereby rendered void as to personal chattels comprised in it, as departing from the statutory form (see Section 9 of the Act of 1882, post ; and as to the inclusion of other property in the schedule, the deed itself being in accordance with the statutory form, see notes to Section 4 of that Act). {q) The Act of 1854 related only to goods, furnitiire, fixtures, and other articles "capable of complete transfer by delivery." On this ground it was held not to include growing crops (see note (s), infrn). In Brantom v. Griffits (1876, 1 C. P. D. 349), Brett, J., expressed the opinion that the words " capable of complete transfer by delivery " meant capable of delivery " n-hen the Bill of Sale is given, and the provisions of the Act are to be applied to it." This is approved and adopted by Lord Macnaghten in Thomas v. Kelly (1888, 13 App. Ca. 506), where it is elaborately argued that the definition of personal chattels excludes future or after-acquired chattels. It is conceived, however, that this view is not strictly accurate. This Section gives a mere definition, which has no force except as read into Sections 3 and 8. Section 3 applies the provisions of the Act to Bills of Sale, whereby the holder has power either immediately or at any future time to take possession of personal cihattels — an expression which is (|uite consistent with the view that a Bill of Sale (apart from the Act of 1882) may comprise chattels not yet in existence. Section 8 contemplates (1) Bills of Sale which bind the jiropcrty, and (2) Bills of Sale which give a right to the possession ; and the language suggests that the time to which the Act looks is the time when a contest arises between a person claiming chattels under a Bill of Sale on the one hand, and an execution creditor or the assignee in bankru])tcy &c. of the grantor on the other. The words may therefore mean " capable of complete transfer by delivery " at any time before that contest arises. If so, it is immateria) whether the; chattels were capal)le of delivery, or even in existence, at the date of the Bill of Sale. The (|ucsti()ii is of inqjortancc ["this very grave point" (per Curiam in Ihwves v.Barloir, 1883, 12 Q. B. I). 436)], because it vv'ould follow from Lord Macnaghten's argument that Bills of Sale of fntnro-acfiiiircd property would not require registration under this Act. instruments charging or assigning future property DEFINITION OF PERSONAL CHATTELS. 165 wore well-known to the law when this Act was passed (see note, ««fe, p. yi); the grantee would therefore have a good title, Avhicli Sect. % the Act could not avoid. It is conceived that the opinion Note (7). expressed by Lord Chelmsford in Holroyd v. MarxhaJl (1862, 10 H. L. C. 227) is the sounder view. " It was argued," said Lord Chelmsford, •• that the Bills of Sale Act was intended to apply to Bills of Sale of actually existing property only, and it probably may be the case that sales of future property were not within the contemplation of the Legislature ; but there is no ground for excluding them from the provisions of the Act." If the Legis- lature had intended that unregistered Bills of Sale of future-acquired property should not be liable to be avoided under this Act, it would probably have expressed its intention in some direct form. A Section was inserted ia the Act of 1882 making Bills of Sale in security for money wholly inoperative (with certain exceptions) as regards future-acquired property. But the point of view is entirely different. The grantee has no title, except as against the grantor, even if the Bill of Sale is registered (see ante, p. 3; see also notes to Section 5 of the Act of 1882; and particularly as to future crops see note (c) to Section 6 of that Act, po«f). The question whether an undivided share in a chattel (e.g., a horse) admits of delivery or is to be regarded as incorpoi-eal and incapable of tradition was left undecided by the Court of Ajjpeal in Cochrane r. Moore (1890,25 Q. B. D. 57). But an undivided share in a chattel may be assigned by a Bill of Sale (see arde, p. 100). (/•) For some notes on the general law of fixtures, see ante, pp. 80 to 84; and as to the application of the Act of 1854 see ante, pp. 8-4 to 89. The language of the Section deserves very careful attention. The Section lays down two rules — one affirmative, the other negative. Fixtures are declared to be personal chattels when separately assigned or charged — an expression which is explained in Section 7, po^t. When they are not separately assigned or charged — in other words, when an interest in the land or building ])asses by the same instrument, fixtures are not personal chattels. From the latter rule, hut not from the former, trade machinery is excepted; it is defined and provided for by Section 5, post. If regard is had to the language of the Section the whole of Section 5 apj)ears to be logically dependent upon this latter rule. In other words Section 5 refers to fixed machinery disposed of in a conveyance of the land or building ; it has nothing to do with trade machinery or any other fixtures, when separately assigned or charged. This construction appears to have been overlooked (see notes to Section 5, post), and should therefore be regarded very critically. If it is sound, it determines whether an instrument dealing with trade machinery is a Bill of Sale vvithin Section 4, or is deemed to be a Bill of Sale within Section 5. This distinction is of great importance with reference to the application of the Act of 1882 (see notes to Section 5,posf). As regards substituted fixtures, plant, and trade machinery comprised in Bills of Sale in security for money see Section 6 of the Act of 1882, post. (.<) For some notes on the general law relating to growing crops see ante, pp. 78 to 80. Growing crops were not personal chattels within the Act of 1854, not being capable of present delivery and removal {Brantom v. Griffits, 1877, 2 C. P. D. 212; affirming 1 C. P. D. 349). This Section makes them personal chattels when separately assigned or charged. The expression is explained by Section 7, jwst. In general terms, it means that growing crops are not within the Act if an interest in the land passes to the grantee under the same instrument. Growing crops are separately assigned Avithin the meaning of the Act, although assigned together with other goods and chattels of the grantor (Rohert.< v. Roberts, 1884. 13 Q. B. D. 794). As to Bills of Sale in security for money which comprise future crops, or crops not specifically described in the Schedule, see Section 6 of the Act of 1882, i^ost. (/) For sonic notes on Choscs in Action see ante, pp. S9 to 91. 166 BILLS OF SALE ACT, 1878. ((() "Stock or produce" here means "produce already severed Sect. *, from tlie land, and which might be delivered, although by the covenant Note (m). or custom it ought not to be removed from the farm " (Brett, J., in Brantom v. Griffits, 1876, 1 C. P. D. 349). The Act 56 Geo. III. c. 50, s. 11, provides: "And be it further enacted, that no assignee of any bankrupt, or of any insolvent debtor's estate, nor any assignee under any Bill of Sale, nor any purchaser of the goods, chattels, stock, or crops of any person or persons engaged or employed in husbandry on any lands let to farm, shall take, use, or disjjose of any hay, straw, grass or grasses, turnips or other roots, or any other produce of such lands, or any manui-e, compost, ashes, seaweed, or other dressings intended for such lands, and being thereon, in any other manner, and for any other purpose, than such bankrupt, insolvent debtor, or other person so employed in husbandry ought to have taken, used, or disposed of the same, if no commission of bankruptcy had issued, or no such assignment or assignments had been executed, or sale made." As to this enactment see Lyhbc v. Hart (1885, 29 Ch. D. 8). Evidence that it is customary in a district for goods (such as hay) to remain on the premises of the vendor until the time of year when it is convenient to remove them is not enough to bring a sale within this exception (see In re Roberta, Evana v. Roberts, 1887, 36 Ch. D. 196). But such evidence is enough to exclude the reputed ownership clause (see Priestley v. Pratt, 1867, L. K., 2 Ex. 101). (v) The definition of apparent possession has no application to Bills of Sale which are within the Act of 1882. In this Act it is to be read into Section 8, by which unregistered Bills of Sale are made void as against certain persons in respect of chattels which at the critical date are in the "possession or apparent possession " of the grantor. The definition refers to two sorts of apparent possession : (1) Where the chattels are upon premises occupied by the grantor ; (2) Where they are used and enjoyed by him in any place whatsoever. The qualifying words " not- withstanding that formal possession thereof may have been taken by or given to any other person " appear to apjily in both cases. The construction of the first part of the definition is that the goods shall be deemed to be in the ajiparent possession of the grantor as long as they are on the premises occupied by him, if there has been nothing more done to them than mere "formal" possession taken (Braniwell, B., in Gough v. Everard, 1863, 32 L. J., Ex. 210 ; adopted by the Court of Exchequer in Smith v. Wall, 1868, 18 L. T. 182). To bring a case within this rule, there must bo de facto occupation ; the premises must be occupied by the grantor in the ordinary sense of the term, and not merely as having a legal interest in a lease (Martin, B., in Davies v. Jones, 1862, 7 L. T., N. S. 130 ; Robinson v. Briggs, 1870, L. II., 6 Ex. 1, •post, p. 167 ; Ex parte Morrison, re Wesiray, 1880, 42 L. T. 158, post, p. 168). The grantees of a Bill of Sale put an agent in possession to carry on the business for them, and added largely to the stock-in-trade by purchases out of their own funds. The grantor left the premises on the execution of the Bill of Sale, but his name remained over the shop door, and his daughter continued to live in the house. It was held that there was a complete change of possession and ownership, that the grantees had openly, really, and truly taken posses- sion, and that the Act did not apply {Davies v. Jones, 1862, 7 L. T., N. S. 130). So, where a person sold the furniture and effects in a dwelling-house and counting-house then occupied by him, and after the sale the vendor ceased to use the premises, and the purchaser had the use of them, having agreed to pay tlie rates and taxes, and paying the wages of the vendor's servant who roniaincHl in the house, it was ludd that the grantor's occu])ation and ii]iiiareiit jKJSHessioii had ceased (Goiigh r. Kvcrard, 1863, 32 L. J., Ex. 2J0). Wlicii tinibcu- DEFINITION OF APPAIiENT POSSESSION. 167 lyinc^ on a private wharf of the vendor was sold, and the key of the wharf was delivered to the purchaser, who resold some Sect, i, of the timber, the Court of Exchequer held that actual posses- Note (v). sion had been taken so as to prevent the operation of the Statute (Goityh v. Everard, ante). The g'rantee of a Bill of Sale put a man in possession of the goods on the loth May ; the doors were kept locked and the business stopped, the key of the premises being kept by the man in possession. On the 17th notices were posted outside the house and in the neighbourhood announcing a sale of the goods on the 24th instant, and the catalogue stated that the sale would take place under a Bill of Sale. The grantor — an infirm old man — was allowed to remain on the i^reniises, on the plea that he could not get lodgings elsewhere. Between the 17th and 24th an execution was put in, the bailiff j^rocuring admission by knocking at the door and forcing his way in when it was opened. It was held that more than formal possession had been taken, that an actual and real possession and control was, in fact, taken and kept by the grantee, and that public notice of this was given by the catalogues announcing the sale bv auction {Sinith V. Wall, 1868, 18 L. T. 182). The grantor of an unregistered Bill of Sale was tenant of rooms where the chattels were placed, but he resided else- where. Having made default, he gave up the keys of the rooms to the grantee, who opened the rooms, and put his own name on some of the goods. None, however, -vyere removed ; and they were afterwards taken under a fi. fa. against the grantor. In an action of trespass by the grantee against the Sheriff, it was held that the gi'antor did not "occupy" the rooms, and that the grantee had done all he was called upon to do to reduce the goods into his own possession (Rohiuson v. Briggs, 1870, L. R.. 6 Ex. 1). Difficult questions of fact frequently ai'ise in determining whether more than formal possession has been taken of chattels which remain on the premises occupied by the grantor. The distinction between real and formal possession is this : " That if a broker is simply put in, and remains in ijossession so as to prevent the removal of the furniture, but allowing everything to go on just as it did before, permitting everything to be used by the debtor and his familj^, then the goods still remain in the apparent possession of the debtor. There must be something done which takes them plainly out of the ajiparent possession of the debtor in the eyes of everybody who sees them " (Mellish, L. ,T., in Ex parte Jay, re Blenkhorn, 1874, L. R., 9 Ch. 697 ; see also Lush, L. .J., in Ex parte Saffery, re'Brenner, 1881, 16 Ch. D. 668). When the grantee of a Bill of Sale of household furniture and effects immediately sent a person into the house to take and keep possession, but down to the date of his bankruptcy the grantor continued to live in the house and use the furniture as before, the possession or apparent possession of the bankrupt was held to continue (Er parte Hooman, re Vining, 1870, L. R., 10 Eq. 63). The grantee of a Bill of Sale of furniture sent in a broker's man, who took possession of the goods and remained on the premises, but slept in an upper room, and allowed the grantor to remain in the full use and enjoyment of the furniture exactly as before. Three weeks afterwards placards were posted in the neighbourhood of the house announcing a sale of the furniture, but with the exception of a reference to a firm of solicitors for particulars there was nothing to show that the sale was not made by the debtor himself. It was held that the possession of the broker's man was a mere formal possession, and that the placards were not enough to terminate the possession or apparent possession, inasmuch as they did not show that the sale was to be made under a Bill of Sale {E.V parte Lewi!', re Henderxou, 1871, L. R., 6 Ch. 626). But where the grantee takes possession of the goods compi'ised in the Bill of Sale, and advertises them for sale as the goods of the grantor, sold under a Bill of Sale, the goods are no 168 BILLS OF SALE ACT, 1878. longer in the ajaparent possession of the grantor, even though thoy Sect. 4, remain in his house {Emmanuel v. Bridges, 1874, L. R., 9 Q. B. 286). Note (u). Where the grantee on the 10th of February sent two men to take possession, who remained in the house, but allowed the debtors and their family to use the goods as usual until the 14th, when they began to pack the furniture and load it into vans sent by the grantee for the purpose, it was held that the furniture remained in the apparent possession of the debtors until the 14th, but ceased to be so when the men in possession began to jiack the goods and put them in the vans {Ex parte Jay, re Blenklwni, 1874, L. R., 9 Ch. 697). A person — M. — had for some months superintended the business of the grantor of a Bill of Sale on behalf of the grantees and other creditors, but the business was ostensibly carried on by the grantor. An order was made appointing M. receiver on behalf of the grantees " upon his giving security," but nothing was done to inform the public or persons dealing with the grantor that a receiver was in possession. Before the appointment was completed by giving security an execution was issued. It was held that the possession of the receiver was a mere nominal possession. " The possession," said James, L. J., " is that of a man who, before the institution of the suit, went to the place two or three times a week, and afterwards went every day. It is not alleged that he ever paid the wages, or did any act showing him to be in possession." Mellish, L. J., was also of opinion that the possession taken was merely formal, " nothing having been done to show the world at large that there was any change of possession" (Edwards v. Edwards, 1876, 2 Ch. D. 291). Where the grantee jjut a man in possession, who prevented the gi-antor's clerk from removing the goods, but the house belonged to the grantor, who had a key of it, and went in and out as he pleased, though sleeping elsewhere, the goods were held to be in the possession, or at least the apparent possession, of the grantor {Seal v. Claridge, 1881, 7 Q. B. D. 516). The decision in Ancona v. Rogers depends rather on possession than on apparent possession. The grantor of a Bill of Sale had sent the goods to a house in Cornwall where she intended to reside. The occupier of the house allowed the goods to be placed in four rooms. The messenger locked the doors of the rooms, and took away the key. Until the grantor filed a liquidation petition, the goods remained in the rooms so apiDropriated to their reception and custody. Before the filing of the petition, the grantee demanded possession from the occupier, and even threatened to take the goods by force ; but the occupier refused to allow him to enter the house or to take ijossession. The Court of Appeal held that possession of the rooms had been delivered to the grantor for the purpose of keeping the goods, the key having been virtually delivered to her agent ; and, tlierefore, that the grantor, and not the occupier of the house, was in possession of the goods. The Court also held that even if they were in the possession of the occupier of the house as bailee, they were still in tlie " possession " of the grantor within the meaning of the Act, and that the demand of possession by the grantee did not take the goods out of the grantor's possession (Ancona v. Rogers, 1876, 1 Ex. D. 285). The mortgage of a house and furniture was not registered as a Bill of Sale. The mortgagor, with the consent of the mortgagee, let the house and furniture for six months. Before the tenancy expired, the mortgagor became bankrupt, and on its expira- tion the mortgagee at once took possession. It was held that the mortgagor's right to receive the rent did not make him the occupier, and that the premises were not occupied nor the furniture used and enjoyed by him ; and, therefore, that the mortgagee was entitled to tlic furniture as against the trustee (Ex parte Morrison, re Wesfray, 1880, 42 L. T. 158). A mortgage of ironworks, comprising plant and machinery, was not registered as a Bill of Sale. Before tlie filing of the mortgagor's petition, the agent of the DEFINITION OF APPARENT POSSESSION. 169 mortgagees posted up at the entrance, and also inside the works, printed notices wliich stated the effect of the mortgage deed, its Sect, i, date, and the names of the mortgagees, and gave notice that Note (v). the mortgagees had, by their solicitors and agents, entered into and retained possession of the land and buildings and of all and singular the plant, machinery, fixtures, materials, tools, and implements thereto belonging. He also demanded possession, and required that the works should be stopped and the workmen dismissed. The mortgagor was not then in default, and the mortgagees were not entitled to possession under the mortgage deed. The Court of Appeal held that the agent had not succeeded in obtaining actual physical possession of anything, and therefore that the question whether the possession was merely formal did not arise. " Under the Bills of Sale Act," said James, L. J., " it is quite clear that there must be an actual possession, and that not of a merely formal character. Here there was not any actual jjossession ; there was only an attempt to get possession — an illegal attempt wlii-ch failed." Mellish, L. J., expressed the opinion that though actual possession might exclude the operation of the Act, even if taken wrongfully, yet a wrongful possession would not be extended by construction beyond the actual plivsical possession (Ex parte Fletcher, re Henley, 1877, 5 Ch. D. 809). The grantee of a Bill of Sale obtained an order restraining a sale of the goods which had been advertised to take place on the 8th of March, and appointing him receiver. His appointment as receiver being completed, the grantee, at 9.45 a.m. on the 8th of March, entered upon the j^remises where the goods were. The man there in joossession on behalf of the grantor refused to withdraw, and, in fact, remained until 3 p.m. But the grantee formally took possession, warned those present that any interference on their part would be a contempt of Court, and stopped the proposed sale. The grantor having committed an act of bankruptcy about 2 p.m.. Hall, V. C, held that sufficient possession had been taken by the grantee to take the goods out of the apparent possession of the grantor, and that it was not necessary that exclusive possession should have been obtained {Bnrrou v. WiUiamii, 1878. L. J. N. 127). The grantees of a Bill of Sale put a man in possession on Saturday. On the Tuesday following the grantor filed a liqui- dation petition. The evidence showed that the man in possession locked up the premises at night, and took away the keys. One of two servants was discharged on Monday, and on Tuesday he assisted an auctioneer who had been seiit by the grantees to take an inventory. The fact of possession having been taken by the grantees was matter of general talk in the town on Sunday and Monday. On the other hand, the man in possession seldom or never appeared in the shop, but remained in a warehouse on the premises out of sight of customers ; the business appeared to go on as usual, and no notification was made to the public. On these facts Bacoii, C. J., held there was no apparent possession by the debtor after the seizure {Ec parte Mortlock, re Banhani, 1881, W. N. 161). The grantee of an Absolute Bill of Sale of certain furniture, including valuable wine in a cellar, arranged to leave the grantor in possession for some weeks, and the grantor agreed to leave before the 9th April, so that the grantee could then enter and arrange for a sale. On 9th April the grantee went to the house with a possession man and a clerk ; and, though the grantor had not left, but pleaded for delay, the grantee got possession of the key of the cellar, and at once, began to lot and catalogue the furniture. Shortly afterwards the Sheriff entered with an execution, and, seeing the grantee and his men so engaged, said, " I suppose you are here on the same business as I am." On these facts the jury found that the grantee had taken actual possession and dis- possessed the gi-antor ; and Watkin Williams, J., gave judgment for the grantee. 170 BILLS OF SALE ACT, 1878. notwithstanding the fact that the goods remained in tlic house of Sect. 4, the grantor (Rohinson v. Tucker, 1883, 1 C. & E. 173). Note (v). If the grantor is actually in occupation, it is not an answer to say- that he occujaies merely as servant of the grantee. The grantor of a Bill of Sale of household furniture managed a business as servant to the grantee at a weekly salary, and was allowed to reside in the house where the business was carried on, with the use of the furniture as part of his salary. The grantee resided elsewhere. It was held that the furniture was in the possession of the grantor (Pickard v. Marriage, 1876, 1 Ex. D. 36J^). A business was sold by an unregis- tered deed, and it was arranged that the grantor and his wife should remain on the premises as servants of the grantee at fixed wages. But the grantee took possession by going round the premises with the inventory ; the words "and Co." were added to the name over the door; circulars were sent to creditors and others ; and advertisements were published in the local papers. It was held that the grantor of the deed was no longer in possession or apparent jiossession (Gihhonn v. Hicknon, 1885, 53 L. T. 910). The second kind of apparent possession is when chattels are " used and enjoyed by the grantor in any place whatsoever." When timber lying on a public wharf was sold by an agreement in writing, and the purchaser did nothing with reference to it except taking persons to look at it with a view to its sale, the key of the wharf remaining in the hands of the wharfinger, it was held that the possession as well as the pi'operty passed to the purchaser by the sale, and that there was no evidence to show any " apparent possession" in the seller (Gough v. Everard, 1863, 32 L. J., Ex. 210). Chattels in the possession of a bailee for the grantor are in his apparent possession while he is having them kept for him and is exercising dominion over them {Ancona v. Rogers, 1876, 1 Ex. D. 285; ante, p. 168). Thus, where a person in custody on a criminal charge executed a Bill of Sale of certain jewels of which the police had taken possession, and was afterwards adjudicated bankrupt on his own petition, it was held that the jewels were then in his apparent possession (E.t parte Newsham, re Wood, 1879, 40 L. T. 104). So, it has been held that pictures belonging to a person who is domiciled and resident in England remain in his ap})arcnt possession while they are temporarily on exhibition in Dublin (Morris, C. J., in Brooks v. Harrison, 1880, 6 L.R. Ir. 85; ante, p. 163). But if the bailee attorns to the title of the grantee, or himself claims under an adverse title, the chattels are taken out of the grantor's apparent possession {Ancona v. Rogers, sujxra). Where a firm of bleachers, who held linen on behalf of the grantors of a Bill of Sale of which they had notice, sent to the grantees, at their request, a list of the goods and an undertaking to hold them subject to" the grantees' lien, this was hold to be a novus actus which took the goods out of the apparent possession of the grantors (Merchant Banking Co. v. Spotten, 1877, 11 Ir. Rep. Bq. 586). The same principle seems to apply if the bailee is a party to the Bill of Sale, and executes it with an undertaking to hold the goods for the grantee; his possession then becomes, in truth, the possession of the grantee (ibid.). Goods delivered by the grantor, for purposes of sale by auction, to an auctioneer, who claims a lien upon them for advances and for the charges of an attenqited sale, arc not in the possession or apparent possession of the grantor (Lincoln Wagon Co. v. Mumford, 1879, 41 L. T. 655). Furniture demised to a tenant of the mortgagor is not in the mortgagor's apparent possession during tlie demise (E:r. parte Morrison, re ire.vi'ni ;/, .1880, 42 L. T. 158; ante, j). 168). The actual jwsscssion of a tliird party may thus enure to tlie advantage of the grantee by taking the goods out of the operation of the Act. Whethei- the actual possession of the Sheriif under an execution will exclude tlie operation n[ DEFINITION OF APPARENT POSSESSION. 171 the Act in the event of bankruptcy or a second execution is not so clear. The observations of Wightman, J. (Marples v. Hurtlei/, 18G1, Sect. 4, 30 L. J., Q. B. 92), and of Bramweil, B. (Banbury v. White, 1863, 32 L. J., Note (r). Ex. 258), that seizure by the Sheriff would prevent the goods being in the apparent possession of the grantor, must be read with reference to the fact of seizure within the time limited for registration. In Ex parte Mutton, re Cole (1872, L. 11., 1-4 Eq. 178), the Sheriff seized the goods on the 10th March ; on the 14th the grantee left a man on the promises jointly with the Sheriff's officer; on the 15th the grantor was adjudicated bankrupt, and the grantee afterwards, in ignorance of the adjudication, paid out the Sheriff's officer and entered into pos- session. Bacon, C. J., held that the goods were in the actual possession of the Sheriff and the apparent possession of the grantor at the date of the adjudication, that the Bill of Sale was void against the trustee, and that the pi-oceeds of the sale belonged to him, but chai'ged with the repayment to the grantee of the moneys paid by him to the Sheriff. In Ex parte Saffery, re Brenner (1881, 16 Ch. D. 668), when the petition for liquidation was filed, the Sheriff was in actual possession of the goods under an execution issued by the grantee of the Bill of Sale. It was held by the Court of Appeal that the goods were not in the possession or apparent possession of the grantor. Jessel, M. R., observed : " Actual possession he had none, for the Sheriff was in actual possession. And apparent possession cannot be put higher than actual possession. The only person who was allowed by the Sheriff to remove the goods was the execution creditor. The bankrupt was not there, and he had nothing to do with the goods. It is said that his name, with that of another person, was on the door of the workshop. But that alone is not enough to make the apparent possession his. The question is whether any person who went there would conclude that the bankrupt was in the sole possession of the goods, and it appears to me that he would not." The head-note to this case states the proposition : " If the goods comprised in an unregistered Bill of Sale are, at the time of the filing of a bankruptcy petition against the grantor, in the actual visible possession of the Sheriff under an execution issued either by the grantee or by a third person, they are not, even though the gi-antee has himself taken no possession, in the apparent possession of the grantor, and the Bills of Sale Act does not apply {Ec parte Mutton not followed)." This appeal's to go beyond the decision. Ex parte Mutton was almost certainly right under the Act of 1854, for the Bill of Sale was wholly av^oided by the execution (see notes to Section 8, post) ; and it would probably be followed under the Act of 1878 in similar circumstances (c/. the reasoning of Jessel, M. R., in E:c parte Firt]i. re Coichurn, 1882, 19 Ch. D. 419; and see Ex parte Blaiherij, re Toomer, 1883, 23 Ch. D. 254, noted under Section 8, post). The possession of chattels may be ambiguous. Thus, the possession of chattels by a cestui que trust, in accordance with the provisions of the trust, is in law for some purposes the possession of the trustee {Barker r. Furlong, 1891, 2 Ch. 172 ; see Chapuian v. Knight, 1880, 5 C. P. D. 308, ante, p. 101). Where chattels belonging to a father were mortgaged by Bill of Sale, and aftei-wards sold to his son by the mortgagees (who had taken possession), it was held by Brett, M. R., and Bowen, L. J., that they were in the possession of the son, not of the father, the son being the occupier of the house in which they both lived {Swire v. Cookson, 1883, 49 L. T. 736). But the House of Lords refrained from expressing any opinion on this point {Cookson v. Sicire, 1884, 9 App. Ca. 653). In another case Lindley, L. J., observed that " when the question whether goods which are the separate property of the wife are in the apparent possession of her husband who lives with her does arise, it will retiuiro very careful consideration " (Shepherd v. Pulhrook, 1888, 59 L. T. 288 ; compare the equally guarded remark of Lopes, L. J., in Raiusinj r. Manjrett, 1894, 2 Q. B. 18). 172 BILLS OF SALE ACT, 1878. It has been decided that where the possession of goods is Sect. 4, ambiguons as between husband and wife, the possession follows Note (v). the legal title to the goods {Ramsciy v. Margreff, ante ; cf. Kilpin v. Ratleij, 1892, 1 Q. B. 582). But this does not necessarily conclude the question of apparent possession. If it did, the effect would be to take out of Section 8 of the Act of 1878, in nearly every case, post-nuptial settlements and assignments between husband and wife. As to the distinction between "apparent possession" and "reputed owner- ship " see note to Section 20, j^ftt. (iv) Eules for the purposes of the Act are made under the powers of Section 21, 2^ost. Application 5. From and after the commencement of this Act («) tra'^e*'^" trade machinery shall, for the purposes of this. Act, be machinery, deemed to be jDei'sonal chattels (h), and any mode of disposition of trade machinery by the owner thereof which would be a Bill of Sale as to any other personal chattels shall be deemed to be a Bill of kSale within the meaning of this Act (c). For the purposes of this Act — " Trade machinery " means the machinery used in or attached to any factor}- or workshop ; 1st. Exclusive of the fixed motive-powers, such as the water-wheels and steam engines, and the steam-boilers, donkey engines, and other fixed appurtenances of the said motive-powers ; and, 2nd. Exclusive of the fixed power machinery, such as the shafts, wheels, drums, and their fixed appurtenances, which transmit the action of the motive-powers to the other machinery, fixed and loose ; and, ."Ird. Exclusive of the pipes for steam, gas, and water in the factory or workshop. The machinery or effects excluded by this Section from the definition of trade machinery shall not be deemed to be personal chattels within the meaning of this Act (d). " Factory or workshop " means any premises on which any manual laboui- is exei'cised by way of ti-ade, or for ]iurposes of gain, in or incidental to tlio following |tiir|)oses or any of tlicni ; that is to s;iy, (a) Til (If incidental to the iiuiking ;iiiy ai-ticlc ui' [liii'l of an article ; oi' DISPOSITIONS OF TRADE MACHINERY. 173 (n) In or incidental to the altering, repairing-, Sect. 5. ornamenting, linishing, of any article ; or (c) In or incidental to the adapting for sale any article (e). (a) Before this Act there was no distinction between trade machinery and other fixtures. The cases under the Act of 1854 relatino; to fixtures general]}' are summarised, ante, pp. 85 to 89. As to whether the distinction between trade machinery and other fixtures is applicable to instruments executed before the commencement of this Act in questions arising under any bankruptcy, execution, &c., after the commencement of the Act see note (c) to Section 7, post. (b) The construction of this Section is difficult, and raises some questions of great practical importance. The following suggestions give effect to all the words of the Act. But there are many expressions in the cases which are inconsistent with the views stated in this note. The first question is : What is the relation between this Section and the definition of personal chattels in Section 4 ? By an affirmative rule in Section 4, the term " personal chattels " includes fixtures when separately assigned or charged. By a negative rule the term does not include "fixtures (except trade machinery)" when assigned together ■with an interest in the land or building. Now, in the affirmative rule the word "fixtures," prima facie, includes fixed trade machinery, and this presumption is strongly confirmed by the fact that trade machinery is excepted out of the class of fixtures for the purposes of the negative rule. This is a simple application of the maxim : " E.rceptio prohat regnlam in iivn exreptis." Con- sequently, the affirmative rule applies to fixtures generally, including "trade machinery," and also " the machinery or effects excluded by this Section from the definition of trade machinery." The negative rule in Section 4 applies to "fixtures, (except trade machinery)." But it does not say that the term "personal chattels" shall include trade machinery when assigned or charged together with an interest in land. It merely leaves trade machinery to be defined and prwided for by the present Section. This Section is therefore derived out of the negative rule in Section 4, and must be read with it as complementary to the affirmative rule. " Trade machinery " and " excluded machinery " are (like any other fixtures) personal chattels when separateh' assigned or charged, ■\\nien an interest in the land or building passes by the same instrument, " trade machinery " is to be deemed to he personal chattels ; but the " excluded machinery " is not to be deemed to he personal chattels : in other words it is in the position of fixtures other than " trade machinery " within the negative rale in Section 4. This peculiar logical connection between Section 5 and Section 4 appears to have been generally overlooked. The next question is : What is the bearing of this Section on the necessity for registration and on the other requirements of the Acts ? Where " trade machinery " or " (>xcluded machinery " is separately assigned or charged the instrument deals with "personal chattels," and is a Bill of Sale within Section 4. If it is given as a security for money it is subject to the provisions of the Act of 1 882. It must be in the statutory form ; it must have a schedule specifically describing the chattels ; it is void, except as against the grantor, as regards after-acquired property, unless affixed in substitution for any of the articles described in the schedule (see Section (5 of the Act of 1882, jjost) ; and so on. 174 BILLS OF SALE ACT, 1878. Where an interest in the land or building passes by the same Sect. 5, instrument, the question arises : Does the instrument, besides Note (h). passing an interest in the land or building, contain also a mode of diapo.-^ition of '''' trade machinery" which would be a Bill of Sale as to any other personal chattels ? That is to say : Does it operate as an assurance of trade machinery, or a licence to take possession of trade machinery as security for a debt, or an agreement creating a right in Equity over trade machinery ? If the trade machinery merely passes by virtue of being fixed to the land or building, this question is answered in the negative, and the instrument does not need to be i-egistered (see note (c) infra). If the instrument does contain such a mode of disjiosition of trade machinery, it is deemed to he a Bill of Sale under Section 5. Under this Act, therefore, if unregistered, it is liable to be avoided in the event of execution or bankruptcy &c. (see Section 8, post). This is so whether the instrument is absolute or by way of security. There remains one question on which the cases are very unsatisfactory : How does the Act of 1882 affect instruments which are deemed to be Bills of Sale under this Section ? At least three views are possible : (1) There are expressions in some of the cases which imply that such instruments, if given by way of security for money, are within the Act of 1882 for all pui-poses, and would be void under Section 9 if not in accordance with the statutory form. (2) It is possible to contend that instruments by way of security are within the Act of 1882 for purposes of registration only, and if unregistered would be void in I'espect of the ti'ade machinery under Section 8 of that Act. The same words " deemed to be a Bill of Sale," which .occur in Section 6, post, have been so explained in Green v. Marsh (1892, 2 Q. B. 330). (3) The view which is suggested in this book is that the Act of 1882 has no application whatever to such instruments, whether absolute or by way of security, and that Section 8 of this Act is unrejjealed as to instruments which are deemed to be Bills of Sale under Sections 5 and 6. If so, registration is not necessary as between grantor and grantee, or as against any persons other than those named in Section 8 (see note (e) to Section 3 of the Act of 1882, post, where the reasoning of the Court in Green v. Mursh is examined). (c) In dealing with instruments under this Section it is necessary first to determine whetlicr trade machinery is intended to pass at all by the deed or instrument. On this point see ante, p. 82. Two recent cases recpiire special notice. In Southport Banlcing Co. v. Thompson (1887, 37 Ch. D. 64) a limited company carrying on business as corn millers and flour dealers executed a mortgage by sub-demise, dated in January, 1882, in favour of their bankers. The deed comprised (1) leasehold premises, and the corn mill, warehouse, and other buildings erected thereon, " and also all and every the steam engines, steam boilers, main and cross shafting and gearing, steam, gas, and other pipes, pillars, and all other the fixtures and fixed machinery therein, which, either by itself or in conjunction with other machinery, supi)lies or assists to sup])ly the motive power to the said corn mill and works"; (2) leasehold premises and two villa residences thereon ; (3) leasehold premises, with the erections or buildings thereon : " Together with all buildings, fixtures, rights, lights, easements, advantages, hereditaments, and api)urtcnancps whatsoever to the said premises respectively belonging or appertaining." Tiie company having gone into voluntary li(|uidatioTi, the mortgagees brought an action against the liquidator for foreclosure cjr sale, aTid for an injunction to restrain the defendant from selling or removing any machinery, articles, or things affixed or fastened to the fr(>chold. It was c()nt(!iided for tlu! li(|uitl:itor that as the enumerated articles belonged to the class of " excluded niachinery," there was an intenticm expressed to exclude "trade machinery" from the operation of the deed. But the Court of Appeal DISPOSITIONS OF TRADE MACHINERY. 175 held that the words were sufficient to carry the trade fixtures by the demise of the hind and niilh and that there was not a sufficient Sect. 5, expression of intention to exckide trade machinery. In this case Note (c). no question arose as to the need for registration of the mortgage as a Bill of Sale. The deed was executed before the passing of the Act of 1882, and the liquidator of a company is not one of the persons as against whom an unregistered Bill of Sale is void under this Act (see Section 8, po. Irade machinery ; and that, iis his right to the trade nuu-ln'nery was not founded on an exjjrcss assignment, the case was covci'cd by the ])rinci[)k' of Jn re Yules, sujjra. DISPOSITIONS OF TRADE MACHINERY. 177 The learned Judpje further expi'essed the opinion that if an election had been made, J. L. " would have had greater rights over Secti 5, the trade machinery," and registration would have been necessary Note (c). to protect his title. But this seems to be too broad ; for an " assignment of the before-mentioned property," either absolute or by way of security, might be made in such a form as not to require registi'ation. This case was discussed under the Act of 1878, and no hint was given as to the application of the Act of 1882. In Small v. Natioiial Provincial Bank of England (1894, 1 Ch. 686), a mortgage by a millwright and engineer of his freehold business premises contained a grant and assignment of the hereditaments and premises described or referred to in the schediile, " together with all and singular the fixed and movable plant, machinery, and fixtures, implements, and utensils, now or hereafter fixed to or placed upon or used in and about the said hereditaments and premises respectively." The deed also contained a separate covenant by the mortgagor to keep the buildings and the plant, machinery, and fixtures, implements, and utensils in good repair, and also insured against loss or damage by fire. The deed was not registered as a Bill of Sale. Stirling, J., held that it was void as to the fixed trade machinery (as well as the loose chattels), and that the mortgagee could not sell such machinery either together with or apart from the mortgaged jjremises. An injunction was therefore granted at the instance of a trustee for the creditors of the mortgagor, restraining the mortgagees from selling, offering for sale, or otherwise disposing of, as their own goods and chattels, the trade machinery and fixtures in question. Tlie ground on which this case was distingiiished from In re Yates, supra, was that trade machinery was not merely expressly mentioned in the deed, but was grouped along with personal chattels, both in the operative words and in the covenant for insurance, the iiitention being to confer on the grantees a right to the fixed plant in addition to any rights which they would have simply as grantees of the land, and to confer the same rights in respect of fixad plant and machinery as with reference to the movable plant. It seems to have been assumed in this case, as in In re Yates, that the Act of 1882 applied. The plaintiff was a trustee under an assignment for the benefit of creditors, and under the Act of 1878 the deed would have been void against him if the mortgagor was in possession or apparent possession. Whether this was the fact or not does not appear from the report. In /); re Brooke, Brooke v. Brooke (1894, 2 Ch. 600), the owners of a paper mill, erected on copyhold premises, granted and conveyed to a mortgagee the land with the mill "and the fixed machinery and fixtures in and upon the said premises (which said machinery and fixtures are specified in the schedule hereto) " ; and covenanted to keep the said mill, " machinery, and fixtures comprised in and subject to this security, and all buildings, machinery, fixtures, and property which may from time to time be so comprised or subject, in good and substantial repair, and in perfect working order," and also insured against loss or damage bj^ fire. There was a schedule specifying the " fixed niachinery and fixtures " in the mill. The deed was not registered as a Bill of Sale. Kekewich, J., held that the express mention of fixed machinery and fixtures did not give the mortgagees any larger right than if the inachinery and fixtures hiid jias.sed without express mention as part of the land, and that the case was, therefore, within In re Yates, supra. The executrix of the mortgagor having sold some of the machinery, and replaced it by new, the mortgagees were held to be entitled to the proceeds, without prejudice to any question as to the substituted machinery. In this case, again, it must have been assumed that the Act of 1882 n])plies to instruments within Section 5, for under this Act the mortgage would not luxve been void as to trade machinery, either against the N 178 BILLS OF SALE ACT, 1878. executrix of the mortgagor or against the creditors in the Sect. 5, administration action (see Section 8, post). Note (d). (d) The excUision of " fixed motive-powers," " fixed power machinery," and " steam, gas, and water pipes," was probably suggested by the fact that it is customary for these fixtures to belong to the landlord, and to be demised with the mill to the tenant w'ho supplies " trade machinery" for his own purposes (see, e.g., Longbottom v. Berry, 1869, L. E., 5 Q. B. 123). It has been said by North, J., that the " excluded articles of machinery " are not within the Acts for any purpose whatever; and that "any document, whatever it may be, which assigns tliem is not an assurance of personal cliattels within the meaning of the Act" {Tophain v. Greenaide Firebrick Co., 1887, 37 Ch. D. 281; noted under Section 17 of the Act of 1882, post). The same assumption seems to have been made by the Court of Appeal in Ex parte Byrne, re Burdett (1888, 20 Q. B. D. 310). In that case a Bill of Sale comprised a number of chattels used by the grantor in his business as a printer, and also a gas engine, with shafting, belts, and gas fittings and piping. The deed was admitted to be void in respect of " personal chattels " because it wafe not in the statutory form (see Section 9 of the Act of 1882, post). It was also admitted that the gas engine and shafting &c. were " trade machinery of that kind which by Section 5 is excluded from the definition of personal chattels contained in Section 4 " of this Act ; and the Court of Appeal held that the deed, though void as to the personal chattels, remained valid as to the gas engine. With deference to these authorities it is respectfully submitted that the excluded articles are fixtures, and therefore personal chattels when sQ,parately assigned or cliarged. There appears to be nothing in the Act to qualify or cut down the affirmative rule in Section 4. The construction adopted by North, J., seems to overlook the logical dependence of this Section upon the negative rule in Section 4 (see note {b), supra, and note (r) to Section 4, ante, p. 165). The express mention, in a mortgage of a mill, of articles excluded by this Section from the definition of trade machinery, is not enough to indicate an intention that other fixtures, including trade machinery, should not pass with the mill to the mortgagee (Southport Baiihiny Co. v. Tho)np.wn, 1887, 37 Ch. D. 64 ; ante, p. 174). (e) This definition of " factory or workshop " is partially identical with the definitions of " factory " and " workshop " contained in Section 93 of The Factory and Workshop Act, 1878 (41 Vict. c. 16). In Palmer's Sliipbnildiny Co. v. Chaytor (1869, L. R., 4 Q. B. 209) the opinion was expressed that a ship is not an "article" within the corresponding words of The Factory Acts Extension Act, 1867 (30 & 31 Vict. c. 103). Certain instru- ments giving powers of distress to be suljject to this Act. 6. Every attornment (a), instrument (a), or agreement (a), not being a mining- lease (6), whereby a power of distress is given or agreed to be given by any person to any other pei'son by way of security for any present, future, or contingent debt or advance (c), and whereby any rent is i-eserved or made payable as a mode of providing for the payment of interest on such debt or advance, or otherwise for the purp(jse of such security only (c), shall be deemed to be a Bill of 8ale, Avithin the meaning of this Act, of any personal chattels which may be seized or taken under such power of distress (cZ). ATTORNMENTS AND POWERS OF DISTRESS. 179 Provided, that nothing in this Section shall extend to Sect. 6. any mortgage of any estate or interest in any land, tenement, or hereditament Avhich the mortgagee, being in possession, shall have demised to the mortgagor as his tenant at a fair and reasonable rent (e). (a) This Section includes both an attornment clause, which enables a mort- gagee to take any goods which he finds on the demised premises, and an express power of distress, a conventional right under which he can only take the mortgagor's goods (Lindley, L. J., in Ex parte Kennedy, re Willin, 1888, 21 Q. B. D. 384). Under the Act of 1854 it was held that an attornment clause in the ordinary form was not a licence or authority to take possession of chattels as security for a debt (Morton v. TT'oods, 1869, L. R., 4 Q. B. 293; In re Stocl-ton Iron Ftirnace Co., 1879, 10 Ch. D. 335). " A power of distress is not a licence to take jiossession of personal chattels ; non constat that the owner may not replevy " (Channell, B.,.in Morton v. Woods, supra). (b) Note the express exception of a mining lease, "which, as an anomalous document amounting, not to a demise, but to a sale of the minerals, might otherwise have been thought to be within the Act " (Cave, J., in E,c parte Kennedy, re Willis, supra). It is not to be inferred from this exception that ordinary leases are within the Section. A power of distress reserved in a mining lease is a right akin to an unpaid vendor's lien. "What we call a mineral lease is really, when properly considered, a sale out and out of a portion of land" (Lord Cairns, in GoiLa7i v. Christie, 1873, L. R., 2 Sc. App. 273). A " lease " of a seam of coal " is more a sale of the coal, or grant of a right to take and remove it within a certain time, and it is not to be restored at the end of that time to the grantor" (Bramwell, B., in Eadon v. Jeffcock, 1872, L. R., 7 Ex. 379). "Rent reserved on a mineral lease is a payment by instal- ments of the price of minerals forming part of the land " (Lord Blackburn, in Coltness Iron Co. r. Black, 1881, 6 App. Ca. 315). (c) Two things must concur to bring an instrument within this Section. There must be a power of distress (express or implied) to secure a debt or advance ; and rent must be reserved or made payable only in order to provide for interest or otherwise for the purpose of securing the debt. The Section does not apply to a lease or an agreement for a lease where a rent is reserved or made payable for the occupation of premises or the use of chattels. As to a power of distress in an agreement for the demise of chattels see ante, p. 41. A brewer's lease which gives power to distrain upon the tenant's default in paying for goods supplied to him is a licence to take possession of chattels as security for a debt under Section 4 (see ante, p. 155). (d) The instrument is to be " deemed to be a Bill of Sale." The construction put by the Court of Appeal upon these words is as follows : " This arrange- ment, being for the security of money, is within the mischief which both Acts (i.e., the Acts of 1878 and 1882) seek to prevent, being a secret power of distress. By Section 9 of the Act of 1882, it would be void because it is not according to the scheduled form if it is a Bill of Sale. But it is only to ' be deemed to be a Bill of Sale ' of the chattels that might be distrained under it, according to Section 6 of the Act of 1878. That must mean that it is not a Bill of Sale, but it is to be treated as one for the purpose of registration. If unregistered it would be void as to the chattels comprised in it, under Section 8 of the Act of 1882. But not being actually a Bill of Sale, it need not be according to the scheduled form, because Section 9 does not applv to it" (per Curiam, in Green v. Marsh, 1892, 2 Q. B. 330). 180 BILLS OF SALE ACT, 1878. This construction, however, which assumes that an instrument Sect. 6, can be within Section 8 of the Act of 1882 without also being Note (d). within Section 9, is open to grave objections. The view suggested in this book is that the Act of 1882 aifects onh' instruments which come within the definition of a Bill of Sale in Section 4, and not instruments which, though not within that definition, are deemed to be Bills of Sale under Section 5 and Section 6. If so, unregistered attornment clauses &c. are not void between grantor and grantee, but are only liable to be avoided in the event of execution or bankruptcy &c. under Section 8 of this Act (see note (e) to Section 3 of the Act of 1882, post). An important distinction exists between attornment clauses or instruments which create a tenancy with an express or implied power of distress, and instruments which do not create a tenancy, but create a power enabling the mortgagee to distrain for interest. In the former case the mortgagee may distrain on any goods which he finds on the demised premises ; in the latter he can only distrain on the goods of the mortgagor. " The decisive question in these cases is whether there was a tenancy and not merely a personal contract on the part of the mortgagor" (Lindlej-, L. J., in Kearslei/ v. Pliilips, 1883, 11 Q. B. D. 621). Under an attornment clause a real tenancy is created between the mortgagee and the mortgagor, and it is not necessary that the mortgagee should have the legal estate {Jolly v. Arbuthnot, 1859, 28 L. J., Ch. 547 ; Morton v. Woods, 1869, L. R., 4 Q. B. 293). Hence, an attornment by a mortgagor to a second mortgagee is valid, notwithstanding that the mortgagor has already attorned tenant to the first mortgagee (E.v parte Pimnett, re Kitchin, 1880, 16 Ch. D. 226). But as the tenancy is created only for the purpose of giving an additional security for the payment of the interest, the mortgagee does not cease to be a mortgagee because he is made a landlord; and he is therefore entitled as against the trustee in bankruptcy of the mortgagor to ti'ade fixtures annexed to the premises after the execution of the mortgage {In re Stockton Iron Furnace Co., 1879, 10 Ch. D. 335; Ex parte Punnett, re Kitchin, supra). The proceeds of a distress levied under an attornment clause are, in the absence of any provision to the contrai-y, applicable to the payment of principal as well as interest {per James, L. J., In re Stoc.Jiton Iron Furnace Co., 1879, 10 Ch. D. 335), even if there is no provision that the rent shall go in reduction of the principal (as in Pinhorn v. Souster, 1853, 22 L. J., Ex. 266). The fact that the rent reserved is equal to the interest, and is payable on the same days, is not sufficient to displace the prima facie right {E:e parte Harrison, re Betts, 1881, 18 Ch. D. 127). As regards the question whether a tenancy is created by an instrument, and whether it is a tenancy at will, or from year to year, or for a term of years, see cases cited in " Woodfall's Law of Landlord and Tenant," 14th ed., pp. 246 to 250. A tenancy from year to year, or from month to month, created by an attornment clause is not cut down to a tenancy at will by a proviso enabling the mortgag(>c to determine the tenancy — the usual power given to a mortgagee to enable him to take possession {E.c parie Queen's Benejit Building Society, re Thrclfal, 1880, 16 Ch. D. 274; Ex parte Voisey, re Knight, 1882, 21 Ch. D. 442). As to the disclaimer of a tenancy created by an attornment clause by the trustee in bankruptcy of the mortgagor see Ex parte Isherwood, re Knight (1882, 22 Ch. D. 384). A tenancy at will is determined at the death of the mortgagor, and a distress after that date is illegal {Turner v. Barnes, 1862, 31 L. J., Q. B. 170; Scohie r. Collins, post, j). 182). If a mortgage deed containing an attornment clause has been assigned, the assignee cannot distrain for rent wliich accrucnl due before the assignment, nor can he justify seizure under the authority of the assignor who could not himselt' disti'iiiii after the assignment {lirou-n v. Mctropulilan Counties Society, 1859, 28 L. J., il. B. 236). ATTORNMENTS AND POWERS OF DISTRESS. 181 Where no tenancy is created, an express power to distrain operates by way of contract or licence, and is bindint;: as aj^ainst Sect. 6, the mortj,'a<^or himself {Chapman v. Beecham, 184-2, 12 L. J., Q. B. 42). Note (d). But if the mortosf). Under the Act of 1854 there was no distinction between trade machinery and other fixtures. The question therefore arises whether this distinction is now applicable to unregistered instruments executed prior to 1879, so that they may still be avoided as to trade machinery, though saved from avoidance as regards other fixtures by virtue of this Section. On this question there is no clear authority. In Ex parte Moore cf Rohinson's Banking Co., re Armytage (1880, 14 Ch. D. 379), the owner of a freehold stone quarry, in December, 1878 (i.e., between the passing of this Act and its coming into operation), gave a mortgage of the land, " together with the lime kilns, stone-sawing mills, buildings, steam engines, boilc!rs, furnaces, shafts, gearing, motive power, plant, fixed and movable uiucliiuery, apparatus, rails, sleepers, implements, fittings and fixtures of every description, now or at any time hereafter fixed to, or placed upon, or used in or about the said hereditaments and premises, or any part thereof." The deed contained a power to sell " the said hereditaments and ])rcmises, or any part or parts thereof, either together or in parcels." Bacon, C. J., held that the deed did not require registration as regards fixtures, either under the old or the new law; that a tramway and a steam crane were fixtures within tlie meaning of this Section ; and that the mortgagee was entitled to them as against the trustee in li()uidation of tlie mortgagor. As regards tlie contention of counsel for the ti-ustee that tht- articles were "trade machinery" within Section 5, the judgment of tlie learned .Judge is not exjilicit ; but it would seem tliat the FIXTURES Ac. SEPAEATELY ASSIGNED OR CHARGED. 187 mortf^ago contained no " mode of disposition of trade machinery," so that the question of the application of Section 5 did not Sect. 7, really arise. Note (c). In Sheffield cj-c. Building Society v. Harrison (1884, 15 Q. B. D. 358) the only question decided was that certain driving belts were included as flxtm-es in a mortgage in fee of a wheel factory. The mortgage deed was dated in 1875, and the driving belts were claimed by the trustee in liquidation of the mortgagor. Lindley, L. J., observed that The Bills of Sale Act, 1854, did not apply, because the deed did not enable the mortgagees to sever the fixtures from the land. This observation a])pears to ignore the retrospective rule of construction in this Section; but it throws no light on the question whether the definition of trade machinery is applicable to instruments dated prior to 1879, for the driving belts in question would bo excluded from the definition of trade machinery by the words " shafts, wheels, drums, and their fixed appurtenances." In Faine v. Matthews (1885, 53 L. T. 872; ante, p. 89), a mortgage dated in 1 874 was held to be void in respect of trade fixtures for want of registration. The fixtures were claimed by the trustee under an assignment by the mortgagor for the benefit of his creditors. It is strange that the rule of construction in this Section should not have been referred to, and that the cases of Ex parte Daglish and E.c parte Brown {ante, p. 185) should have been treated as conclusive of the (]Ucstion. It would appear that the decision can only be supported if the definition of ti-ade machinery in Section 5, ante, applies to documents executed prior to 1879, and only in so far as the fixtures in question came within the definition of trade machinery. As regards growing crops it is difficult to assign any sensible meaning to this retrospective rule of construction. It is not now likely that any questioii will arise as to its application. Growing crops were not personal cliattels within the meaning of the Act of 1854 ; whether or not an interest in the land passed by the same instrument was quite immaterial. If a Bill (jf Sale executed before tliis Act comprised goods and chattels as well as crops growing or to be grown on the laud, it might have been not unreasonable for the Legislature to enact that the grantee who had chosen to imperil his security over the chattels by neglecting to register should also be liable to lose his secui-ity over growing crops. But if a Bill of Sale was given over present or future crops alone, the former law did not require registration at all. The case of Brantom v. Grifita (1877, 2 C. P. D. 212) is conclusive on this point. In such a case it would be obviously inequitable to enact that the grantee should find his security in peril because he had not complied with an enactment which had no existence when the Bill of Sale was executed. No provision was made for registering such a Bill of Sale after the passing of this Act ; for it could not be said that the omission to register was " accidental or due to inadvertence " (see Section 14, pout). Nor is it enough to say that he might protect himself by taking possession ; for the terms of his security might not admit of that. Nevertheless, the Section a})pears to assume that tli(> definition of ])ersonal chattels in Section 4 will bring growing crops within the operation of the Act, if the instrument under which they are claimed, as against an execution creditor or a trustee in bankruptcy &c., does not also pass an interest in the land. It is at least doubtful whether Section 4, which is a mere interpretation Section, could have this effect in the face of Section 23, pout, which enacts that " except as is herein expressly mentioned with respect to coniitruciion . . . nothing in this Act shall affect any Bill of Sale executed before the commencement of this Act, and as regards Bills of Sale so executed the Acts hereby repealed shall continue in force." But even if this retrospective rule of construction, so far as growing crops are concerned, is a blunder on the part of tlie Legislature, it is an interesting confirmation of the view that the time to 188 BILLS OF SALE ACT, 1878. whicli this Act looks throughout is not the date when the Bill of Sale Sect. 7, is executed, but the date when a contest arises between a person Xote ((•). claiming chattels under a Bill of Sale on the one hand, and an execution creditor or a trustee in bankruptcy of the grantor on the other (see ante, p. 3, and note to Section 6 of the Act of 1882, post). Avoidance of unreuis- tered Bill of Sale in certain cases. [8. J] very Bill of Sale to which this A.ct applies (a.) shall be duly attested (/>) and shall be registered (c) under this Act, within seven days after the making oi' giving thereof (d), and shall set forth the consideration for which, such Bill of Sale was given (e), otherwise such Bill of Sale, as against all trustees or assignees of the estate of the person whose chattels, or any of them, are comprised in such Bill of Sale under the law relating to banki'uptcy or liquidation (/), or under any assignment for the benefit of the creditoi's of such person (/), and also as against all sheriffs officers and other persons seizing any chattels comprised in such Bill of Sale, in the execution of any ; process of any Court authorising the seizure of the chattels | of the person by whom or of whose chattels such Bill has i been made (/), and also as against every person on whose I behalf such, process shall have been issued (/), shall be j deemed fraudulent and void so far as regards the property ; in or right to the possession of any chattels comprised in such Bill of Sale (g) which, at or after the time of j filing the petition for bankruptcy or liquidation (h), or j of the execution of such assignment, or of executing such i process (i) (as the case may be), and after the expiration ' of such seven days (j) are in the possession or apparent i possession (k) of the person making such Bill of Sale (Z) \ (or of any pei'son against whom the process has issued | under or in the execution of which such Bill has been ' made or given, as the case may be (ni)).'] (a) This Section is repealed by Section 15 of the Act of 1882, '})Ot>t, but only as regards Bills of Sale given as security for the payment of money. ' It remains in force with respect (1) to Bills of Sale given on or after 1st January, 1879, otherwise than by way of security for the payment of money ; and (2) to Bills of Sale by way of security for the pa_yment of money , executed on or after 1st January, 1879, and duly registered befoi'e 1st | November, 1882, which are not affected by the Act of 1882 "so long as j the registration thereof is not avoided bj- non-renewal or otherwise " (see Section 3 of the Act of 1882, post). As to the questicm whether this Section is repealed, or remains in force, with respect to documents " deemed to be Bills of Sale" under Sections 5 and (!, itiitc, see not(> (c) to Section 3 of the Act of 1882, post. {!)) Attestaticjn under tliis Act is regulated by Section 10 (1), post, which is to be read into this Section (Daris v. Goodman, 1880, 5 C. P. D. 128; post, p. 199). AVOIDANCE OF UNREGISTERED BILL OF SALE. 189 (c) .Reoristi'ation is regulated by Sections 10 to 14, post. No action will lie for the wrongful registration of a document erroneously Sect. 8, supposed to be a Bill of Sale unless the plaintiff proves malice Note (c). and want of reasonable and probable cause {Horsley v. Style, 1894, 69 L. T. 222). {d) The grantee has seven days within which to register the Bill of Sale. As to the reckoning of time see Section 22, post. The Section does not apply unless the chattels are in the possession or apparent possession of the grantor at or after the expiration of the seven days (see note (j), p. 193). Hence, if the grantee takes actual possession during the seven (lays, his title cannot be avoided by failure to register. During the seven days, the order and disposition clause does not apply to the chattels comprised in the Bill of Sale {E.r parte Kahen, re Hewer, 1882, 21 Ch. D. 871). If a petition for bankruptcy is filed or execution is issued during the seven days, the Bill of Sale is not avoided, even though it is not registered within that time {Marples v. Hartley, 1861, 30 L. J., Q. B. 92; post, \x 193). Section 8 of the Act of 1882 provides that "every Bill of Sale shall be registered under the principal Act within seven clear days after the execution thereof, or if it is executed in any place out of England, then within seven clear days after the time at which it would in the ordinary course of post ai-rive in England if posted immediately after the execution thereof." It is not clear whether this enactment is confined (like the rest of the Section) to Bills of Sale in security for money, or applies also to Bills of Sale under the Act of 1878. Probably if the case arose it would be held so to appl}', being a provision in ease of the grantee. (e) This provision as to setting forth the consideration still ap23lies to Absolute Bills of Sale (see note (a), supra). A corresponding provision (with the immaterial addition of the word "truly") applicable to Bills of Sale in security for the payment of money, is contained in Section 8 of the Act of 1882, post. The decisions are noted under that Section. (/) The Bill of Sale is to be deemed fraudulent and void as against these persons only. In the case of an execution creditor, it is void only to the extent necessary to give effect to the execiition {Ex parte Bluiberg, re Toomer, 1883, 23 Ch. D. 25-1; see note (g), infra). It is void against an execution creditor, notwith- standing the fact that the execution creditor had notice of the Bill of Sale wlien he gave credit to the grantor {Edicards r. Edicards, 1876, 2 Ch. D. 291). For " it would be dangerous to engraft an equitable exception upon a modern Act of Parliament " (James, L. J., ibid.). On the same principle a sale by auction may be within the Act, notwithstanding the publicity of the transaction {[v re Roberts, Evans v. Roberts, 1887, 36 Ch. D. 196; ante, p. 10). The words "assignment for tlie benefit of the creditors of such person" include an assignment of all his estate and effects for the benefit of all such of his creditors as nuiy elect to execute the same ; they are not restricted to cases of bankruptcy or liquidation, but extend to assignments whollj^ independent of liquidation or composition proceedings {Paine v. Maitheivs, 1885, 53 L. T. 872). An unattested and unregistered Bill of Sale is good as between grantor and grantee {Davix r. Goodman, 1880, 5 C. P. D. 128). The same point was decided und<>r the Act of 1854 in Nicholson v. Cooper (1858, 27 L. J., Ex. 393). See also Hills V. Shepherd, 1858, 1 F. & F. 191 ; Barker v. Aston, 1858, 1 F. & F. 192. An unregistered Bill of Sale is good against a purchaser from the grantor, unless the goods were sold by the grantor in the ordinary course of business with the inii)lied authority of the grantee. The holders of an unregistered Bill of Sale sued a purcliaser in trover; the jury found that the grantor sold the 190 BILLS OF SALE ACT, 1878. tjoods fraudulently, and not in the ordinary course of business. Sect. 8, but that the defendant did not know this and bought the goods Note (/). ho)iil fide. Held, that the plaintiffs were entitled to recover (Taylor v. McKeand, 1880, 5 C. P. D. 358; ante, p. 74). An iinregistered Bill of Sale by a limited company is good against the liquidator of the Company, who acts not oiily for creditors but also for contribu- tories (In re Marine Mansions Co., 1867, L. R., 4 Eq. 601 ; In re Stockton Iron Furnace Co., 1879, 10 Ch. D. 335). These were cases under the Act of 1854, which did not contain the word " liquidation." But they were followed under this Act, Bacon, V. C, observing that the term " liquidation " referred to the liquidation of a person's affairs in bankruptcy, and not to the winding up of a limited company (In re Asphnltic Wood Pavement Co., 1883, 49 L. T. 159). The Bill of Sale in question in this case was a debenture whereby the company charged personal chattels to secure payment of a principal sum and interest, and it was provided that the debenture should not be registered as a Bill of Sale. As to the registration of debentures issued by incorporated companies see now Section 17 of the Act of 1882, post. An unregistered Bill of Sale is good against the unsecured creditors of the deceased grantor whose estate is being administered by the Court {Re Knott, 1877, 7 Ch. D. 549 n). In this respect Section 10 of The Judicature Act, 1875 (38 & 39 Vict. c. 77), makes no difference, for the terms of that Section do not enlarge the assets to be administered, but merely alter the mode in which such assets are to be divided (/;* re D'Epineiiil, Tadman v. D'Epi7ieuil, 1882, 20 Ch. D. 217). T. A. C. (trading as "C. & Co.") granted a Bill of Sale over his stock-in-trade, which was not registered (see ante, p. 158). Subsequently he made an assign- ment of all his property, except his household furniture, to one McGahey for'the benefit of his creditors. He then died, and his will was proved by his widow, E. C. The following year one Martelli obtained judgment against " C. & Co." for breach of an agreement, on which execution issued against the stock-in-trade comprised in the Bill of Sale. The grantee of the Bill of Sale moved for an injunction to restrain Martelli from proceeding with the execution. It was held by Cliatterton, V. C, that Martelli was an execution creditor of McGahey and E. C, who had carried on the business after the death of T. A. C. ; and that, as he was not an execution creditor of the grantor, the Bill of Sale was not void as against him for want of registration (Cranfield v. Cranfiehl, 1889, 23 L. E. Ir. 555). An unregistered Bill of Sale is liable to be postponed to a later Bill of Sale which is duly registered (see Section 10, po.^f). ((/) Before the Act of 1854 made registration necessary for the protection of the grantee's title to the chattels, an execution creditor could in general only rely on the alleged transfer being fraudulent aTid void under the Act 13 Eliz. c. 5. The qu(>stion of fraud under that Statute nuxy still be raised, even if the Bill of Sale is duly registered (see Chapter IX., airfe, p. 109). The same result followed where the claimant alleged that he had bought the goods from the execution debtor, but it appeared that the terms of the alleged sale had been reduced to writing, which was inadmissible for want of stamp; for the claimant was bound to put forward the written document, and could not I'esort to other evidence of the sale {Yorke v. Smith, 1851, 21 L. J., Q. B. 53 ; ante, p. 152). The Act of 1854 made an unregistered Bill of Sale void as against certain ])(;rsons " to all intents and pur))()Sos." One conseciuenco of this enactment was that a ])i'ior uni-cgistercMl Bill of Sale was displaced in favour of a later registered iiill of Sale, tlie holder of which, by claiming the goods, barred the claim of an execution creditor (Ed-wards v. Knijlisli, 1857, 26 L. J., Q.B.I 93; Richardis v. James, 1867, L. 11., 2 Q. B. 285). The priority of successive Bills AVOIDANCE OF UNREGISTERED BILL OF SALE. 191 of Sale is now regulated by Section 10, -post. As to the former law- see ante, pp. 75 to 77. Sect. 8, In the case of an execution an unregistered Bill of Sale is void Note (g). under this Act only to the extent necessary to give effect to the claim of the execution creditor. " Suppose a Bill of Sale given for £1,000 and not registered, and then a judgment creditor for £10 takes out execution and seizes the goods while still in the possession of the debtor. The execution is good as against the Bill of Sale, but T am disposed to think that the holder of the Bill of Sale can claim the residue" (Jessel, M. R., in Ex parte Four- ilrinier, re Artistic Colour Friuiing Co., 1882, 21 Ch. D. 510, questioning the decisiou in Richards ik James, 1867, L. R., 2 Q. B. 285: but see ante, p. 70). The suggestion thrown out in the above case was expanded in Es parte Bluiberg, re Tooincr (1883, 23 Ch. D. 2o'i), where, however, the Court distinguished Richards v. James, supra, on the ground that this Act differs from the Act of 1854. " What is the meaning," said Jessel, M. R., " of being fraudulent and void ' as against ' a jierson who has a security upon or a demand against the goods y Surely it inust mean void in order to give effect to that security or that demand. I cannot understand the v/ords ' as against ' in any other sense. If it meant 'void to all intents and purposes,' why did not the Act say so ? If the Bill of Sale is to be void as against the Sheriff, that must mean void for the purjjose of letting in his claim. That is the obvious meaning. The Bill of Sale remains good as against the person who gave it. That seems to me to be the mi'aning of declaring a deed fraudulent and void as against a particular person ; it makes it void merely to the extent of his claim. The result would be that if an execution was put in, without any bankruptcy of the grantor, the execution creditor must be satisfied out of the goods in priority to the Bill of Sale holder. If the Sheriff sold the goods for £100, and £10 only was due to the execution creditor, why should the execution debtor be entitled to the surplus, and to say that the Bill of Sale was void as against him, although it was not void before the execution was levied ? So, again, if the execution was paid out by the Bill of Sale holder, why should the grantor be able to avoid the security ? It appears to me that this is the plain meaning of Section 8, and there is no occasion for us to go back to the woi'ds of the former Act." Hence, if after an execution the holder of an unregistered Bill of Sale takes pos.session of the goods, his title is good against the trustee in the subsequent bankruptcy of the grantor (see post, p. 192). An instrument is only void under this Section in respect of " chattels comprised in such Bill of Sale." Hence where a mortgage of an agreement for a lease of a theatre was construed to operate also as an equitable assignment of furniture brought or to be brought into the theatre (see a^ite, p. 157), Malins, V. C, held that the M-ant of attestation made it void in so far as it was a Bill of Sale of chattels but that it remained valid in so far as it was a nu)rtgage of the lease (Buyliott v. Norman, 1880, 41 L. T. 787 ; cf. the decisions noted under Section 9 of the Act of 1882, post). "Apparently this Section would not make void the covenant for payment of the debt " (per Ckiriam, Heseltine v. Simmons', 1892, 2 Q. B. o47). Strange to say, this poiilt does not seem to have been decided either under the Act of 1854 or the Act of 1878. But in spite of the guarded word " apparently," the point is hardly open to doubt. The distinction between the covenant to pay and the assignment of the chattels was fully recognised. Thus, a plaintiff who sued on the covenant was allowed to read the deed without producing the schedule of the chattels therein refen-ed to, which was inadmissible for want of stamp (Daines r. Heath, 1846, 16 L. J., C. P. 117). (/i) The corresponding words applicable to bankruptcy in the Act of 1854 wei-o '■ at or after the time of such bankruptcy." This expression was construed 192 BILLS OF SALE ACT, 1878. to mean the time of committing an act of banki'uptcy followed by Sect. 8, adjudication to which the trustee's title related back. Hence, Note (h). where the holder of an unregistered Bill of Sale had taken possession of the chattels in ignorance of an act of bankruptcy previously committed by the grantor, the trustee, under a subsequent petition, was held entitled to recover the goods from him (Ex parte Attirater, re Turner, 1876, 5 Ch. D. 27; followed in Ex parte Pa.yne, re Cross, 1879, 11 Ch. D. 539). Thus, where the holder of an unregistered Bill of Sale took possession on 1st January, and sold the goods on the 8th, and the grantor was adjudicated bankrupt on the 3rd under a bankruptcy petition presented on that day, the act of bankruptcy having been committed on the 31st December, it was held that the trustee's title related back to 31st December, and the proceeds of the goods belonged to him (Ex parte Learoijcl, re FonUU, 1878, 10 Ch. D. 3). The critical date is now the time oi filing the petition for baiiTcruptcij or liquidation. In E.I! parte Blaiberg, re Toomer (1883, 23 Ch. D. 254), Toomer executed a Bill of Sale in favour of Blaiberg on the 3rd of March, 1882. This was never registered. On the 21st of March Toomer signed a declaration of insolvency, which was filed in the London Bankruptcy Court at 12.30 on the 22nd, and on that act of bankruptcy a bankrujatcy petition was presented against him at 3.15 the same day. Meanwhile, at 2.30 the Sheriff had taken possession of the goods in his shop ; immediately afterwards a bailiff took possession for the Bill of Sale holder, and before 3 p.m. posted on the window a notice stating that the goods were the property of Blaiberg under a Bill of Sale. Toomer was adjudi- cated bankrupt on the 29th of March, and it was admitted that the seizure by the Sheriff was void against the trustee. Blaiberg applied for an order declaring him entitled to the goods. The Court of Appeal held that as the execution was wholly swept away by the relation back of the trustee's title, and as the Bill of Sale holder had taken possession before the filing of the petition, he was entitled to the goods as against the trustee. If the grantee has, without objection from the grantor, taken actual possession before the filing of the petition for liquidation, his title will prevail over that of the trustee, notwithstanding the fact that he had no right to take possession under the terms of the Bill of Sale, the time for payment after demand not having elapsed {Ex -parte Redfern, re Ball, 1871, 19 W. R. 1058). But though actual possession, even if wrongful, may exclude the operation of the Act, the law will not extend the possession of the grantee by construction beyond his actual physical possession {Ex parte Fletcher, re Henley, 1877, 5 Ch. D. 809 ; ante, p. 169). If actual possession has been taken before tlie bankruptcy of the grantor, it is immaterial whether the possession has been obtained by means of a transaction wliich, if there had been no Bill of Sale, would have been void as a fraudulent preference {Ex pa.rte Sijinmons, re Jordan, 1880, l-l Ch. D. 693). Whcire the Sheriff is actually in possession under an execution at tin; time of filing the bankrujjtcy petition, it has been said that the cihattels are not in the api^ai'cnt possession of the grantor, on the authority of Ex parte Sajfery, re Brenner (1881, 16 Ch. D. 668) ; but see ante, p. 171. (i) If the grantee of the Bill of Sale has taken actual possession of the goods, and is in actual possession of them Avhen the execution is issued, his title is not avoided by non-registrati(m (Minister v. Price, 1859, 1 F. & F. 68(J, where the trustees under a settlement for the separate use of the grantor's wife had taken possession of the goods; Piercy v. Humphreys, 1868, 17 L. T. ■I(i3, where an agreement to assign chattels to a hon'i fide creditor was followed by open deliv(!ry and actual cor])oral possession). So if a receiver appointed on behalf of t\w. grantee has really takoji possession before the goods are seized in execution, the case would be taken out of the Sectiim, although the appointment AVOIDANCE OF SUBSTITUTED BILL OF SALE. 193 lias not been coniiilett'd bv tho "iiviiio- of security {per Mellisb, L. J.. in EdtrarcU v. Edward.-<, LS7(i, 2 Cli. J). 291). " Sect. 8, {,/) The grantee has the period of seven days within which Note (j). \w may protect his title by registering the Bill of Sale. If the goods are taken in execution during that period the grantee has a good title against the execution creditor, although the Bill of Sale is not registered at the time of the seizure. It is not necessary for him to prove, in an interpleader issue as against such creditor, that the Bill of Sale was duly registex'cd within the allowed period {Marples v. Hartley, 1861, •iO L. J., Q. B. 92). This is so, even although the form of registering the Bill of Sale has been gone through, but in a defective manner {Banhury r. Wltite, 1863, 32 L. J., Ex. 258). The principle of these cases was applied by the Exchequer Cliamber in the following action. On 8th June B. purchased furniture froni S., paying the purchase price, and taking a receipt and inventory. Possession was delivered to him, but he lent the goods on hire to S. On 15th June they were seized under a fi. fa. against S. The receipt and inventory were never registered. The Exchequer Chamber held that, whatever might have been the case if the goods had been seized after the period for registration (then twentv-one daj's) had expired, seizui-e within that time did not avoid B.'s title (Brii/nall r. Cohen, 1872, 21 W. E. 25). The same principle applied under the Act of 1854, when the unregistered Bill of Sale was the latest of a series of substituted Bills given in evasion of the Act (Hollingsu-orth v. White, 1862, 6 L. T. 604). But this device is now struck at by Section 9, post. {k) "Apparent possession " is defined by Section 4, ante, p. 150; and the cases relating to possession or apparent possession are summarised ante, pp. 166 et seq. (!) As to a Bill of Sale made by two persons jointly, one of whom only becomes bankrupt, see E.r parte Brown, re Reed (1878, 9 Ch. D. 389) ; Ex parte Fopplewell, re Storey (1882, 21 Cli. D. 73) ; ante, p. 100. {m) These words were intended to provide for cases where goods sold by the Sheriff under an execution arc allowed by the purchaser to remain in the ]ioss8Ssion of the execution debtor (see ante, p. 6). Where a trustee in liquidation sold goods to a pm-chaser who let them to the debtor, and the receipt for the purchase-money was not registered as a liill of Sale (though the hiring agreement was) the title of the purchaser was iqiheld as against an execution creditor of the debtor: for the debtor was not tlie 'person making the Bill of Sale, nor had the Bill of Sale been made or given U7ider process of Court (Parnacott v. Dieudonne, 1885, 2 T. L. R. 98 ; ante, p. 18). 9. Where a subsequent Bill of Sale (n) is executed Avoidance witliiii or on the expiration of seven days after the execu- duplicate tion of a pvior unregistered Bill of Sale (b), and comprises |^l|^| °* all or any part of the pei'sonal chattels comprised in such ])rior Bill of Sale, then, if such subsequent Bill of Sale is given as a security for the same debt as is secured by the prioi- Bill of Sale, or for any part of such debt, it shall, to the extent to which it is a security for the same debt or part thei-eof, and so far as respects the personal chattels or part thereof comprised in the prior Bill, be absolutely void (c), unless it is ])roved to the satisfaction of the Court having cognizance of tlu- case that the subsequent Bill of Sale was 194 BILLS OF SALE ACT, 1S78. Sect. 9. bond fide given for the purpose of correcting' some material error in the prior Bill of Sale, and not for the purpose of evading this Act (d). (a) This Section, from its terms, applies only to Bills of Sale given as security for a debt. (b) This Section does not apply where the later Bill of Sale is executed more than seven days after the prior unregistered Bill. B. sold certain goods to the plaintiff by unregistered inventory and receipt for £81, and on a subsequent execution against B.'s goods the jjlaintiff's claim was barred. Two months after the sale the plaintiff agreed to pay out the execvition, and B. gave him a Bill of Sale for the amount so paid plus the £81. The Court held that this Bill of Sale was not affected by the Section (Carrard v. Mcel-, 1880, 29 W. R. 2-44). So, where the plaintiff in 1879 made an advance to F. on a written agreement (which was not registered) to execute a Bill of Sale when required, a Bill of Sale executed by F. on request in 1881 and duly registered was held not to be made void by the Section, Kay, J., observing that " on " meant immediately upon the expiration of the seven days allowed for registering (Wilson v. Watherspoon, 1881, 71 L. T. J. 230). So, wliere a person became surety for an advance in May upon a verbal agreement with the debtor that he would give a Bill of Sale by way of indemnity against the liabilitj^ it was held that a Bill of Sale given in August was not in any way affected by this Section. Lindley, L. J., observed : " The ninth Section of the Act, as I understand it, was passed for the purpose of meeting a specific method of evading the registration of Bills of Sale. That was the object of it, and the language is confined to that particular object. It appears to me, not only that the present case does not come within the Section, but that it would not he in conformity with legal principles to base upon it a method of reasoning which would touch a transaction of this kind, which does not come within either the letter or the spirit of the enactment (Ex parte Hauxicell, re Hemingway, 1883, 23 Cli. D. 626). (c) The Avords " absolutely void " appear to mean that the Bill of Sale is to be void, even if it has been registered, or if possession has been taken under it, or if the goods are seized in execution before the lapse of seven days from the date of the Bill of Sale. This construction reads the Section in close connection with Section 8, ante, and is in harmony with the decisions of the Court of King's Bench in Morris v. Mellin (1827, 6 B. & C. -l-ie) and Bennett r. Daniel (1830, 10 B. & C. 500). But in view of the decisions of the Court of Appeal as to priority of Bills of Sale (see note {t) to Section 10, post), it is possible the Courts might hold the later Bill of Sale " absolutely void," even as between grantor and grantee. (fZ) This Section was intended to defeat a mode of evading the necessity for registration under the Act of 1854. In consideration of the grantee agi'oeing not to register the Bill of Sale, the grantor agreed to give a Bill of Sale in substitution tlierefor within the time allowed for registration (twenty-one days), and so on successively. The security was thus kept in force without the publicity of registration, and, in the event of execution or bankruptcy, the grantee was able to register the latest Bill of Sale. The giving of successive Bills of Sale, though intended as a means of evading the Act, was upheld against execution creditors, for " an Act evaded is an Act not broken " (Braniwell, 13., in Ranisden v. Lupton, infra). The last Bill of the scries, wlien registered, was uplield against execution creditors, the execution of cacli sul)S('(|ueiit Bill amounting to an annulment or cancellation of the previous Bill (Jfolliiii/sworlh V. White, 1862, 6 L. T., N. S. 604; Smaie v. Bnrr, 1872, L. II., 8 C. P. 64; Hunter r. Tnrncr, 1875, 32 L. T. 5o()), even if the prior deeds remained RESCISSION, SUBSTITUTION, AND CANCELLATION. 195 ill the possession of tlic ^ r. Goodman, ]880, 5 C. P. D. 128). In this case Sect. 10, it was contended that Sub-section 1 of Section 10 was intended Note {a). solely for the protection of the grantor; but the Court of Appeal held'that it was intended for the benefit of creditors generally, and that even if this were not so, the only penal consequences attaching to non-compliance are those enacted in Section's {ante, p. 188). It would seem, however, that a Bill of Sale not duly attested will be postponed to a later duly registered Bill of Sale (see the last" clause but one of this Section), and in the event of the grantor's bankruptcy the chattels will lose the protection of Section 20,^ pout. An absolute conveyance by a husband in favour of his wife, dated in 1884, was accordingly declared void against his execution creditor, because the attestation clause did not state that before the execution the effect of the Bill of Sale had been explained to the grantor by the attesting solicitor. The parties had wrongly followed the attestation clause in the statutory form prescribed by the Act of 1882 {Casson v. Churchley, 1884, 53 L. J., Q. B. 335). (b) The words " shall be attested by a solicitor" mean that the solicitor must be present when the Bill of Sale is executed by the grantor, and must witness the execution (Sharpe v. Birch, 1881, 8 Q. bI D. Ill; Ford v. Kettle, 1882, 9 Q. B. D. 139 ; po>|)onent, but the dcscrii)tion was in fact true, the description was held sufficient (Rue v. Bradshaic, 1866, L. R., 1 Ex. 10(5). The descri])tion of the grantoi-'s residence and occupation need not be in the form of a logical proposition. Where an affidavit stated that the annexed copy was a " true copy of a I-Jill of Sale, bearing date . . . and Tnadc between W. T. of 55 V. Street, Westminster, in the County of Middlesex, and of C. Wharf, William Street, Blackfi-iars, in tlie City of London, coal merchant, of the one part," &c., it was held to be a sufficient affidavit of the grantor's residence and occupation (FouUjer v. Taylor, 1860, 29 L. J., Ex. 154 ; cf. Nicholson r. Cooper, 1858, 27 L. J., Ex. 393 ; per Willes, J., Sladden v. Sergeant', 1858, 1 P. & F. 322). If the affidavit is made by the attesting witness, the descri])tion of his residence and occii])nti()n niay be conhn'tHMl in tlir iiitrodiictory part cif the AFFIDAVIT : DESCRIPTION OF RESIDENCE. 203 affidavit. Thus, when the affidavit of the attesting witness began " I, A.B., of such a jtlace, swear &c.," but contained no separate Sect. 10, statement of his residence, tlie Court held that this was etiuivalent Note (k). to an oath that he resided there, and refused a rule (Allen v. Thompson, 1856, 2 Jur. N. S. 451). The same point was indirectly involved in the decision in Routh v. Roublot (1859, 28 L. J., Q. B. 240 ; ante, p. 201). In that case it was argued that there was no description of the residence and occupation of the attesting witness, but it does not seem to have been contended that the description of the deponent in the introductory part of the affidavit was insufficient. The argument was that there was nothing to show that the deponent and the attesting witness were one and the same person. The affidavit of the attesting witness was as follows : — " I, A.B., of No. 3 Chancery Lane, in the Citj- of London, make oath and say as follows: .... 6. I am a solicitor of the Supreme Court, and reside at . . . ." It was contended that thei'e was no description of his residence. But the Court held the affida^-it to be good; North, J., on the ground that the description in the intro- ductory part was sufficient ; ilanisty, J., on the ground that the body of the affidavit incorporated by reference the description in the introductory part and in the attestation clause ; and Denman, J., on either view, on the authoritv of Routh V. Rouhlof, supra (Blaiberg v. Parke, 1882, 10 Q. B. D. 90). The residence to be described is the residence at the time of swearing the affidavit, and not (if there has been a change of residence in the meantime) at the time of executing the Bill of Sale (Button v. O'Neill, 1879, 4 C. P. D. 354 ; disapproving London ,^- Westminster Loan Co. v. Chase, 1862, 31 L. J., C. P. 314). But where the grantor, between the execution of the Bill of Sale and the date of the affidavit, had absconded from his residence, as described in the Bill of Sale and affidavit, for America, Bacon, C. J., held that there was no misdescription to invalidate the registration (Ex parte Kahen, re Ueirer, 1882, 21 Ch. D. 871). In general, it is sufficient to state the place where the party carries on business, and in the case of a clerk the place where his employers carry on their business. This was decided in two almost simultaneous cases in the Queen's Bench and the Exchequer. The Court of Queen's Bench held that the descrip- tion " W. R. C, of King's Bench Walk, Inner Temple, in the City of London, clerk to Messrs. B. and K., of the same place, solicitors," was sufficient. Evidence was given that the clerk was to be found at those offices only during business hours, and that he had lodgings and slept elsewhere. '• The object of the Act of Parliament," said Lord Campbell, C. J., " is more effectually gained by such a description as is given here than by stating the place of his pernoctation " (Blackaell v. England, 1857, 27 L. J., Q. B. 124). The Court of Exchequer held that the description '• A. T., clerk to Messrs. M. and S., of 18 Old Broad Street, in the City of London," was sufficient. " The object of the Act," said Pollock, C. B., " was that information should be given where the person might be found, met with, seen, and inquirctl of, and where parties might be sure of getting the information they required. ... It must not be understood that we decide that the mention of the place where the man slept would not be a sufficient description of his place of residence under this Act ; we only decide that the present descrip- tion of it is sufficient to satisfy the Act " (Attenhorough v. Thompson, 1857, 27 L. J., Ex. 23). As to the place of business being the "residence" see also Hewer v. Cox (1860, 30 L. J., Q. B. 93 ; post, p. 205). The sufficiency of the description is a matter for the Judije and not for the jury (Wightman,*J., in Fhilliijs r. Burt, 1862, 2 F. & F. 862). As to the principles to be applied in determining whether a description of residence is sufficiently specific see Thorp v. Browne (1867, L. R., 2 H. L. 220), decided under a difterent Statute. " The question,'' said Blackburn, J., " is ever one of degree. A description of the i-esidence of the Duke of Devonshire as ' Chatsworth ' would 204 BILLS OF SALE ACT, 1878. not need the addition ' in the County of Derby.' Possibly, to describe Sect. 10, a residence of the Duke of Buccleuch as being in ' Scotland ' would Note (A), be sufficiently jarecise. Sometim(>s it may be enough to state the kingdom merely, sometimes the county, sometimes the parish, in which the person may dwell ; and as the position of the individual is lower on the scale of society, so more i)articularity of descrijDtion becomes necessary " {Jones V. Harris, infra). The description, "A.B., clerk to Mr. K., 73 Basinghall Street," without adding "London" or any other place, was impeached as insufficient to satisfj^ R. 138 of Reg. Gen. H. T., 1853, which required a statement of "addition and true place of abode." The Court held the description reasonably certain (Allen v. 'rJiompnon, 1856, 2 Jur. N. S. 451). An affidavit describing the attesting witness as " P. M., of the City of Cork, law clerk," was held insufficient on the ground that the statement of residence would not give any clue to the discovery of the witness (Re Hauis, 1859, 10 Jr. Ch. Rep. lOti). In the affidavit the witness described himself as residing at " Hanley, in the County of Stafford, accountant." This was held sufficient, the evidence showing that post letters with no fuller address than "Hanley" constantly reached him. "As to the description of the residence," said Blackburn, J., "it would have been better, certainly, had it been more minute ; but it is a question of degree : in some cases probably the street, and even the number of the house, would be proper and necessary ; and I quite agree with the Irish case (Re Hams, supra) that the description ' of the City of Cork ' in such a city as Cork would not be sufficient, unless, possibly, the person was one of the chief merchants there ; bvit if he were in a lower rank it would certainly not be sufficient. Hanley, however, is a very different place, and I think under the circumstances the description would be sufficient to have enabled an inquirer to find the witness readily " {Briggs v. Boss, 1868, L. R., 3 Q. B. 268). So, the description of a witness as "Law clerk, Carlow, in the County of Carlow," was held sufficient, " having regard to the size of Carlow " (McCue V. James, 1870, 19 W. R. 158). The description of the attesting witness as " W. N., of Luton, in the County of Bedford, solicitor," was held sufficient (Gardner v. Smart, 1883, 1 C. & E. 14). A witness was described in the attestation clause to a Bill of Sale in the statutory form as " C. B., clerk to Mr. R. E., solicitor, Aldershot." It was shown at the trial that this was the witness's own 5)roper address, and that letters so directed would reach, and had before reached, him in due course of post. The description was held to be good, Cave, J., characterising the objection as frivolous (Hicl-Iey v. Greenicood. 1890, 63 L. T. 288). A mere insufficiency in the descrii)tion contnineHl in the affidavit may be supplemented by reference to the copy Bill of Sale. A Bill of Sale described the grantor as " of Dynevor Lodge, in the Parish of L., in the County of C, auctioneer " ; the affidavit stated merely that the grantor resided " at I3ynevor Lodge," and was an auctioneer. The Court of Queen's Bench held that the description of residence in the affidavit was not sulficient by itself, but that the copy Bill of Sal(! might be referred to, to explain and supplement the description ; and that, as the situation of the residence was there stated with particularity enough to guide any inquiry as to the identity of the grantor, the provisions of the Statute were satisfied (Jones v. Harris, 1871, L. R., 7 Q. B. 157). The affidavit described the attesting witness as " of Ramsgate, in the County of Kent, solicitor's clerk " ; in the attestation clause he was described as " clerk to Messrs. C. & S., solicitors, Ramsgate." Mcllish, L. J., held that the description in the affidavit was in its(;lf, no doubt, insufficient, but that it was sufficiently accurate when I'cad in c-onnection witli (lie attestation clause, to which it AFFIDAVIT: DESCRIPTION OF RESIDENCE. 205 referred, and wliicli supplied all the necessarv information (Ex parte Mackenzie, re Bent, 187.i, 42 L. J., Bank. 25)." Sect. 10, In the following cases the description was impeached on the Note (k). ground, not of mere insufficiency, Imt of positive inaccuracy. The grantors of a Bill of Sale were printers, carrying on business at New Street, Blackfriars, in the City of London. Both the Bill of Sale and affidavit described them as residing at New Street, Blackfriars, in the County of Middlesex, and as printers and co-partners. The description of residence was held sufficient ; for the words " New Street, Blackfriars," without adding " in the City of London," would have been sufficient for the purpose of identification to persons dealing with the grantors, and the inaccurate addition of " in the County of Middlesex " could not have misled anyone seeking to discover their identity {Hewer V. Cox, 1860, 30 L. J., Q. B. 73). The affidavit described the grantor as of W. Rectory, near Emsworth, in the County of Hants ; W. Rectory adjoined Ihnsworth in Hants, but was, in fact, in Sussex. The description was held sufficient, Cockburn. C. J., observing that " no doubt Emsworth is the post town " (Bellamy r. Saull, 1862, 7 L. T. 269). The affidavit stated that the gi-antor resided '" at No. 73 Malpas Road, Deptford," and that the attesting witness resided " at 3 South Terrace, Hatcham Park Road." In fact, the grantor resided at 37 Malpas Road, and this address was given in the Bill of Sale. The attestation clause described the attesting witness as residing '" at 2 South Terrace, Hatcham Park Road." The Court declined to reject the numbers, and held the misdescription fatal. " The description here," said Lord Coleridge, C. .!., '" is not, as in Jonea i\ Hiirrin (ante, p. 204), an insufficient statement of the residence of these parties, but a misstatement. If an inquirer went to No. 73 Jlalpas Road, or to No. 3 South Terrace, to look for the maker of the Bill of Sale or the attesting witness, he would find someone else living at each of those places. The Bill of Sale does not, as in that case, supph^ a defect or imperfection in the affidavit ; but the one contradicts the other. Both cannot be right, and there is nothing on the face of them to show which is right" (Murray v. Mackenzie, 1875. L. R.. 10 C. P. 625). The residence of the grantor was described in the affidavit as " Nos. 9 and 9^ Trinity Street, in the County of Dublin," instead of " in the County of the City of Dublin." The residence of the attesting witness was described in the affidavit as " No. 28 Fisharable Street, in the County of Dublin," instead of " in the City of Dublin." The correct descriptions were given in the Bill of Sale. There were no such places in the County of Dublin as distinct from the City or Count}- of the City. Harrison, J., doubted whether the copy Bill of Sale could be referred to, to rectify the misdescription, as distinguished from supplementing an imperfect description (c/. Jones v. Harris, ante, p. 204). He also doubted whether the principle ''^ Falsa dernonstratio non nocet" (see Hewer v. Cox, supra) was applicable, .since the street names and numbers alone would not be a sufficient descrij)tion. The case, however, was decided on another ground (James v. Mackcn, 1878, 66 L. T. J. 139; 12 Ir. L. T. Rep. 161). The doubts expressed in this case appear to yield to the authority of the two next cases, which were decided quite indejiendent of each other. The grantor of a Bill of Sale was described both in the Bill of Sale and in the affidavit as of " Lache Hall Farm, in the County of Chester." The farm, though situate a short distance outside Chester, was really in the County of the City of Chester. There was no evidence to show that there was any other farm of the same name in the County of Chester. The Court of Appeal (James, Baggallay, and Thesiger, L. JJ.) held that there was not such an inaccuracy as was calculated to mislead any person making inquiry, or as had, in fact, misled anyone, and, therefore, that the registration was valid (Ex parte McHattie, re Wood, 206 BILLS OF SALE ACT, 1878. 28th November, 1878, 10 Ch. D. 398, following Heicer v. Cox, supra, Sect. 10, and distingnishing Murray v. Maclxenzie, supra). Xotc (k). The attesting witness was described in the attestation clause as " E. C, solicitor, Bloonifield Street, in the City of London." The affidavit was in the following form : — " I, E. C, solicitor, of 16 Bloomheld Street, in the City of London, make oath and say as follows : ' I reside at G. House, Acton, in the City of London.' " Acton is in Middlesex, and there is no Acton in the City of London. In England there are two other places called Acton — one in Suffolk, the other in Cheshire. The registration was upheld by the Court of Appeal (Bramwell, Brett, and Cotton, L. JJ.), on the ground that the words "in the City of London" were obviously erroneous, and might be rejected; and then it would be clear from the rest of the affidavit and the Bill of Sale that Acton in Middlesex was the jslace intended. In this case Brett, L. J., who thought the case indistinguishable from Heicer v. Cox, supra, observed : " I feel certain that the test is not whether the description affords the fullest means of knowledge, but whether by the use of ordinary care the person mentioned in the descrijition could be found oitt and identified" {Bloiinf v. Harris, 3rd December, 1878, ■4 Q. B. D. 603). The grantor of a Bill of Sale was described in the affidavit thus : " T. B. at present resides at 3 W. Terrace, and carries on business at B. Street, in the Town of Southampton, and has a permanent residence at 3 P. Terrace, Nine Elms, in the County of Surrey." He was the proprietor of a travelling circus, then at Southampton. He had not resided at P. Terrace for six years, but was the owner of the house, and lent it to his brother-in-law. It was objected that the description was false and misleading, as likely to induce the belief that he kept a permanent establishment there. But the description was held sufficient and proper (Cooper v. Ibberson, 1881, 44 L. T. 309). It has already been seen (ante, p. 203) that it is sufficient to state, as the " residence " of a person, the place where ho carries on business, without stating also his private residence. A similar principle has been held to apply where the person has more than one jDlace of business : it is not necessary to state them all. The grantor was described in the affidavit as a licensed victualler, of The Three Cups public-house. He also owned another public-house called "The Golden Anchor," the business of which was carried on for him by his father, in whose name the licence was taken out. The objection being taken by the trustee in bankruptcy of the grantor, the Court of Appeal held that the description was sufficient, and that it was not necessary to describe the grantor as also of The Golden Anchor (Ex parte Prnhyn, 1880, 24 Sol. J. 344). The grantor was described as residing at W. Chambers, V. Street, Westminster. He was a railway contractor, engaged at the time in the constructi(m of a railway at Bury in Lancashire. His business chambers were at the stated address in Westminster, and he had also a private residence in Kilburn. Bacon, V. C, held the description insufficient, " for, if the jierson making or giving a Bill of Sale has two residences, they ought both to be described" (Wallis v. Siiiifli, 1882, W. N. 77). Tins decision, if correctly re])orted, appears to be a mere aberration. At all events it stands alone (see Grecnhain v. Child, infra). Where the affidavit statcul that the grantor resided at 18 St. Andrew's Place, Bradford, and was a stone merchant and quarry owner. Bacon, C. J., held the description sufficient, although the grantor carried on business as lessee of stone quarries at two other places (Eu: parte KniyJitly, re Moulson., 1882, 51 L. J., Ch. 823). The grant(jr of a Bill of Sale lived and carried on business at 20 A. Grove, Penge, and had two otlior ofHces — one at Penge, the other at Croydon. There were goods comprised in the Bill of Sale at all three ])laces, and the three addresses were Htated in the Bill of Sale. The affidavit stated that the grantor resided at 20 A. Grove, in the llnndct of Penge, in the County of Surrey. This was held AFFIDAVIT: DESCRIPTION OF OCCUPATION. 207 to be a sufficient desci"ii)tioii. tlioucrh the other two places of business were not referred to (Grccniiam v. Child, 1889, 2-4 Q. B. D. 29). Sect. 10, (l) 4. Drttcriptioii uf Ucciipation. — The occupation to be described Note (l). is that at the date of swearing the affidavit, not of executing the Bill of Sale. The case of London St Westminster Loan Co. v. Chase (1862, 31 L. J., C. P. 31-4), where the contrary was decided, was disapproved in Button v. O'Neill (1879, 4 C. P. D. 354). An affidavit stated that the grantor " was until lately" a commercial traveller. It appeared that he was a commercial traveller at the date of executing the Bill of Sale. The Court held there was no description of his occupation at the date of the Bill of Sale, or of swearing the affida\'it, and that the registration was bad {Castle V. Vou-nfon, 1879. 5 C. P. D. .56). Occupation means " the trade or calling bv which the p'jrson ordinarily seeks to get his livelihood" (Kelly, C. B.,Lnck-in v. Hainbin, 1869. 21 L.T. 366) ; "the business in which a man is usually engaged to the knowledge of his neighbours " (Martin B., ibid.) ; " the business which a man follows to gain a living or obtain wealth " (Harrison, J., Re Fitzpatrick, 1886, 19 L. R. Ir. 206). See also Tiiton v. Saiioner (1858, 3 H. <& X. 280; 27 L. J., Ex. 293) and Sharp v. McHennj (1887, 38 Ch. D. 427). An affidavit which contains no description of the residence and occupation of the grantor is insufficient, even if the residence and occupation are described in the Bill of Side. "The terms of the Act," said Wightman. J., '"do not require that the Bill of Sale itself should contain any description, and do require that a description should be filed together with the Bill of Sale." Crompton, J., observed : '' I entertain no doubt that the intention of the Legislature was that the affidavit should contain the description required" (Hatton v. Englisli, 1857, 7 E. & B. 94 ; 26 L. J., Q. B. 161). A Bill of Sale described the grantor as ".J. B., of 9 George Street, Minories, in the City of London, hotel keeper." The affidavit described him as "the said J. B., of 9 George Street, Minories. in the said City of London, in the said Bill of Sale mentioned." The Court of Exchequer held that the affidavit was insufficient, since it contained no description of the grantor's occupation, either by direct statement or by reference to the Bill of Sale (Pickard v. Bretz, 1859, 5 H. & X. 9; 29 L. J., Ex. 18). So, when a Bill of Sale was attested by A., " clerk to Mr. T., solicitor," but the affidavit descnbed A. as " gentleman," and stated that he was the witness attesting the execution, it was held that the affidavit was insufficient, because it did not describe A.'s occupation (Dnjden v. Hope, 1860, 3 L. T. 280). The attesting witness to a Bill of Sale was truly described in the attestation clause as an attorney. In the affidavit he described himself as " gentleman," and, after verifying the execution and attestation, added, "and I further say that my residence and occupation hereinbefore set forth is the true description of my residence and occupation." Pollock, C. B., thought that, as the residence and occupation so verified were set forth in the Bill of Sale annexed to the affidavit, and nowhere else, the affidavit was sufficient, the residence and occupation being stated bj' clear reference to the Bill of Sale. Bramwell, B., said nothing on this point, and the case was decided on another ground {Baiihuri/ r. White, 1863, 32 L. J., Ex. 2.58). The attesting witness was truly described in the attestation clause as ' clerk to an attorney,' but in the affidavit, after verifying his signature, he described himself as a gentleman. It was held that the affidavit did not describe his occupation, either directly or indirectly bj' reference to the Bill of Sale, and was therefore insufficient. Willes, J., distinguished Banhury v. White, supra, on the ground that in that case " the affidavit contained the element, on the absence of which the whole question here arises, viz., a description by reference of the occupation of the attesting witness, and a statement of the truth of such description" {Brodrick v. Scale, 1871, L. R., 6 C. P. 98). 208 BILLS OF SALE ACT, 1878. When the occupation of the pfrantor, or an attesting witness, is Sect. 10, not stated, the onus of proving that he has an occupation lies on Note (/). the party seeking to impeach the Bill of Sale on that ground (Bath v. Sutton, infra). The term " gentleman " is a description of addition, not of occupation ; " it does not hurt, and does not amount to a misdescription " (Bramwell, B., Bath v. Sidtun, infra). But as it implies that the person so described has no occupation, the description will be bad unless this is the fact. The grantor of a Bill of Sale was described as a gentleman. He was a medical student, and had for a short time acted as a surgeon's assistant, but had never practised as a surgeon, and for six months before the trial he had had no occupation. The Court held that there was no evidence of occupation to invalidate the registration (Bath v. Sutton, 1858, 27 L. J., Ex. 388). The grantor of a Bill of Sale was described as a gentleman. He had been formerly a coal agent, but, having been dismissed, he was at the time out of employment. The registration was upheld. " The Act," said Bramwell, B., " seems to assume that every assignor of a Bill of Sale has an occupation, but such is not the case. If he has no occupation, he could not give one " (Moreicood c. South Yorlc^hire ^'c. Raillery Co., 1858, 28 L. J., Ex. 114). So, where the afiidavit described the attesting witness as " now in no occupation," and the witness had been in the militia, but (as the jury found) had no occupation at the date of the Bill of Sale, the description was held to be sufficient. The Act does not require, as a quali- fication of a witness, that he should have an occupation. If the witness has no occupation, it is not necessary that it should be given ; for lew cogit neminem ad imposnibilia (Trousdale r. Shepyard, 1862, 1-1 Ir. C. L. Rep. 370). A jierson who np to and at the time of the execution of a Bill of Sale has never been actually engaged in any trade or occupation, but who styles himself " a literary man," is well described in the affidavit as a gentleman. Where a person so described granted a Bill of Sale in June, and a jury had found in November that he was a " trader " within the bankruptcy laws, but the only evidence adduced of an act of trading was in August, it was held that there was no evidence of occuisation to invalidate the I'egistration {Graii v. Jones, 1863, 14 C. B., N. S. 743). An attesting witness was described in the affidavit as a gentleman. He had been a proctor's managing clerk, but had ceased to be so for six years. Since that time he had lived on an allowance from his mother, and had on a few occasions collected debts and written letters for other pei'sons, and had drawn four Bills of Sale, but he had no regular occupation. The description was held sufficient. "For the purposes of this Act" said Lindley, J., " there are two classes of cases — one where there is an occupation, the other where there is none. If the party has an occupation, it must be correctly described ; if he has none, it does not follow that the description of 'gentleman ' is propei', but if such an addition is in common parlance not so far inapplicable to the rank of society in which he moves as to mislead, the Bill of Sale will iu)t bo avoided if it be employed " (Smith V. Cheese, 1875, 1 C. P. D. 60). The attesting witness to a Bill desci'ibed himself in the affidavit as follows : " 1 reside at 40 B. Road, Bedford, and am a " (the occupation being left blank). He was a person of no occupation, but oc^casionally acted as Sheriil's officer. JJacon, C. J., held the descri])tioii to be sufficient (Ex parte Yoitng, re Sijmonds, 1880, 28 VV. R. 924). Tlie grantor of a Bill of Sale was described as "gentleman of no occupation." He was a country gentleman, but was a dormant partner in several firms, in one case the ])artnership being under articles, in the other cases at will. Homer, J., held that the description was substantially correct (Feast v. Bohinson, 1894, 63 L. .1., Ch. 321). II' the grantor, or attesting witness, has iiiiy office or i)ccu|i;ition, it is not siillicii'nl Id Ici'iii iiim simply "gentleman."' Where ;i clerk in llic Audit Otfice AFFIDAVIT : DESCRIPTION OF OCCUPATION. 209 was so described, the registi-ation was held to be invalid (AUen r. Thompson, 1856, 25 L. J., Ex. 249). Au attesting witness was Sect. 10, described as " gentleman." He had originally been an attorney, Note (/). though he had for many years ceased to be so. Since then, and at the date of the IJill of Sale, he had been clerk to another attorney. The description was held to be insufficient on the authority of Alien v. Thomp^fon, siupra. But the Court observed : " If tlie matter were de novo we should be of the same opinion, because this gentleman had an occupation ; it was not proved to be such as a gentleman would not fill ; but there was no descrijition of the occupation at all, though he had one, for his occupation was that of clerk to an attorney. The definition of occupation is ' the business a man follows ' " {Tufon V. Scmover, 1858, 27 L. J., Ex. 293). The grantor of a Bill of Sale was described as " gentleman." He had been managing clerk to a firm of attorneys. When the Bill of Sale was tiled he was not actually so employed, but was acting as an accountant in making up the bills and accounts of the firm, for which work he had been paid. It was held that the description was bad, for he was acting as clerk to the firm, and his situation in life was that of an attorney's clerk {Bealeii v. Tennanf, 1860, 29 L. J., Q. B. 188). The grantor of a Bill of Sale was described as " of No. 25 Bernard Street, Russell Square, in the County of Middlesex, gentleman." In reality he was in the employ of C. & Co., of Watling Street, in the City of London, as a buyer of silk. It was contended (1) that this was not a definite occupation, and (2) that it was not ccmnected with Bernard Street. But the description was held insuflRcient. " The question is," observed Cockbiirn, C. J., " had he in point of fact an occupation? He had one, and he earned his living by it " (Adami< v. Graham, 1864, 33 L. J., Q. B. 71). The grantor of a Bill of Sale was described as " of 5 Upper Montague Street, Russell Square, esquire." He was the lessee and manager of a theatre in London. Bacon, C. J., held the description insufficient, as giving no information to persons dealing with him in his business and occupation as a manager (Ex parte Hooman, re rining, 1870, L. R., 10 Eq. 63). The grantor was described as " gentleman, of no occupation." He stated that he chiefly attended race-meetings, and described himself as a backer. His brother-in-law, a hop merchant, said that there was an arrangement that the grantor should solicit orders for him, and be allowed a commission on any orders obtained. Mathew, J., found that he was, in fact, a commercial traveller, and therefore held the Bill of Sale invalid ; and the Court of Appeal affirmed the decision (Matthews v. Buchanan, 1889, 5 T. L. R. 373). The description of a woman as "widow," or "wife of A. B.," is not a descri])tion of her occupation (Doirns v. Salmon, 1888, 20 Q. B. D. 775). If she actually follows an occupation, such a descri]jtion will be insufficient. The grantor of a Bill of Sale was described as "widow." Her husband and she had been master and matron of a workhouse. Three months before his death, in 1868, he had taken a farm, and after his death the widow, as his executrix, employed a bailiff to carry it on, going there herself every fortnight for a day or two, paying wages, and giving general directions. But she had no intention of carrying it on permanently. The Bill of Sale was dated in Januarj-, 1869. Held, that she was not a farmer, and need not be described as such {Lurkhi V. Hamhjn. 1869, 21 L. T. 366). The gi-antor was described as " residing at No. 30 S. Street, North Shields, in the County of Northumberland, about to remove to the E. Hotel, North Shields aforesaid, and is a widow." She had ceased a month before to carry on the business of a licensed victualler and publican. During that month she had been in no occupaticm ; but she intended to take the E. Hotel, and resume that occupation, and she actually did so shortly after the date of the Bill of Sale. 210 BILLS OF SALE ACT, 1878. The Court of Appeal held that the description was sufficient. " The Sect. 10, clause of the Act," said Lord Selborne, L. C, " ought to be Note (l). construed with ,at least reasonable strictness. But it would be unreasonable if the occupations of the o-rantor of the Bill of Sale at some former time, or possibly at a future time, had to be set out in the Bill of Sale (? affidavit). In the present case the widow had formerly carried on the business of a publican. But that occupation is not a continuous occupation. To be an innkeeper requires the fact of the keeping of an inn ; and if we were to hold that the widow was an innkeeper when she was not keeping an inn, we should be straining the words of the Act." Lush, L. J., observed: "Anybody who looked at the affidavit would see that the widow had kept public-houses, and that she was about to keep another public-house, and also what her address was" (Ex parte Chapman, re Davey, 1881, 45 L. T. 268; affirming Bacon, C. J., Ex parte Wolfe, re Davey, 44 L. T. 321). The grantor of a Bill of Sale was described as "married woman." She was the leaseholder of a hotel, and all the dealings were in her name, but the licence was taken out in the name of her husband. It was contended that she ought to have been described as " hotel proprietor." But the Court held the description sufficient. Mathew, J., observed that she was not the proprietor, for the licence was not taken out in her name, but in that of her husband. Wills, J., added that the question of description was partly one of fact, partly one of law ; and that, assuming the facts to be true, the County Court Judge was at liberty to find that the description was sufficient (Usher v. Martin, 1889, 61 L. T. 778). The description " merchant " was held to be sufficiently specific when the grantor was a ship broker and coal merchant (Gugen v. Sampson, 1866, 4 F. & F. 974). The attesting witness, M., who resided at Hanley, was described as an accountant. He carried on the business or occupation of an accountant, as clerk to H., who resided at Manchester ; he was allowed to do occasional business as an accountant on his own account, but H.'s name was over the door of the place of business. The description was held sufficient. " I cannot doubt," said Blackburn, J., " that if any one inquired at Hanley for Mr. M., the accountant, he would have found him out as readily as under the description of clerk to Mr. H., the accountant " (Briggs v. Boss, "1868, L. R., 3 Q. B. 268). On the other hand, where the grantor was described as an accountant, but was in fact a clei'k in the accountant's department at the Euston Square Station of the London and North-Westorn Railway Company, tliough in his leisure time he was occasionally employed to balance tradesmen's books, the Exchequer Cliamber held the description insufficient; and Blackburn and IMellor, JJ., observed that in Briggs v. Boss, supra, the Court went quite as far as it ouglit to go (Larcliin v. Xortli-Westcrn Deposit Bank, 1875, L. R., 10 Ex. 64). The grantor was described as a " Government clerk," and the attesting witness as an " insurance clerk." The grantor was a clerk in the Admiralty, and the description was held to be perfectly accurate;, and quite sufficient to give the necessary information. Blackburn, J., added that the description of the witness as an insurance clerk was prirnA facie sufficient; it lay on those who said it was not to show that the witness was not what he was described (Grant v. Shaic, 1872, L. 11., 7 Q. B. 700). The attesting witness, who was a clerk in a bank, was held to be sufficiently described as "clerk," the attestation clau.se giving the address of his employers (the grantees of the Bill of Sale) and the affidavit his private residence (Lamb v. Bruce, 1876, 45 L. J., Q. B. 538). The grantor was described in the affidavit as a trader. He was a sjjirit retailer, and was so described in the Bill of Sale. Harrison, J., lield that the d(!scription " trader " was too general, and would not afford the 7iecessary infoi-malion to a ])erson searching the register, but that the copy Bill of Sale AFFIDAVIT : DESCRIPTION OF OCCUPATION. 211 might be referred to in order to explain and supplement the description (James v. Macken, 1878, 66 L. T. J. 139; followins? Jones Sect. 10, r. Harris, ante, p. 204). Note (/). The grantor of a Bill of Sale was described as a foreman tailor's cutter. This being a sufficient description of his substantive occupation, the Court of Appeal held the registration to be good, though the grantor took in lodgers at his house, where his wife also kept a boarding school (E.c parte National Deposit Bank, re Wills, 1878, 26 W. R. 624). Bacon, C. J., thought that a man who carried on more than one business must state them all (26 W. R. 375). The grantor of a Bill of Sale was described as " farmer and auctioneer." He had a London office, with a brass plate describing himself as '" auctioneer," where he had also carried on business as a bill discounter. He had not discounted anj' new bills for some time, but had attended at his office daily, and renewed old bills as they fell due. It was contended that he ought to have been described as a bill discounter. The Court of Appeal, reversing Bacon, C. J., held the descrip- tion sufficient (Ec parte National Mercantile Bank, re Haijnes, 1880, 15 Ch. D. 42). The grantor of a Bill of Sale was described as " of 57 H. Road, Upper HoUoway, in the County of Middlesex, grocer." He carried on at that address the two trades of grocer and greengrocer. The description was held sufficient, as being true and not having been shown to be misleading or intended to mislead. Lord Coleridge, C. J., observed that " a person seeking to impugn a Bill of Sale on this ground ought to get a verdict from a jurj- that someone has been misled, or get an expression of opinion from them that someone was likely to be misled " {Throssell v. Marsh, 1885, 53 L. T. 321). A widow who granted a Bill of Sale was described in the affidavit of the attesting witness as " widow and farmer." Besides being possessed of a farm, she carried on the business of a grocer and licensed vintner ; and this was the only visible business carried on at the stated address. The Irish Court of Bank- ruptcy held the description bad, because persons at a distance dealing with the grantor as a grocer and vintner, and searching the register under that description, would be entirely misled (Re Fitzpatrick, 1886, 19 L. R. Ir. 206). In the following cases the description was objected to as not merely insufficient, but inaccurate or untrue: — The grantors of a Bill of Sale, who were father and son, were described as mantle manufacturers, carrying on business together under a specified firm. In fact, the partnership had been dissolved, and the business was then being carried on by the father alone, the son being in his employment as a clerk. The property belonged to the father alone, and the father alone filed a liquidation petition. The Coiu't of Appeal held that any misdescription of the son was immaterial ; and that, as to the father, the statement that he was carrying on business with the son was mere surplusage and was not misleading, and therefore the descrip- tion of his occupation was sufficient {Ex parte Poppleicell, re Storey, 1882, 21 Ch. D. 73). E. R., the grantor of a Bill of Sale, was described as " carrying on business as a wine and spirit merchant and dealer in provisions and general goods at 4 D. Street, Liverpool, under the style of ' The London and Westminster Supply Association — E. R., General Manager.'" He had, in fact, carried on that business as sole owner till March. The plaintiff (the grantee of the Bill of Sale) then became sole owner, and E. R. remained as sole manager till June. From that date till the date of the registration the plaintiif supervised the e ante, pp. 105 to 107. Where a Bill of Sale was given by a trading company, an affidavit, stating their trade name ("The Glucose Sugar and Colouring Co.") and the address of their principal office, was held to give a sufficient description of their residence and occujjation (Shears v. Jacob, 1866, L. R., 1 C. P. 513). But as to charges by incorporated companies see now Section 17 of the Act of 1882, post. (n) " The Statute retiuires a similar description with respect to every attesting witness to that rcnjuired witli respect to the maker " (Willcs, J., lirodrick V. Scal4,\^1l, L. R., 6 C. P. 98 ; Tuton v. Sanoner, 1858, 27 L. J., Ex. 293). There must l)e a description with respect to evenj attesting witness, if more than one. Where a Bill of Sale was attested by two witnesses, and the affidavit contained a description of the residence and occupation of only one of them, the registration was held to be invalid (Xiclialson v. Cooper, 1858, 27 L. .1., Ex. 393; DEFEASANCE, CONDITION, OR DECLARATION OF TRUST. 213 FniihhiiKiiir V.Lee, 1«58, 7 Jr. (.'. L. Ko]>. 350; Pirkurd v. Mun-itKje, 187(j, L. R., I Ex. D. MA). Hut in oiio case tlie Court of Exchequer Sect. 10, refused to declare a liill of Sale void where one of the attesting Note (w). witnesses was not described, but tlie objection had not been taken at the trial [Bath v. Siittun, 185K, 27 e'. J., Ex. 388). In the Act of 1854 the words referring- to the execution of process were not in brackets; and it was more than once contended, withoTit success, that the description of every attesting witness was only i-equired in the case of a Bill of Sale given by the Sheriff under an execution, and not in the case of a Bill of Sale made by tlie owner of the goods (see Fonhlanque e. Lee, sitpra; Brodrick v. Scah^, liiipra ; Plckard v. Marriage, .viipra). Where a trading company gave a J5ill of Sale in security for a debt, directors who countersigned the seal were held not to sign as attesting witnesses, and therefore it was not necessary that the affidavit sliould describe their residence and occupation (Sheara v. Jacob, 1866, L. R., 1 C. P. 513: Deffell v. Wldte, 1866, L. R., 2 C. P. 144). But under the Act of 1854 it was not necessary that a Bill of Sale should be attested at all (see ante, p. 137) . As to Bills of Sale granted by incorporated companies see now Section 17 of the Act of 1882, pcsf. (o) The "registrar" is defined by Section 13, post. The functions of the registrar are merely ministerial and not judicial. He has no power to reject an affidavit because he thinks it does not comply with the requirements of the Act (Needhaiii to Johnson, 1867, 8 B. & S. 190). " The registrar has no option in the matter; he must take the copy of the Bill of Sale and the affidavit as they are presented to him, and must file them " (Jessel, M. R., in Ford c. Kettle, 1882, 9 Q. B. D. 139). By Section 41 of The Stamp Act, 1891, it is now enacted: "A Bill of Sale is not to be registered under any Act for the time being in force relating to the registration of Bills of Sale unless the original, duly stamped, is produced to the proper officer." For the stam]j duties payable on Bills of Sale see notes to Section 18, jio.sf. As to the rectification of the register see Section 14, post. (p) As to the " seven clear days " see note (d) to Section 8, ante, p. 189 ; and as to the reckoning of time see Section 22, post. As to the registration of Bills of Sale executed out of England see Section 8 of the Act of 1882, poxt. (i/) The Act which retjuired warrants of attorney to be filed was 3 Geo. IV. c. 39 — " An Act for preventing frauds upon creditors by secret warrants of attorney to confess judgment " - from which several provisions of The Bills of Sale Act, 1854, were taken almost rerhatiui (see poxt, pp. 222, 235). (*■) This provision as to " defeasance, conditio!], or declai'ation of trust " has recently given rise to cases of much difficulty. It does not appear that any doubt or difficulty was felt in the cases under the Act of 1854. In Rohinsdn v. Collingivood, infra, the Court held that, looking to the preamble and the whole of the Act, the term " declaration of trust " must mean a declaration of trust in favour of the grantor. The term " condition " seems to have been understood in its technical sense in Ex parte Collins, re Lees (1875, L. R., 10 Ch. 367), where James, L. J., observed : '" Conditions may be either precedent, subseciucnt, or inherent. A condition is precedi'nt where, unless it is complied with, the estate does not arise ; it is subsequent where, if it is broken, the estate is defeated ; it is inherent whei-e the estate is (qualified, restrained, or charged by it ; in every case it denotes something which prejudicially affects the interest of the donee." The terms "defeasance" and "condition" wei-e also understood in their technical sense in E.v parte Poppleirell, re Sforcij (1882, 21 Ch. D. 73), where Jessel, M. R., obsei'ved: " A defeasance is something which defeats the operation of a deed, but is contained in some other deed or document. If it is contained in the same deed 214 BILLS OF SALE ACT, 1878. it is called a condition. A condition is something which defeats or Sect. 10, qualifies an estate " (compare Com. Dig. " Defeasance," A ; see also Note (r). per Lord Esher, M. R., aTid Lindley, L. J., Blaiherg v. Beckett, 1886, 18 Q. B. D. 96). It has, however, been recently decided by tlie Court of Appeal (1) that in this Section "defeasance" is contradistinguished from "condition" (Heseltine v. Siminons, 1892, 2 Q. B. o47) ; and (2) that the term " condition " includes not merely a condition prejudicially affecting the grantee, but also one which affects the interest of either party {Edwards v. Marcus, 1894, 1 Q. B. 587, disappi'oving the dictum of James, L. J., in Ex parte Collins, supra). This decision is certainly a departure from the original meaning of the Legislature, and is hardly intelli- gible, except as an instance of a more general change of view (see ante, p. 3). It may seem convenient for the purposes of the Act of 1882, which substantially deals with contracts of loan, that the term " condition " should be understood, not in the technical sense of the conveyancer, but in the wider sense which obtains in the law of contract. But this makes it doubtful what is meant by " defeasance." The tendency of the Courts seems to be to I'egard it as equivalent to a " term for the defeasance of the security " : that is to say, a condition in the nature of a defeasance (but see note (*'), infra). It would seem, however, to be no longer a tenable view that a " defeasance " must be in writing (see Ex parte Poppleivell, re Storey, supra, where Jessel, M. R., stated that a parol agreement cannot be a defeasance of a Bill of Sale). Some of the simpler cases may be disposed of in connection with the three leading cases of Robiiisoii v. CoUingwood (declaration of trust), E.c parte Soutliani (condition), and Ex parte Odell (defeasance). In Robi^ison v. CoUingwood (1864, 34 L. J., C. P. 18) a Bill of Sale of furniture and effects was given by A. to B., a solicitor. The person who actually advanced the nioiioy for the purchase of the goods was C. (B.'s client), whose name did not apjjear in the Bill of Sale. The Coiirt held, on an interpleader issue, that though B. might be treated in Equity as a mere trustee, there was no trust or declaration of trust which need appear on the face of the instrument under Section 2 of the Act of 1854. Erie, C. J., observed that '' the object of the provision was to prevent creditors being defrauded by sham Bills of Sale, by which the whole interest of the gi'autor is apparently transferred, whereas in reality he retains some interest in the subject of the transfer. But, provided the grantor retains no interest, it does not make any difference to a creditor whether the grantee under the Bill of Sale holds the property for himself, or in trust for someone else." Byles, J., added that "if it were otherwise it would be highly incon- venient, because if a number of persons chose to advance money on a Bill of Sale, and were desirous of taking the security in the name of one only, who was to hold as trustee for the rest, it would be necessary to explain all this on the registered Bill of Sale." The following cases raised questions resembling that in Robinson v. CoUing- wood, supra. In Melville v. Stringer (1884, 13 Q. B. D. 392) a Bill of Sale was held to be void under the Act of 1882 because it was given to foui' sets of mortgagees to secure four several debts, there being power to seize and sell on default in payment of any sum thereby secured. Fry, L. J., suggested that t\tc transaction might have been carried out by an assignment to a trustee " with all the facts recited." Bowen, L. J., thought that " the property must be assigned to the person who finds the money," and that an assignment to a trustee to secure the rejjaymcnt of money for those benehcially interested therein would bo inconsistent with the statutory form (see Ex parte Tarbuck, infra). In Cochra.ne V. Moore (1890, 25 (I. B. D. 57; ante, p. 101) a person who had made an ineffectual gift to A. of an undivided fourth sliaro in a horse afterwards gave a Bill of Sale of the iiorse to a third party. At the linie of executing tlu" Hill of Sale the DEFEASANCE, CONDITION, OR DECLARATION OF TRUST. '215 grantee was iiitV)rinc(l of A.'s interest in the horse, and verbally undertook that it should be " all right." It was held by Bowen Sect. 10, and Fry, L. JJ., that the grantee was thereby constituted a Note (r). trustee for A. of one-fourth of the horse. As the Lords Justices proceeded to hold the Bill of Sale void on another ground, it may be inferred that they did not regard this as a "declaration of trust," the omission of which would avoid the registration. In Thomas v. Searles (1891, 2 Q. B. 408) it was held that an agreement by the grantor to apply part of the money advanced to him in discharging a debt owing by him to the grantee on a prior Bill of Sale over the same chattels is not a " trust " ; and that the Bill of Sale need not refer to the intended application of the money. " I think," said Lindley, L. J., " the Section means that the Bill of Sale must be subject to some trust by which the holder is bound in order to come within the prohibition." Nor is it necessary that any collateral stipulations as to the application of the consideration should be set forth as part of the true statement of the considera- tion (see Ex parte National Mercantile Bank, re Haynes, 1880, 15 Ch. D. 42 ; and notes to Section 8 of the Act of 1882, post). In Ex parte Tarhuch, re Smith (18fM, 43 W. R. 206), Smith and his partner, being in difficulties, made an assign- ment of their property to a trustee for the benefit of creditors. Six of Smith's friends, including Tarbuck, clubbed together to buy back the business for him. The purchase-mcmey — £600 — was paid at different times, and the trustee assigned the business to Smith. In July Smith gave a Bill of Sale to Tarbuck to secure the £600. On 1st September Tarbuck gave a memorandum to the other contributors, acknowledging that he held the Bill of Sale as trustee for them. Smith having afterwards become bankrupt, it was held by Vaughan Williams and Kennedy, JJ., that the memorandum was not a defeasance or declaration of trust within this Section. In Ex parte Southam, re Sontham (1874, L. R., 17 Eq. 578), a Bill of Sale of furniture was given to secure the purchase price thereof, which was made payable on demand, the grantee having power to take possession on default. In fact, a prior parol agreement had been made that the debt should be paid off by small weekly instalments, and that if the grantor paid the instalments regularly the Bill of Sale" should not be enforced. Bacon, C. J., held that this agreement was a " condition" within the Act of 1854, and that, as the agreement was not registered, the Bill of Sale was void against the trustee in bankruptcy of the grantor. The following decisions appear, like Ex parte Southam, supra, to turn chiefly on the word "condition." A Bill of Sale was given nominally to secure the repayment of an advance of £130 by certain instalments without intei-est, the whole sum to become due on default in payment of any instalment. The sum really advanced was £100, the grantee making a charge of £30 by way of bonus and "interest. At the time of executing the Bill of Sale the grantor signed a written memorandum stating that the £30 was to be paid in full, notwithstanding that the money secured by the Bill of Sale might be repaid, or the mortgagee's rights under it enforced, before the expiration of the time limited for repayment. The Lords Justices, reversing Bacon, C. J., held that the memorandum was not a condition within the Act, and that its not being registered did not affect the validity of the Bill of Sale (Ex parte Collins, re Lees, 1875, L. R.. 10 Ch. 367). Thoug'h the dictum of James, L. J., in this case (ante, p. 213) was disapproved by the Court of Appeal in Edvards v. Marcus, supra, the Coiu-t approved the actual decision that the memorandum was not a condition differing from the Bill of Sale, or affecting the title of the donee. The grantee of an unregistered Bill of Sale having taken possession of the goods, a new Bill of Sale was executed and registered. At the same time the grantor signed a document, agreeing that the execution of the new Bill of Sale should not prejudice the possession taken under the fonner one, and that the grantee might take all such steps as he 216 BILLS OF SALE ACT, 1878. could have done if possession had been taken under the new Sect. 10, Bill of Sale. Bacon, C. J., held that the agreement was not Xote (/•). such a defeasance or condition as would require registration {E.v parte Furher, re PeUeiv, 1877, 6 Ch. D. 181). The grantee of a Bill of Sale dated in 1880 verbally agreed not to register it, in consequence of which he charged a larger bonus for the advance than he would otherwise have done. It was held by the Court of Appeal, affirming Bacon, C. J., that the agreement was not a defeasance or condition, but a mere collateral agreement. " It is argued," said Jessel, M. R., " that the agreement not to register the Bill of Sale, if carried out, might defeat its operation in certain events : that is, in case of the bankruptcy of the grantors, or the case of an execution being levied on the goods. That is not so, nor was it ever intended by the parties; it was never intended to defeat the estate as against the grantee. The object was to protect the grantors' credit. They did not want to protect their creditors. It is an incident of the Act that it might defeat the grantee's security, but it would have been entirely contrary to the intention of the parties if the agreement had been inserted in the deed. It is not a condition ; it is a mere collateral agreement, and it is not within either the words of the Act or their fair meaning" (Ex parte PoppleiceU, re Storey, 1882, 21 Ch. D. 73). On a sale of a business and stock-in-trade by Bill of Sale, it was agreed that the vendor should continue manager of the business, but the agreement was not mentioned or referred to in the Bill of Sale. On this ground, and also because of a misstatement of the consideration, the County Court Judge (Birmingham) held the Bill of Sale void against an execution creditor of the vendor. But the Divisional Court gave no opinion whether the agreement was a condition within tlie meaning of the Act (Cohen v. Higcjins, 1891, 8 T. L. R. 8). The plaintiff gave a Bill of Sale to the defendant to secure repayment of an advance by monthly instalments. On paying the first instalment he received from the defendant a book for entry of receipts, on one cover of which was printed a " notice to borrowers," and on the other a set of "rules and regulations which are strictly adhered to." The rules and regulations stated that in case of default in any payment the whole amount remaining unpaid would become due and payable, and contained several other provisions affecting the position of borrowers, which were not contained in the Bill of Sale. In an action to set aside the Bill of Sale, the Court of Appeal, reversing Kekewich, J., held that there was no condition or defeasance which formed part of the bargain so as to invalidate the Bill of Sale, since tlie plaintiff knew nothing about the rules and regulations until a month after the transaction was completed (Linfoot v. Focketf, tradittg as " Wilberjorce," 1895, 11 T. L. R. .590). As to whether a stipulation of this nature, when forming part of the bargain, is a "condition" or a "defeasance" sec note on CounseU's case, post, p. 218. In Ex parte Odell, re Waldeii (1878, 10 Cli. 1). 7(> ; init>\ p. ;52), a hiring agree- ment was held to o])erate as a flcfeasuncc of an cr facie ^Vbsolute Hill of Sale, the two ilocuments together forming one assurance or mortgage. But a hiring agreement, entered into as a separate and distinct transaction after a bond fide sale of chattels, is not a defeasance (Ex parte McShane, re McGinitij, 1884, 29 Sol. J. 70 ; ante, p. 35), nor is a collateral agreement on the sale of chattels that, if the purchasc-nnniey is re])ai(l, tlic iiropcrty shall revest, a defeasance of the sale (Thomson v. Barrett, IHOO, 1 L. T., N. S. 2(58; ante, pp. 11, 31). See also Chapter on "Real and Fictitious Transactions," ante, pp. 30 to 41. We now come to a confused and perplexing scries of cases in whit'li tlic current of authority is neither contimious nor consistent. Most of these cases deal witli the effect of a collateral security upon a Bill of Sale in the statutory form; s(k'enu!d u])on tlic pcrl'ormance of a condition not contained in the Hill of Sale, but in another unregistered document. The promiKsoi-y note constitutes a defeasance within Section 10." The principle of this iinpf)rtant decision was afterwai'fis stated by Cotton, L. .1., to be that DEFEASANCE, CONDITION, OR DECLARATION OF TRUST. 219 " the two instruments, taken together, contained the actual terms of the loan between the parties. The promissory note was in fact Sect. 10, a defeasance, because, if the whole sum payable on the note were Note (?•). paid, the rights of the Bill of Sale holder would cease. It was a contract between the parties containing terms upon which the contract created by the Bill of Sale would come to an end" {Carpenter v. Been, infra). On the other hand, Kay, L. J., has since expressed the opinion that in Connscirx case the stipulation in the promissory note was. " not in any sense a defeasance of the Bill of Sale, but a condition of the payment of the debt secured by the Bill of Sale, which ought to have been included in the Bill of Sale," — a ct)ndition "entirely in favour of the grantee of the Bill of Sale" (Edii:ard.< v. Marcus, infra). It should be noted that in Cownsell's case the Court did not at all decide whether the Bill of Sale was void under Section 8 or under Section 9; and that no question seems to have been raised as to the validity of the promissory' note. In Monetary Advance Co. v. Cater (1888, 20 Q. B. D. 785), the facts as to the terms of the Bill of Sale and of the promissory note were indistinguishable fronr those in CounseU's case, supra, and it seems to have been assumed that the Bill of Sale itself was void under Section 9. The grantee sued to recover the balance of principal and interest due on the promissory note. The County Court Judge held that, the Bill of Sale being void, the promissory note also was void. But, on appeal, the Divisional Court (Cave and A. L. Smith, JJ.) held that the plaintiffs were entitled to recover. The Court distinguished Darie-'f v. Rees (1886, 17 Q. B. D. -408), where it was decided that if a Bill of Sale is void under Section 9 the grantee cannot recover on the covenant for payment contained in the Bill of Sale. " In the present case," said Cave, J., " the promise to pay is contained in another document, which gives the grantee no right in respect of the personal chattels included in the Bill of Sale. No Statute enacts that the promissory note shall be void, and the defendant cannot say, as in Davies v. Rees, that it is an integral part of that Bill of Sale which the Bills of Sale Act declares void." If the Bill of Sale was void under Section 9 this decision appeai-s to be inconsistent with the decision of Stephen, J., in Griffin c. Union Deposit Bank, supi'a, and in any case it appears to be inconsistent with the case of Siinp.'^on v. Charing Cross Bank, ^upra. In Onn v. Fisher (1889, 5 T. L. R. 50-4) a Bill of Sale and a promissory note constituted one transaction to secure a loan of £60. The Bill of Sale provided for payment of £'60, with intei'est at 40 per cent., by weekly instalments. The promissory note was made for £85, being £60 and £25 interest thereon, payable on demand. The facts were therefore indistinguishable from those in CounseU's case, supra, except in this respect — that the promissory note was made jointly and severally by the grantor of the Bill of Sale and three other persons as sureties. Chitty, J., held that this fact made no difference, that the unity of the transaction as between grantor and grantee was not affected by the circumstance that the sureties, if sued severally, could recover anything paid by them from the grantor of the Bill of Sale. This seems to have been an action to set aside the Bill of Sale ; but it does not appear that any question was raised as to the validity of the promissory note. In Carpenter V. Been (1889, 23 Q. B. D. 566) a Bill of Sale assigned certain chattels by way of security for the payment of a debt of £200 and interest. At the same time the grantor dejiosited with the grantee, as further security for the loan, a policy of assurance on his life for t'-lOO, but the deposit was not accompanied by any letter or memorandum, nor was it in any waj' referred to in the Bill of Sale. On an interpleader issue, the execution creditor contended that the policy was in the nature of a defeasance or condition within this Section. The Court of Appeal held that the objection could not prevail. Cotton, L. J., 220 BILLS OF SALE ACT, 1878. (ihscrvcd : ■" This is not a ' tlefoasaiice ' within the terms of that Sect. 10, provision. It is true that if tlio money produced by the policy of Note ()•). assurance were apj^lied in payment of the debt it would put an end to the Bill of Sale, but this is not what is pointed at by the Section." The learned Lord Justice distinguished Counsell's case, supra, on the ground that there the promissory note was in fact a defeasance : " It was a contract between the parties, containing terms upon which the contract created by the Bill of Sale would come to an end." In Heselfine v. Sinuiiuns (1892, 2 Q. B. 5-47) the grantor of a Bill of Sale brought an action seeking to have it cancelled. The defendant counterclaimed for the amount due on the covenant in the Bill of Sale. Denman, J., found that it was agreed between the parties, as a substantial part of the bargain at the time when the Bill of Sale was given, that it should not be made available against the grantor until the defendant had attempted to realise and had exhausted certain other securities given him for the advance. No stipulation to that effect was inserted in the Bill of Sale. On this ground, and also because of a mis-statement of consideration, the learned Judge held the Bill of Sale void under Section 9, and gave judgment for the plaintiff also on the counterclaim. But on appeal the Court of Appeal varied the judgment by declaring that the Bill of Sale was void in respect of the personal chattels comprised in it : i.e., under Section 8. As regards the counterclaim, the appeal was dismissed, not on the ground that the covenant was void, but because the evidence showed that the other securities had not been exhausted, and therefore the counterclaim was premature and improper. Kay, L. J., delivering the judgment of the Court, said : " The omitted term here was not, in my opinion, for defeasance. It was an agreement by the grantee to exhaust other securities given him for the same debt before resorting to this. It is argued that, if he did so, that would defeat his security to the extent of the payment so made. That is a complete misapplication of the word ' defeasance.' A debt is not defeated by being paid. A security is not defeated by payment of the debt. There is nothing in the alleged agreement which defeats any of the provisions of this deed." The learned Judge then stated that in this Section "defeasance" is contradis- tinguished from " condition,". and argued that the omission of a " condition" would only avoid the Bill of Sale under Section 8; for (as the learned Judge afterwards said in Edwards v. Marcus, infra) " Section 9 of the Act of 1882 docs not contain anything which requires accuracy of statement or representation, or a statement of the whole bargain in the body of the Bill of Sale." He then expi'essed the opinion that the agreement in question was a strictly collateral agreement not inconsistent with the Bill of Sale. The avoidance of the Bill of Sale in this case seems therefore to depend on the mis-statement of consideration alone, for, whatever the term "condition" means, it would appear not to include a "strictly collateral agreement" (cf. Jessel, M. R., in E,r parte Fopplca-cll, ante, p. 210). In l':.hrards v. Marrns (1894, 1 Q. B. 587), a husband uiid wife gave a Bill (if Sale of chattels to secure the repayment of £300, with simple interest, jjayable by instalments. On the same day, and as part of the same transaction, the wife mortgaged her reversionary interest under a will to secure the repaynient of the same sum with compound intei-est, payable by the same iustabncnts. Tlic Hill of Sale was duly I'ogistcred, but (he mortgagee was not. On an interph-adcr b(;tvve('n the grantee and an execution creditor of the grantors, the Court of Appeal held that the agreement in the mortgage to pay compound interest was a condition within the Sub-section, and that the Mill dl' Sale was void in respect of the chattels comprised in i(. Ill this case all ilic Lords Justices disapproved the diclmu of Jaini'S, L. J., in E.i: parte Callivs {iiuir, p. 213), and held that it makes no dilTerence whether the omitted cojidition is in favour of the grantor or the grantee. " Any condition," said DEFEASANCE, CONDITION, OR DECLARATION OF TRUST. 221 Lindley, L. J., " whether it is prejudicial to one party or to the other, seems to be within the mischief struck at, and that was Sect. 10, tlie view taken by the Court in CoanselVn case," >;upra. The Note (v). f^rounds on which the judgment of Lindley, L. J., proceeded were that th(^ Bill of Sale did not contain the conditions on which the borrowers of the money were to discharfje their indebtedness, and that the grantee could hold the cluxttels (as against the wife at least, if not against the husband) until he was paid his principal and compound interest — a proi)osition ditficult to reconcile with the language of Cave, J., in Monetary Adnince Co. v. Cater (ante, p. 219). The Lord Justice added that, " looking at the matter as men of business, the result is that you cannot split the bargain, and put into the Bill of Sale what is allowed by the Statute, and what is not allowed into the contemporaneous mortgage." Kay, L. J., observed that "' if the Bill of Sale is given subject to a condition which is not e.xpressed on the face of it, it does not matter in whose favour that condition is ; whether in favour of the grantor or grantee, that Bill of Sale does not express the true contract between the parties, or the terms on which the chattels were to be redeemable, and, therefore, the Bill of Sale is hit by this Section, and is void as to the chattels comprised in it." A. L. Smith, L. J., stated the principle of CoiinfeU'.-i case, supra, as follows : " If there is one contract in two documents, and there is anything in either which sins against the Bills of Sale Act, the contract in two documents cannot stand, and the Bill of Sale must be set aside. Lord Esher, in that case, says that such a contract as the present does sin against the Bills of Sale Act, because, when the one contract in the two documents is read, there is a condition in the contract which does not appear in the Bill of Sale." There is a curious similarity between this statement and the language of the Court in Siinpsoii v. Charing Cross Bank (ante, j). 217). But the reader will see that the latter end of this chain of authorities has devoured the beginning thereof. For, if the Bill of Sale is void under Section 8 and not under Section 9 the covenant for payment is not avoided, and it would seem a fortiori that there is nothing to invalidate the promissory note or deed of covenant. In the following note the author has Ventured to submit another solution, approaching the subject from a different point of view. (.s) If this Sub-section is not complied with, the registration is to be void. Under this Act the consetpiences would be (1) that the Bill of Sale is unregistered, and void as against the persons enumerated in Section 8, ante ; (2) that it is liable to be postponed under this Section to a later Bill of Sale duly registered; and (3) that in case of bankruptcy the goods are not ])rotected by Section 20, post. Under the Act of 1882 the consequences of non-compliance are not so clear. It seems from the decision in Hescltinc r. Simmons (1892, 2 Q. B. 547; ante, p. 220) that a distinction must be drawn between a " defea- sance " on the one hand and a " condition or declaration of trust " on the other. A " defeasance " must be inserted in the body of the Bill of Sale in the form of a "term for the defeasance of the security " ; and the omission will avoid the Bill of Sale under Section 9. But there is, it is said, nothing in Section 9 or the statutory form which requires that a " condition or declaration of trust " should appear in the body of the Bill of Sale ; and therefore the omission to register a " condition or declaration of trust " merely renders the registration void, and so avoids the Bill of Sale under Section 8 " in respect of the personal chattels comjjrised therein." This appears to be the effect of Heseltine r. Simmons and Edicards v. Mtirctis, supra. It is with great hesitation that 1 ])ro('(H'd to offer a new suggestion towards the construction of this Sub-section, esjx'cially in connection with lli(> Act of 222 BILLS OF SALE ACT, 1878. 1882. To piit the reader on his guard ag-ainst accepting too readily Sect. 10, the conclusions to which I have come, I shall use the first person Note (.s). in the rest of this note. It ajjpeai'S to me that the difficulty is partly caused hj over- looking the settled meaning of the words " defeasance " and " condition." At Common Law, an estate or obligation is not absolute but conditional, if it is made or given " subject to a defeasance or condition." " It is called an estate ujDon condition, because that the estate of the feoffee is defeasible if the condition be not performed" (Co. Litt. 201 a). "A defeasance is an instru- ment which defeats the force or operation of some other deed or estate ; and that which in the same deed is called a condition in another deed is a defeasance. As if a man covenants or grants that, U})on payment of a less sum at such a day, an obligation, recognisance, &c., shall be void " (Com. Dig. " Defeasance," A). If the words are used in tliis Act in their technical sense, they are equivalent terms, equally connoting a provision in favour of the grantor, whereby the Bill of Sale is made not absolute but conditional. In The Bills of Sale Act, 1854, Section 1 enacted that the Act was to apply to every Bill of Sale made " either absolutely or conditionally, or subject or not subject to any trusts"; and Section 2 made provision for Bills of Sale which were not absolute, but were made or given " subject to iiny defeasance or condition or declaration of trust." In this Act, unfortunately, Section 3 applies the provisions of the Act to ever}^ Bill of Sale, " whether the same be absolute or subject or not subject to any trust," the omission of the words " or conditional " being a mere logical and grammatical error (see avfe, p. 148) ; and the provision for registering a " defeasance, condition, or declaration of trust," instead of immediately following Section 3, is removed to the present Section, thereby obscuring the intention of the Legislattire. This Sub-section, it is submitted, ought to be read along with Section 3, as Section 2 of the Act of 1854 was obviously framed with direct relation to Section 1. But this is not the only clue to the meaning of the Sub-section. The origin of the words is clearly ascertainable. The words of the Sub-section were adapted from Section 4 of 3 Geo. lY. c. 39 — " An Act for preventing frauds upon creditors by secret warrants of attorney to confess judgment " — which gave legislative effect to a rule of the Common Law Courts (Reg. Gen. Mich., 43 Geo. III.). By that Section it was provided: "That if such warrant of attorney or cognovit shall be given subject to any defeasance or condition, such defeasance or condition shall be written on the same paper or ])archment on which such warrant of attorney or cognovit actionem shall be written, before the time when the same or a copy thereof respectively shall be filed ; otherwise such warrant of attorney or cognovit actionem shall be null and void to all intents and purposes." The meaning of the Legislature appears from S(>ction 5 and the Schedule to the Act : the officer was to enter in his books " the sums for which judgment is to be entered up, and also the aitiiiK which are Kpecified to he paid by the defeasances or conditions in each warrant of attorney or cognovit actionem, and the times ■when the same are thereby made payable." The Schedule to the Act, under the coliimii headed " Defeasance," inserts, by way of example, the words " To seciii'e £500, i)a\able &c." (see also 12 & 13 Vict. c. ion, s. 136, and 32 & 33 Vict. c. ()2, 's. 2G). The meaning was that if the warrant of attorney was not intended to be absolute, but was given conditionnlly to secure the jiaymeut of a debt, the terms of the "defeasance or condition " were to ap])ear on the; register. Th(> Hills of Sale Act, 1854, used tiie sarru! words to nu-et the case where the gi-antor of an ap])arently absolute Bill s. wliirli set out tlu> conditions on wjiicli 224 BILLS OF SALE ACT, 1878. tlie chattels are redeemable. It is ([iiite iimnaterial whether the Sect. 10, variance between the omitted bargain and the condition contained Note (.^). in the body of the deed is in favour of the grantor or of the grantee. The two clauses cannot stand together ; and solely on the ground of that variance, the Bill of Sale would be void as not being in accordance with the statutory form. There are one or two ditficulties in the cases with which I do not profess to deal, especially the question of the validity of a promissory note &c. ; but this appears to me to be the only construction which restores the sense of the words " defeasance or condition," and which gives a satisfactory view of the relation between the statutory form and the provisions of this Sub-section. I may add that I think it worthy of consideration whether the decision in Carpenter v. Been (aufe, p. 219) gives due effect to the intention of the Act. It should be observed that the provision was designed for the protection of creditors. It is material that creditors should be informed that the assignment of the chattels by the grantor is not absolute, but only by way of security. It would seem to be equally material that creditors should be informed that the sum chai'ged on the chattels is liable to be extinguished or reduced in a certain event: viz., by the realisation of a collateral security. On this ground it was held, in the case of warrants of attorney, that a defeasance was defective if it did not set out collateral securities for the debt (see Morell v. Diihoxt. 1810, 3 Taunt. 235; Sanborn v. Gm(>nt of tlie former law bv the same eminent Judge in Men.c r. Jacohs (1875, L. 11., 7 H. L. 181). Chattels were assigned to A. by a Bill of Sale dated Itli October, which was not I'egistered. On 8th November the grantor gave ii Hill of Sale of the same chattels to B., which was duly registered. A. seized the goods under his Bill of Sale on 26th November ; and the following day B. gave notice to A. that he claimed the goods. In an action for (conversion brought by B. against A., the Divisional Court held that A.'s title was good. Grove, J., chiefly I'elied on the unttmable gi-outid that the clause did not apply as betwceii a registered and an niiregistcred Hill of Sale, the words " iheir rc'gistratiou " imj)lying that in order t(i be within the clause both Bills of Sale must be registered. Lindley, J., was ol' cipinion that the words slmnld bo construed as applying only in cases of bankruptcy or execution etc. under Section 8, there being nothing in this Act PRIORITY OF BILLS OF SALE. 225 except the wonls under discussion to sliow that the Legislature intended to alter the general scope and drift of the Act of 1854. But Sect. 10, this judgment was reversed by the Court of Appeal, on the authority Note (f). of Conellij V. Steer, ^upra, which had been decided in the mean- time. A faint attempt was made to distinguish the case on the ground that the grantee of the unregistered Bill of Sale was in possession of the goods, but the Court held that this was immaterial (Lunii^ r. Tiicl-er, 1881, 7 Q. B. D. 52S). It is instructive to read the report of this casein the Divisional Court {Lijons V. Tucker, Q. B. D. 660), where the question was very thoroughly considered. One difficulty was felt by both Grove and Lindley, JJ.: viz., if the clause was not intended to be of general application, what reason was there for enacting it in the event of execution or bankruptcy ? The learned Judges naturally overlooked the difference in language between Section 1 of the Act of 1854 and Section 8 of this Act, the significance of which was afterwards pointed out in Ex parte Blaiberg, re Toomer (iinte, p. 191). Suppose that goods, which were subject to two Bills of Sale — the first unregistered, the second registered — were taken in execution. Under the Act of 1854 the order of priority was: (1) the registered Bill of Sale ; (2) the execution creditor. The holder of the unregistered Bill of Sale was displaced altogether (see Richards r. James, ante, p. 76). Under Section 8 of this Act, if it stood alone, the order of priority would be : (1) the execution creditor to the extent of his claim; (2) the holder of the unregistered Bill of Sale in respect of the residue of his debt ; (3) the holder of the registered Bill of Sale, who had simply the rights of a second mortgagee, and was neither better nor worse for the execution. The new enactment as to priority was therefore necessary to restore the registered Bill of Sale to the place of priority from which it had been removed" by the language of Section 8. This consideration goes some way to corroborate the reasoning of Lindley, J., which seems other- wise to be in liarnionv with the reasoning of the Court of King's Bench in Morris r. Mellin (1827, 6 B. & C. 446) and Bennett v. Daniel (1830, 10 B. & C. 500). But there are anomalies either way; and the decision of the Court of Appeal is certainly more workable in connection with the Act of 1882. The provision ai)plies to absolute assignments as well as to assignments by way of security. The owner of certain household furniture assigned it in 1885 by a deed of absolute gift to his wife (the plaintiff), and the goods were soon afterwards transferred to his son's house, where the plaintiff lived. This deed was not registered. In 1888 the grantor executed a Bill of Sale to the defendants as security for a loan, which was registered. After the death of the grantor the defendants seized the goods, and the plaintiff brought an action to restrain them from dealing with or remaining in possession of them. Cotton and Fry, L. JJ., held that the defendants would have been entitled to priority under this Section but for the provisions of Section 5 of the Act of 1882, under which Section the grantor, having parted with all his interest in the goods, was not the "true owner'" at the date of the second Bill of Sale. Lopes, L. .J., thought the defendants were entitled to priority notwithstanding that Sectitm, which, in his Lordship's opinion, was limited to after-acquired property (Ti(ck r. Southern Counties Deposit Bank, 1889, 42 Ch. D. 471). In this case, the Court appears to have paid little attention to the fact that the grantee of the first Bill of Sale had taken possession some three years before the date of the second Bill of Sale. It seems to follow from the reasoning of the Lords Justices that if the second Bill of Sale had been an absolute assignment, the title of the first grantee would have been defeated, notwith- standing the fact of i)ossession taken, and the title would not be secure unless the I'egistrntion were constantly renewed, at least during tlu; lifetime of the grantor. Willi the greatest respect, it is difficult to suppose that this view is Q 226 BILLS OF SALE ACT, 1878. vig-ht. The laiigna<;e of Section 3, ante, appeai-s to imply that in Sect. 10, order to be within the Act a Bill of Sale must be in some sense an Note (f). executory instrumeiit — a power icherehy possession may he taketi. It is submitted that if possession has been taken under an absolute title, the Bill of Sale is in this sense exercised and spent, and the grantee may either retain or disjiose of the goods without any reference to it. He is the owner in possession of the goods, not merely the holder of a " Bill of Sale " over.them. If ])ossession has been so taken before the second Bill of Sale comes into existence, there can be no question of priority, because there are not ' two Bills of Sale in existence at the same time. Strictly speaking there is not one. The power to take possession conferred by the first deed has been exercised and spent, and the deed thereby taken out of the mischief and the language of the Act. The second deed, though valid by estop]iel against the grantor, is otherwise a mere nullity. At the date of it the grantor had no title, and having neither possession nor apparent possession he could give no title to the grantee. Quite apart from Section 5 of the Act of 1882, the grantee has no legal or equitable " power whereby possession may be taken." In Tlioinas r. Searles (1891, 2 Q. B. 408) it seems to have been contended that the eifect of Section 5 of the Act of 1882 is to repeal entirely this provision as to priority, so that there could never be two Bills of Sale of the same chattels valid against any person except the grantor. The Court distinguished Tuck r. Souther)! Counties Deposit Bank, sujira, on the ground that there the first assignment was absolute, while in Thomas v. Searles the first Bill of Sale was one by way of security, on which the grantor had an equity of i-odemption (see note to Section 5 of the Act of 1882, post). Thomas v. Searles, however, was not strictly a case of priority, since both Bills of Sale were given to \]\f same grantee, the intention being that the first Bill of Sale was to be paid nil' out of the second advance. This provision as to priority appears to exclude the equitable doctriiu^ of notice laid down in Le Neve v. Le Neve (1747, Amb. 436 ; 2 W. & T., L. C, 6th ed., p. 26). See also Wyatf v. Barwell (1815, 19 Yes. 435), Lee v. Clutton (1S76, 46 L. J., Ch. 48), Eihvards r. Edirards (1876. 2 Ch. D. 291), and Greaves r. Tofield (1880, 14 Ch. D. 563). The Sub-section applies (mly to Bills of Sale. It has no ajfplication as between a Bill of Sale of fixtures or growing crops on the one hand, and an absolute conveyance or mortgage of land by which fixtures or growing crops pass on the other. As regards trade machinery, it would seem that the same principle would hold good, unless the conveyance of the land operated as a " mode of disposition " of trade machinery, such as would be a Bill of Sale if it dealt with personal chattels (see notes to Section 5, ante). . It must be i-emembered, however, that a Bill of Sale in security for money is now void in respect of the personal chattels comjirised in it unless it is (Inly registered within seven days (see Section 8 of the Act of 1882, post). (?() A " transfer or assignment " of a registered Bill of Sale need not be registered ; nor does a renewal of registration become necessary by reason only of a transfer or assignment (see Section 11, post). The reason of the enactment, which is declaratory of tlie former law, inay be stated in the words of Field, .1. : " The object of the Act is that creditors may know whether their debtor lias parted with his goods. It is nothing to them whether the grantee has or Inis not assigned his interest under the Bill of Sale" (Karet v. Koslier iffnt Siipidii Association, 1877, 2 (}. B. I). 361 ; noted under Secti(m 11, post). As to the tra7isf(!r or assignnumt of a liill of Sale in security for iiioni'v, and the distinction between such a transfer or assignment and a new Bill of Sale Inj the grantor, see ante, pp. 64 to 66. TKANSFER OR ASSIGNMENT. 227 The distinction between a transfer and a new Rill of Sale by the grantee may also be important. In Chapman v. Knight (1880, Sect. 10, 5 C. P. D. 308) three documents were in question. On 27th June, Note {n). 1879, the oroods of Knight were sold by the Sheriff under a ^i, fa. to Oliver, his brother-in-law ; but the inventory and receipt was not registered as a Bill of Sale. On 1st July Oliver assigned the cliattels by deed to Higgs in trust for Mrs. Knight for her separate use, with power to sell on her direction. On 16th September Mrs. Knight, with the written authority of Higgs, sold the goods to Watson by an inventory and receipt, which was duly attested, and was afterwards registered. On the same day the goods, which had all along remained in the possession of Knight, were seized in execution under a judgment against him. Watson claimed them, and interpleader proceedings were taken. Two points were argued. One point (the second which was argued) was that there was no proper assignment to Watson within the Bills of Sale Act, because the name of Higgs, as the legal owner, ought to have appeared on the register. Both Grove and Lopes, JJ., held that the Bill of Sale was void on this ground (see ante,y). 101). The other point (which was first argued) may be stated in the words of Grove, J. : — " The execution debtor was in possession of the goods assigned by an unregistered Bill of Sale, which is admitted to be void as against the execution creditor. There is a subsequent settlement by the grantee that is admitted to be 'void because uni'egistered. Then there being a third document, which I will for the present suppose to have been executed by the trustee Higgs, it is said that, as this was registered, it takes effect so as to vest the goods in Watson, and therefore the execution creditor is defeated. That would, I think, be altogether contrary to the intent-ion of the Bills of Sale Act." But Lopes, J., differed on this point, not being prepared " to go the length of holding that a prior Bill of Sale, void against an execution creditor because not registered, can have the effect of rendering inoperative, as against the execiition creditor, a subsequent Bill of Sale given Ijy the holder of the unregistered Bill of Sale and properly registered." It is conceived that if the supposed assignment by Higgs to Watson were properly regarded as a Bill of Sale, the need for registration could only be material in the event of an execution against Higgs. On the other hand, the opinion of Grove, J., would be clearly right if the second and third documents operated merely as transfers of the original Bill of Sale in that character in which alone it came within the Act : viz., as a power to take possession. Watson's transfer would have been no better for being registered. Perhaps the true solution of this difficult case may lie in this : that by the assignment to Higgs, the goods became vested in a trustee whose ce.-'ftii que trust was thenceforth in possession in right of her separate estate. Thus, by the xmion in the same person of the absolute title to and the actual possession of the goods, the original Bill of Sale was exhausted and spent. But see Tuck v. Southern Counties Deposit Bank (1889, 42 Ch. D. 4-71 ; ante, p. 225). In Cookson v. Swire (1884-, 9 App. Ca. 653), Samuel Yaughan, in 1873, gave a Bill of Sale of his furniture to certain trustees to secure moneys owing by him to them. The deed, which contained a power of sale, was duly registered, but was never re-registered. In January, 1883, the mortgagees took possession, and agreed to sell the chattels absolutely to Charles Vaughan, the son of the mortgagor, who was the tenant of the house where he and his father lived. No money was paid, but the mort- gagees gave Charles a receipt for the purchase-money, £250; and on the same day he executed in their favour a Bill of Sale, wherebj- he assigned the chattels to them as security for the same sum. This Bill of Sale was duly registered, and the grantees afterwards claimed the goods under it as against execution creditors of Samuel Vaughan. The jury found that the transaction 228 RTLLS OF SALE ACT, ISTcS. between the mortgagees and Charles Yaughan was bond fide. Sect. 10, Cave, J., gave judgment for the execution creditors on the ground Xoto (ii). that the goods were in the apparent possession of Samuel Vaughan, and that the Bill of Sale of 1873 was void, " it being necessary for the claimants, in proving their title, to rely on that Bill." But the Court of Appeal and the House of Lords held that by the sale to Charles Vaughan the Bill of Sale of 1873 was "spent and at an end — j'uncfum officio — at a time when the Bills of Sale Act did not apply to it, and from that time the Bills of Sale Act never applied to that Bill of Sale any more"; so that the question of apparent possession at the time of the execution did not arise. It is important to notice that the sale by the mortgagees was a sale under the power of sale whereby the property was transferred free from any equity of redemption, and also that the mortgagees had taken possession and delivered the goods to the purchaser "in a manner which, as between those parties, was sufficient to transfer the possession." Both facts appear to be essential to the decision. If the mortgagees had merely assigned their mortgage title, the assignee would still have claimed as mortgagee under the Bill of Sale, even if ]iossession had been delivered to him. If they had sold under the power of sale withoiit taking or delivering possession, the purchaser would have been in no better position than if the Bill of Sale had originally been absolute. The Act is careful to bring absolute and conditional Bills of Sale equally within its scope. In B.r parte Turqnand, re Prrc/.er (1885, 14 Q,. B. D. 636), one Dys^'on, the lessee of a hotel, gave a Bill of Sale to Davis over the furniture, fittings, and effects in the hotel to secure the payment of £6,000 and interest. On 25th November, 1881, the Bill of Sale, which was duly registered, was transferi-ed by deed to Messrs. Parker, in consideration of £6,000, subject to a proviso for redemption. On 28th November. 1881, Messrs. Parker obtained an advance from their bankers, and deposited with them, inter alin, the Bill of Sale and transfer, with a memo- randum stating that they were to be held as security for advances and interest thereon. In October, 1882, Messrs. Parker purchased from Dyson his interest in the hotel and the equity of redemption in the goods ; possession was given to them, and they carried on the business until they became bankrupt. The trustees in bankruptcy alleged that the memorandum under which the bankers claimed was a Bill of Sale, and void for want of registration. But the Court of Appeal, affirming Cave, J., held that it was not a Bill of Sal(\ but a transfer of the Intercast under the registered Bill of Sale — an e(|nitable sub-mortgage. Lord Selborne, L. C, observed : " If on the 28th November, 1881, Messrs. Parker had actually acquired from Dyson an absolute title to the goods of which tliey were then in (jossession, the registered Bill of Sale would have been entirely exhausted, and the title to the goods would no longer have been made under it. I (|uite agree that, if those goods had been made a security to the bankers, there ought to have been a registration of the docniment by which that was done. But, on the 28th November, 1881, the registered Bill of Sale was not exhausted. The right of Messrs. Parker was merely to hold by way of security Dyson's goods and chattels under a registertMl Bill of Sal(> from hitn, and the Statute ex))i-essly says that a transfer or assignment of such a registered Bill of Sale — that is, when it is still an operative instrument governing the title - need not be registered. The Statute makes no distinction between a Bill of Sale by way of security, upon whicli an (Ujuity of redemption is reserved, and an Absolute Bill of Sak- -between ail (•(jiiitable transfer and a legal one. This transaction of the 28th November, 1881, wliich gave the title to the bankers, was nut n dcah'ng wit h I lie specilic goods at all; it was merely an equitabl(» assigninrnl m- t lanslcr nl' I he existing security on those goods to \\'liich the (itlr was cunstitnl ril iiy flic (iriginai registered Hill of Sale." It. lias br-en said, on the anlh(ii-il\' nl' /•,' r f^m-lr I'li riiini ml , .•fective it cannot b(^ extended"; and the Court of Appeal appear to have lu'ld that the power to extend the time for registration on terms applies, not oji1y in the case of an omission to register, but also in the case of the omission from the affidavit of the name, ix'sidence, or occupation of an attesting witness (dretr r. diDiiuiingx^ aiijn'fi). H(>fore this enjictnuuit two experiments were I ricd tnr I he |iiii|)(isr nl' curing a defective affitlavit. VVIu>re the grantee of :i liill (it Sale, finding t he aihihivit RECTIFICATION OF REGISTER. 283 l)ail, tik'd a fresh copy of the Bill of Sale and another attidavit. Wightnian, J., refused an application that a memorandum inifiht be Sect. 14, atldcd to the registration of the second copy, showing that tlie two Note (h). registrations were in i-espect of the same Bill of Sale, but permitted the first copv to be taken off the tile. This, however, was done before the time for registration had expired (Re Wririhf, 1856, 27 L. T., O. S. 192). The Irish Court of Queen's Bench refused to obliterate their records by allowing a Bill of Sale and affidavit to be taken off the file for rectification of an omission in the affidavit ; they held that the proper course was to file a new Bill of Sale and affidavit, with an indorsement referring to the first Bill of Sale, stating that each Bill of Sale was made for the same purpose, and related to the same transaction, but that, by reason of an irregularity in the affidavit of the first Bill of Sale, it had become necessary to file the second Bill of Sale and affidavit (In re O'Brien, 1860, 10 Ir. C. L. Rep. App. 33). It is still open to the parties to execute and register a new Bill of Sale in case of doubt as to the sufficiency of the affidavit filed with the first Bill (see Cooper v. Zefferf, 1883, 32 W. R. 402 ; ante, p. 197). (c) " The omission or mis-statement of the name, residence, or occupation of any person " may be rectified by the " insertion in the regis^ter of the true name, residence, or occui)ation." In the course of interpleader proceedings between an execution creditor and the claimant under a Bill of Sale it was found that, in the affidavit filed on registration, the residence and occupation of one of the attesting witnesses had been inadvertently omitted. Field, J., made an order at chambers allowing the claimant to file a supplemental affidavit setting out the residence and occupation. On ajjpeal from this order the Court of Appeal, affirming the Divisional Court, held that the order was invalid. Mathew, J., observed : '" The Act no doubt intends that such an omission may be rectified, but unfortunately in Section 14 it expressly provides that the rectification shall be eifected by means of a Judge's order for the 'insertion in the register' of the 'true residence and occupation of the witness.' The ' register ' is defined in the 12th Section. It is a book which the registrar is to keep, and in which he is to make an entry of certain particulars relating to each Bill of Sale in a prescribed form. The form in the Schedule to the Act does not contain a space for the addresses and occupations of the attesting witnesses. The language of Section 14 is, however, clear, and the order, not being an order for the ' insertion in the register ' of the omitted particulars, is not in conformity with the Act." Bowen, L. J., stated, as the ground of this decision, tliat tlie Section "only provides for a rectification uf the register," as defined in Section 12, and tliat the order did not provide for a rectification of tlie register (Creir v. Ciniiininy.-<, 1888, 20 Q. B. I). 535; 21 Q. B. D. 420). The Section appears to enact that the " omi.ssio;i or mis->sfateineiit"m-Ay be rectified by inserting the true mime, residence, or occupation in the register. It is true that the register contains no space for the description of the attesting witnesses. But the intention seems to be that the particulars are to be written prominently across the page, so that anyone searching the register shall liave notice of the rectification before referring to the cojn' Bill of Sale or affidavit. (d) The power to extend the time for registration or renewal does not apply in the case of old Bills of Sale, where the time for registration or renewal had exjiired bef(U-e the commencement of the Act (Aal-eir v. Letcis, 1883, 10 Q. B. D. 477 ; Er parte Official Receiver, re Emery, 1888, 21 Q. B. D. 405 ; see Section 23, iyo>tt). In each of these cases an order for extension of time had been made, and the Bill of Sale re-registered. Nevertheless, as against a subsequent execution creditor or trustee in bankrujjtcy, it was held that the registration was void and the Bill of Sale was void, the chattels remaining in the possession or apparent possession of the granldi-. 234 BILLS OF SALE ACT, 1878. It lias been decided tliat the time for i-egistratioii cannot be Sect. l4, extended under tlie Section, so as to defeat the vested title of Note ((/). an execution creditor who has seized the goods {Crew v. Cumiiiiiigs, 1888, 21 Q. B. D. 420). So, where by inadvertence a Bill of Sale is not re-registered, and the grantor becomes bankrupt before the mistake is discovered, the time for re-registration cannot be extended so as to defeat the vested right of the trustee in bankruptcy {E.v parte Fiirhcr, re PacsoH.s, 1893, 2 Q. B. 122). '" The matter," said Bowen, L. J., " may be looked at in two ways. Either it may be considered that the true construction of the Act is that there is no jurisdiction to extend the time in such a case, or looking at the matter from a slightly different point of view, it may be said that the discretion ought not to be exercised in order to defeat a title already vested " {Creic r. Cuiumings, supra). These decisions appear to overrule an Irish case where an ex parte application to extend the time for registration was made after the grantors had executed a deed vesting all their property in trustees for the benefit of their creditors, on which act of bankruptcy they were afterwards adjudicated bankrupt. The e,v parte application was granted, and the Bill of Sale was accordingly registered. The Judge in Bankruptcy refused to declare it void against the assignees in bankruptcy, and held that the order exteiiding the time could only be questioned in the Court in which it was made. The learned Judge also expressed the opinion that there was full jurisdiction to make the order under the circumstances as they existed at its date, and that the only ground for setting it aside woiild be the suppression from the Court of the creditors' deed and the consequent act of bankruptcy (In re P(irke, 1884, 13 L. R. Ir. 85). The decisions also overrule the case of In re Dobbin's Settlement (1887, 56 L. J., Q. B. 295), where Huddleston, B., and A. L. Smith, J., held that a Judge has power to grant relief under the Section after the execution creditor or trustee in bankruptcy has been in. Entry of 15. Subject to and in accoi'dance witli any rules to be tiout '^'^' made tindei^ and for tlie purposes of tliis Act (a), the registrar may order a memorandum of satisfaction to be written upon any registered copy of a Bill of Sale, upon the prescribed evidence being given that the debt (if any) for which such Bill of Sale was made or given has been satisfied or discharged (/>). ((') The Rules ap])licable to entry of satisfaction are l?ules 2() and 27 of ()rred copy of a Hill of Sale, on a consent to the satisfaction, signed by the ])ei-son entitled to the benefit of tlic Rill of Sale, and \ iM-ilicd by allidavil , being produccMJ to the registrar, ;ind lilcd in the Ccnlral Otlicc." See Form in A])pendix, j>ost. 27. '■ \Vli('i'i' the consent in the last prcciMling Knic nu'iilioncd cannot be obtained, llic registrar may, on ap[>h'cation by sninnions, and on hearing the person entitlcfl to the benefit of the Rill of Sale, or on athdavit of service of the summons on tliat person, and in either case on pioof to the satisfaction of the registrai' that the del)t (if any) foi- which ih.c Hill (if Sale was niad(> has been satisfied or discharf>fe(i, order a memo)"inx^^.j^(^^ yf ^^^y registered Bill of Sale, and affidavit of execution filed therewith, or copy thereof, and of any affidavit filed therewith, if any, or registered affidavit of renewal, upon paying for the same at the like rate as for office copies of judgments of the High Court of Justice (a), and any copy of a registered Bill of Sale and affidavit, purporting to be an office copy thereof, shall, in all Coui-ts and before all arbitrators or other persons, be admitted as prima facie evidence thereof, and of the fact and date of registration as shown thereon (h). Amj person shall he entitled at all reasonable times to search the register and every registered Bill of Sale, upon payment of One Shilling for every copy of a Bill of Sale inspected (c); such payment shall be nuide by a judicatui-e stamp. ((() This Section was altered at a late stage in passing through Parliament. The liinguage is clumsy and inaccui'ate. Perhaps the words " if any, or" in the fourth line may be a clerical error, or a misprint, for the words, " or of any." Tiic! fee for oHice copies is sixpence per folio. By R. S. C, 1883, Order l.xi., Halo 28 : "No affidavit or record of the Court shall be taken out of the Central Office without the order of a Judge or master, and no fiiihpiriui for the production of any such document siiall be issued." (/') .A.s to the admissibility of office i'o|)ies in evidence, see also II. S. C, 1883, ()r(hr xwvii., llule 1- ; "Otlici; copies of all wills, records, pleadings, and documents liird in the High Court of Justice shall be admissible in evidence in all causes and matters, and between all persons or parties, to the same extent as the original would be admissible." By Order Ixi., llule 7 : "All copies, certificates, and ol licr docuincnts appearing to be sealed with a seal of the Central Office shall be presumed to be office copies, or certificates or other clocmnents issued from the Central Office, and if duly stam])ed may be recei\i'd in evidence, and no signature or other I'orinality, exce])t the sealing with ;i srnl ol' tiio Centi'al Office, shall be iH'i|iiin'(l I'oi- tlie authentication of any such copy, cei'tificvite, or other (locumeut ." Kven before; this eiuictment it was held that a certilied or oltice copy of the affidavit was admissible in evidence, the afli therefore disallowecl {(Irindell r. Brendan, l«r,9, 2H L. J., C. P. 333). Sect. 16, But the production hy the claimant of the Bill of Sale itself and Nott- (/<). the following certificate bearing the seal of the Queen's Bench .Judgment Office — " .ToJinson. and Miinon. A document purporting to be a copy Hill of Sale, and dated the 8th day of April, 187o, endorsed w^ith the above names, was registered at the Judgment Office of the Court of Queen's Bench on the loth day of April. 1875" -was held to be no evidence that an affidavit satisfying all the requirements of the Statute had been filed with the Bill of Sale {Ma^on v. Wood, 1875, 1 C. P. D. 63 ; distinguishing Waddington, v. Roberts, 18(}S, L. R., 3 Q. B. 579). Where a claimant proved the execution of the Bill of Sal(>, and produced a certificate under the seal of the Court that "an affidavit and copy Bill of Sale, indorsed with the names of the grantor and the claimant, were on the 26th day of May, 1876, registered at the Judgment Office of the (Queen's Bench Division," it was hchl that he was bound to produce also authenticated or office coj)ies of the affidavit and copy Bill of Sale certified to liavo been filed so as to ])r()ve compliance with the conditions of tlie Act {Emniott r. Marchant, 1878, Q. B. D. 555; .■ct {Brmrn v. London and County Advance Co., 1889, 5 T. L. R. 199). (6) Before this enactment a false statement in an affiilavit under 'i'lie Hills of Sale Act, 1854, did not constitute jici-jiiry, as it was nor sworn in a judicial proceeding; but upon an indictnient for perjury, rlie prison<'i- might be found guilty of taking a false oath, and be |iunisliiMl Utv tlint misdemeanour {J'c^.-<, 1869, L. R., 1 C. C. R. 212). Fees. 18. '^riici-c shall he ])aiil and i-crcixcil in ('(iinmoii Ijaw stamps tlic lollowiiiLi' fees ((l lOs. 41. On filing a fiat of satisfaction .. ... . .. ijs. These fees are to be paid bv means of impressed stamps (Order as to Stamps, 4th July, 1884). The stamp duties payable on Bills of Sale are regulated by The Stamp Act, 1891 (see Alpe's "'Law of Stamp Duties," 4th ed., 1895). An Absolute Bill of Sale, given on a sale of goods, is liable to an ml valorem duty as a " Conveyance or Transfer on Sale." An Absolute Bill of Sale, other than a document accompanying a sale, is chargeable with a duty of lOs. either as a " CcmveyancL* or Transfer on any occasion except Sale or Mortgage," or as a " Declaration of Trust." A Bill of Sale in security for mcmey is to be stamped with an ad valorem duty as a " Mortgage." Section 88 of The Stamp Act, 1891, makes provision for the stamping of securities for future advances. It was formerly common for Bills of Sale to be given to secure future advances. The order as to fees, supra, apparently assumes that this may still be done. But no method has yet been devised of reconciling this provision with the statutory form (see Cook v. Taylor, 1887, 3 T. L. R. 800; and notes to statutory form, post). When a mortgage to secure future advances is stamped with an (id valorem stamp up to a certain amount, the Commissioners of Inland Revenue may stamp the deed, even after its execution, for the proper amouiit for which it is sought to render the security available {Fitzgerald'^ Tru!'tee.-< v. Mellersh, 1892, W. X. 4; and see Secticms 15'and 88 of The Stamp Act, 1891). By Section 41 of The Stamp Act, 1891 (ante, p. 213), a Bill of Sale is not to be registered unless the original, duly stamped, is produced to the proper officer. But this Section does not invalidate the registration, otherwise regular, of a Bill of Sale not duly stamped; the Bill of Sale is, nevertheless, admissible in evidence on payment of the duty and penalty {Bellamy v. Suill. 18()3, 32 L. J., Q. B. .366). As to the stamping of instruments after execution, and the relative penalties, see Section 15 of The Stamp Act, 1891 . Section 15 of The Finance Act, 1895 (58 Vict. c. 16), abolishes the limit of time within which i)enalties may be mitigated or remitted. The grantee of a Bill of Sale which is alleged to be fraudulent cannot, in order to prove bona fules, give in evidence a former Bill of Sale of the same goods which has been cancelled, imless the old Bill of Sale is duly stamped CWilliamn V. Gerry, 1842, 10 M. & W. 296; see Bramwell, B., in Ramsden v. Lnpton. 1873, L. R., 9 Q. B. 17). But if an unstamped document is tendered, not as evidence of a binding agreement, but for a collateral purpose, or for the purpose of cutting down the agreement, it may be admitted {Coppock v. Bower, 1838, 4 JI. & W. 361). Thus a Bill of Sale or deed of assignment for the benefit of creditors, though unstamped, is admissible in evidence to prove an act of bankruptcy {Ponsford v. Walton, 1868, L. R., 3 C. P. 167). 240 BILLS OF SALE ACT, 1878. A mere authority to act under a particular Bill of Sale does not Sect. 18, require to be stamped as a letter or power of attorney (Barl-er r. Dale, Note («). 1858, 1 F. & F. 271). Formerly any separate schedule or inventory referred to in, and intended to be used or given in evidence as part of, any instrument chargeable with duty was also liable to stamp duty (see 55 Geo. III. c. 18-i ; 33 & 34 Vict. c. 97). But where a Bill of Sale assigned specified chattels and siich chattels as should be substituted for them, provided their description should be endorsed on the Bill of Sale, it was held that indorsements describing- substituted chattels, being merely for the purjjose of identification, did not recinire an additional stam]i {Barl-rr r. Aston, 1858, 1 F. A- F. 192). roiieetimi 19. Section twenty-six of The Supreme Coui't of Judi- offees cature Act, IS?-'), and any enactments for the time bcino- under . ' . •' . n • ^ .S8&39Vict. in force amending' or substituted for that Section, shall e. //,s. ->. apply to fees under this Act, and an order under that Section may, if iietMJ l)e, be made in relation to such fees aecordino'ly (a). ((() The iiicori)orated Section empowers the Lord Chancellor, with the advice and consent of the Judges of the Supreme Court, or any three of them, and with the conciUTence of the Treasury, to fix fees and percentages, and from time to time to increase, reduce, or abolish fees and ])ercentages, and appoint new fees and percentages. Any order made in jiursuance of the Section is binding oti all the Courts, Offices, and officers to wliich it refers as if it had been enacted by Parliament. For the existing order as to fees see note to Section IS, (iiifp. Onifrand [20. Chattels comprised in a Bill of Sale which has ( iNjiDMuii. |)p^,jj ^^^^^ contiimes to be duly X'eg'istercd midci' this Act (a) shall not be deemed to be in the possession, order, or disposition of the g-rantor of the Bill of Sale (h) within '(.",71, " the meauing' of The Bankruptcy Act, 1869 (r).] {(i) Tliis Section is repealed by Section 15 of the Act of 1882; but by Section 3 of that Act the rejjcal is limitcnl to Bills of Sale given after 1st November, 1882, by way of security fV)r the payment of money. As to the effect of the repc^al on such Bills of Sale se(^ not(> to Section 15 of the Act of 1882, po^'t. This Section remains in force with respect (1) to Bills of Sale given other- wise than in security for the payment of mone}', even after 1st Novembei-, 1882 (S'/ri/f r. Panne'U, 1883, 24 Ch. D. 210) ; and (2) to Bills of Sale by way of secur'ity for the payment of money given after 1st January, 1879, and duly registered Ix^foi'c 1st Xoscmlx'i', i8S2, "so long as the registration is not avoided bv iion-i-encw;! I or ol licrwise "' (i'..v parie l:iir(l. re Chappie, 1883, 23 Ch. I). 409). It has been decided that if the grantoi (if a Bill of Sale within this Act becomes bankru))t within the period f)f scnimi days allowed ft)r registration (he oriler and (h'sp(i>il ion clansc (Iocs nut ;i p|il\' I ci I lie I'liat I els cinnpriscd in liic Hill of Sale (/•;- j.nrlr luihri,.ir llr,rrr. ISS2,'2I Cli. 1). STl). (h) K(ii-nici-ly till' iv'jisi rat ion ijf a I'.ill nf S;ilr did not lake l he cliat Ids (lUl (if till- order nnd dis|iosilion of tlio gr;inlor. Tin' |ii-iiici|i;il ;i iil liofil ii's in sn|iport TIME FOR REGISTRATION. 241 of tills ])r()poh;itii)ii arc ciiuiin'rated mifk'r Sccrioii I • j of the Act of 1882, jiiist. Presumably this is still the law as to Bills of Sale ic<=cistere(l Sect. 20, under the Acts of 1854 and 18G6, and re-registered under this Act. Note (h). The chief jioints of distinction between " apparent possession " and '■ reputed ownership " are the following : — 1. Under the reputed ownership clause it is necessary that the true owner should consent to the j)ossession, order, and disposition of the grantor. A demand of the goods by the grantee, or au attempt to obtain possession, excludes the reputed ownership of the grantor. In the case of apparent possession his consent is immaterial. An actual and not a merely attempted possession on his l)art is necessary (see Aiicona v. Rogers, 1876, 1 Ex. D. 28.'5 ; Ev pnrfe Fletcher, re Henley, 1877. 5 Cl>. D. 809). 2. Reputed ownership does not apply to fixtures or trade machinery comprised in a mortgage of land or buildings. 3. Reputed ownershij) does not ai)iily when the goods come into the possession of the bankrupt after the commencement of the bankruptcy, whereas the words in Section 8 of The Bills of Sale Act, 1878, are " at or after the time of filing the i)etition for l)ankruptcy " {cf. " Benjamin on Sales," :ird ed., pp. 409. 470). (c) By Section 149 (2) of The Bankruptcy Act, 1883, this must be construed and have effect as if reference were made to the corresponding proAnsion of the Act of 1883 — Secti(m 44, Sub-section 2 (iii.) — which is printed anic, p. 127. 21. Rules for the put-poses of this Act may be made Rules, and altered from time to time by the like persons and in the like manner in which rules and regulations may be 36&37Vict. made under and for the iDurno.ses of The Supreme Court c. 66. 38 & 39 Vict uf Judicature Acts, 1873 and 1875 (a). c.n. (o) The power of making Rules is now vested in tlie Rule Committee, as constituted under Section 19 of The .ludicature Act. 1881, and Section 4 of The Judicature Act. 1894. A.s to the jiubiicatioii of Statutory Rules see The Rules Publication Act, 1893. The existing Rules are jirinted under the relative Sections. 22. Wlit'ii the tiiiie tnr reuistei'iiio- a Bill of Sale expires Time for on a Sunday, or other day on which the registrar's office is tf^j^*^**' closed, the registration shall be valid if made on the next following day on which the office is open (a). (a) Comijare the more general provisions of R. S. C, 1883, Order Ixiv., Rule 3 : '■ Where the time for doing any act or taking any proceeding expires on a Sunday, or other day on which the Oflfices are closed, and by reason thereof such act or proceeding cannot be done or taken on that day, such act or proceeding shall, so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day im which the Offices shall next be open." The days on which the Offices are to be closed are regulated by Order Ixiii.. Hule 6 : ■'■ The several Offices of the Supreme Court shall be open on everv dav of the year, except Sundays. Good Friday, Easter Eve, Monday and Tuesday in Easter AVeek, Whit Monday, Christmas Day, and the next following working day, and all days a])pointed by ])ro('lamation to be observed as days of general fast, humiliation, or thanksgiving." The time for registering a Bill of Sale is defined In- Section 8, ante, as 242 BILLS OB' SALE ACT, 1878. "within seven days after the makinu; or giving thereof"; and by Sect. 22, Section 10, ante, as " within seven clear days after the making or giving Note (((). of such Bill of Sale." The seven days are to be reckoned exclusively of the day of execution {Williams v. Burgess, 1840, 12 A. & E. 635; but see note (c) to Section 8 of the Act of 1882, post. Repeal of 23. From and after the commencement of this Act, The Bills 17 & is Vict, of Sale Act, 1854, and The Bills of Sale Act, 1866, shall be 29&'sov t ''^P^<^^^^ ■ Provided that (a) (except as is herein expressly c. 9G. ' mentioned with respect to construction (6) and with respect to I'enewal of registration (c)) nothing in this Act shall affect any Bill of Sale executed before the comniencement of this Act, and as regards Bills of Sale so executed the Acts hereby repealed shall continue in force (d). Any renewal after the coniniencenient of this Act of tlie registration of a Bill of Sale executed before the commence- ment of this Act, and registered under the Acts hereby repealed, shall be made under this Act in the same manner as the renewal of a registration made under this Act (c). (a) The words in italics are repealed by The Statute Law Revision Act, 1894 (57 & 58 Vict. c. 56). The Repealed Statutes are printed for reference, ante, pp. 137 to 144. (h) The rule laid down by Section 7, ante, for construing the expression " separately assigned or charged " is expressly made to apply to Bills of Sale executed before the commencement of this Act (see note (c) to that Section, ante, p. 186). (c) As to renewal of registration see Section 11, ante, p. 229. That Section does not authorise the renewal of registration of old Bills of Sale, the registration of which had become void for want of renewal before the commencement of this Act ; nor can the time for renewal of registration be extended under Section 14, aiite, so as to enable such Bills of Sale to be validly re-registered {Ashew V. Leicis, 1883, 10 Q. B. D. 477 ; Ex parte Official Receiver, re Eiiicrij, 1888, 21 Q. B. D. 405). (d) Bills of Sale executed before the passing of the Act of 1854 did not require to be registered at all. A transfer or assignment after the Act of a Bill of Sale dated before the Act did not need to be registered in order to make it valid as against the trustee in bankruptcy of the grantor (Ex parte Sha-w, re Shaw, 1877, 46 L. J., Bank. 114). Bills of Sale executed after the passing of the Act of 1854, but before the commencement of this Act, are not affected by the Amendment Act of 1882, •so as to b(! avoided as between grantor and grantee for want of registration (Coulison V. Sivirc, 1884, 9 App. Ca. 653 ; sec note (cl) to Section 3 of the Act of 1882, jwsf). Bills of Sale registered under the Act of 1854, and re-registered under this Act, are not protected by Section 20, ante, from the application of the doctrine of reputed f>wi]ersliip (see ante, p. 241). Extent of 24. This Act shall not extend to Scotland (a) or to ^''^- hvlaiid (h). (a) According to flie law of ScnthnHJ iin security or ciuirge cini hi- created over movable i)ro])erly wiljidiit delivery of ])<)ssePsioii. "Hut, if a domiciled EXTENT OF ACT. 243 Scotchman resident in London gave a duly registered Bill of Sale of the furniture of his house, that would be a complete and effectual Sect. 24, transfer of the property without its being delivered to the creditor. Note (a). notwithstanding that such a disposition of furniture in Scotland would have been ineffectual without delivery " (jxr North, J., //; re Queensland Mercantile ^- Agency Co., 1891, 1 Ch. 536). As to an English Bill of Sale binding personal property of the grantor situate in Scotland, even without registration^, see Coofe r. . fecks (1872, L. E., 13 Eq. 597; rivte, p. 163). (b) The Irish Statute corresponding to the present Act is The Bills of Sale (Ireland) Act, 1879 (42 & 43 Yict. c. 50). As to an English Bill of Sale com- prising chattels of the grantor temporarily situate in Ireland see Brooks v Harrison (1880, 6 L. R. Ir. 85, 332 ; aiite, p. 163). 244 BILLS OF SALE ACT, 187S. iSCHEDULES, SCHEDULE A. I [A. jB.] of do swear tliat a Bill of Sale, bearing- date the day of 18 {^inserf the Date of the Bill], and made between liufcrt the Kaiiicx mid Descviptiorii^ of the Pin-tie!< in the Original Bill (f Sale], and which siiid Bill of Sale [or, and a copy of which said Bill of Sale. ii.< the co.sc inaij he] was registered on the day of 18 [_int.) An Act to Amend The Bills of Sale Act, 1878. !18th August, 1882. WHEKPJA8 it is expedient to amend The Bills of Sale 4i&42Vict. Act, 1878: BE it enacted by the Queen's most «■ ^i- Excellent Majest}', by and with the advice and consent of tlie Lords Spiritnal and Temporal, and Commons, in this ])resent Parliament assembled, and by the anthority of the same, as follows : 1. This Act may be cited for all purposes as The Bills short title. of Sale Act (1878) Amendment Act, 1882; and this Act and The Bills of Sale Act, 1878, may be cited too-ether as The Bills of Sale Acts, 1878 and 1882. 2. This Act shall come into operation on the first day Commence- of November, one thousand eight hundred and eighty-two, Act.""^ which date is hereinafter referred to as the commencement i of this Act. 3. The Bills of Sale Act, 1878, is hereinafter referred constmc- to as --the Principal Act," and this Act shall, so far as ^j^^J^yf^t is consistent with the tenor thereof, be construed as one c. 3i. with the Principal Act ; but unless the context otherwise requires (a) shall not apply to any Bill of Sale (h) duly registered before the commencement of this Act (c) so long- as the registration thereof is not avoided by non-renewal or otherwise (d). The expression '" Bill of Sale," and other expressions in this Act. have the same meaning as h\ the Principal Act (c). e.Kce])t as to Hills of Sale iir other docimicnts iiKMitioiu'd 246 BILLS OF SALE ACT, 1882. Sect. 3. in Section 4 of the Principal Act, wliicli may be given other- wise than by way of security for the payment of money (/), to which last-mentioned Bills of Sale and other documents this Act shall not apply (cj). (a) Section 13, posi, is expressly made to apply to Bills of Sale registered before the commencement of the Act ; and, as an inference from this, it has been held that the power to restrain removal or sale under Section 7, po>>t, also applies to such Bills of Sale {Ex- parte Cotton, 1883, 11 Q. B. D. 301). (h) That is, any Bill of Sale given by way of security for the payment of money, for this Act does not apply at all to Absolute Bills of Sale (see the closing- words of this Section and note (g), infra). (c) That is, 1st November, 1882 (see Section 2, loipra). From the language of the Section it might be inferred that Bills of Sale in security for money executed within seven day.s before, but registered after, this date are governed by the Amendment Act. But this has not been decided, and it is doubtful whether the Courts would be willing to give such a retrospective effect to the enactment of the statutory form {cf. Fry, .7., in Hickson v. Darlou; 1883, 23 Ch. D. 690). (d) It has not been decided what is the effect of these words restricting the application of the Amendment Act to Bills of Sale duly registered before the commencement of the Act. But two points seem to be clear : (1) They refer only to Bills of Sale executed after 1st January, 1879, and registered under the Act of 1878. The Act of 1882 does not touch Bills of Sale duly registered under the Act of 1854, of which the registration has been allowed to lapse. " Whatever the effect of these words may be as to Bills of Sale which are within the Principal Act, the registration of which may be void by non-renewal, they cannot possiJbly have the effect of extending the provisions of the Act of 1882 to old Bills of Sale which are neither by any clear and express words brought retrospectively within the Act of 1882, nor are within the Act of 1878" (Lord Selborne, L. C, in Cookson V. Swire, 1884, 9 App. Ca. 653). (2) Even as regards Bills of Sale duly registered under the Act of 1878, the effect of the words must be limited to Hills of Sale in security for the payment of money, for this Act does not apply at all to other Bills of Sale (see note (b), supra). It has been decided that Bills of Sale executed more than seven days before 1st November, 1882, and not registered, are not affected by the Amendment Act, but are still valid as between grantor and grantee (Hichson v. Darloiv, 1883, 23 Ch. D. 690) ; and it would seem that a defect in th(! original registration would give rise to the consequences prescribed by the Act of 1878, and not to the more stringent consequences of the Amendment Act. (e) This incorporates the following definitions etc. contained in the Act of 1878 :— 1'he defiiiitioMs oi' " Bill of Sale," " personal chattels," and " prescribed " in Section 4; the definitions of " trade machinery " and " factory or workshop " in Section 5 ; the rule of construction as to the term " separately assigned or charged" in Section 7; and the definitions of "the register" in Section 12, and " the registrar " in Section 13. A very important Cjuestion as to the meaiiing of the term " Bill of Sale " in this Act appears to have been somewhat overlooked. Does the term " Bill of Sale" in this Act include only documents which are within the definition of a Bill of Sale contained in Section 4 of the Act of 1878, or does it also include the two kinds of instruments which are to be "deemed to bo Bills of Siile " under Sections 5 and 6 of that Act ? It is to bo regretted that the (|uesti(>n of construction has not IxK'n considered in this goneriil form. As regards instruments within Section 5 it has in manj' cases been assumed CONSTRUCTION AND APPLICATION OF ACT. 247 that, if given as a security for money, they are within this Act foi- all purposes. As regards instruments within Section 6, which are Sect. 3, necessarily given as security for a debt, a similar assumption was Note (e). formerly "made. But in Green v. Marf'h (1892, 2 Q. B. 330) it was argued that, since such instruments could not be expressed in accordance with the statutory form, the consequence would be to repeal Section 6 altogether. In answer to this argument, the Court observed : " The answer is. the two Acts are to be construed together under Section 3 of the Act of 1882. This arrange- ment, being for the security of money, is within the mischief which both Acts seek to prevent, being a secret power of distress. By Section 9 of the Act of 1882, it would be void because it is not according to the scheduled form if it is a Bill of Sale. But it is only to be ' deemed to be a Bill of Sale ' of the chattels that might be distrained under it according to Section 6 of the Act of 1878. That must mean that it is not a Bill of Sale, but it is to be treated as one for the purpose of registration. If unregistered, it would be void as to the chattels comprised in it, under Section 8 of the Act of 1882. But not being actually a Bill of Sale, it need not be according to the scheduled form, because Section 9 does not apply to it." This reasoning is by no means satisfactory. Attornment clauses are certainly within the mischief of the Act of 1878, though express words were required to bring them within the operation of the Act. To be " deemed to be Bills of Sale " meant that they were to be within the penal consequences of non-registration imposed by Section 8 of that Act for the benefit of creditors of the mortgagor. But there is nothing whatever to show that they were supjaosed to be within the very different mischief of the Act of 1882. The Legislature may well have thought that a mortgagor of land can look after himself. Further, no distinction is drawn in this Act between Section 8 and the other Sections ; if an instrument comes within Section 8 there is nothing to exclude it from Section 9. Lastly, the question ought not to be limited to attornment clauses and instruments within Section 6, for the identical words " deemed to be a Bill of Sale " occur also in Section 5. The real question appears to be : Is Section 8 of the Act of 1878 repealed as regards instruments which are deemed to be Bills of Sale under Sections 5 and 6 of that Act? The language of Section 15, which repeals Sections 8 and 20, is unqualified ; but the repeal of Section 20 certainly does not touch these instruments, for Section 20 never applied to them. Does then the rejjeal of Section 8 affect them ? The answer to this question depends on the language of the present Section. The Section begins by enacting that "the expression 'Bill of Sale' has the same meaning as in the Principal Act." This appears to be a direct and literal reference to Section 4 of the Act of 1878 : " In this Act the following words and expressions shall have the meanings in this Section assigned to them respectively : (that is to say) the expression ' Bill of Sale ' shall include Bills of Sale, assignments, transfers, &c., &c." Unless an instrument comes within this definition, it is not a Bill of Sale within the Act of 1878, and, consequently, it is not included in the expression " Bill of Sale," as used in the Act of 1882. But modes of disposition of trade machinery under Section 5, and attornment clauses under Section 6, are not irithin this clef nif ion. Even if they were within the mischief of the Act of 1882, the language of this Section would therefore be insuificient to bring them within the Act. This is confirmed by the excluding words as to Bills of Sale given otherwise than by way of security for the payment of money, which are in terms limited to " Bills of Sale or other documents mentioned in Section 4 of the Principal Act." Instruments within Section 6 are necessarily given as security for money. But instruments within Section o may be either absolute or by way of security. If the earlier words brought within this Act an absolute conxeyance of a mill comprising trade 248 BILLS OF SALE ACT, 1882. uiachinery. the excluding words would not take it out of the Act, and Sect. 3, it would be void as to the trade machinery, even between grantor Note (f). and grantee. This result must be admitted to be very remote from the mischief at which the Act of 1882 is aimed. The short effect of this suggested construction is this: — The term "Bill of Sale" in this Act includes every document which is within Section 4 of the Act of 1878, unless it is given otherwise than by way of security for the payment of money, but not documents which are deemed to be Bills of Sale under Sections 5 and 6 of that Act. (/) The jihrase " in security for the payment of money" is wider than "in security for the repayment of money lent," though the form prescribed by the Schedule to the Act is modelled upon transactions of loan (see notes to Section 9, post). A clause in a building agreement giving power to the landowner to seize materials on the failure of the builder to perform his part of the agreement is not within this Act, the licence to take possession not being given in security for the payment of money {E.v parte Neiviff, re Garnul, 1881, 16 Ch. D. 522; ante, p. 27). Whether a Bill of Sale is given in security for the payment of money or not is a question of fact. If the parties have really intended an absolute sale, whether coupled or not with an agreement for hire, or with an agreement for repurchase, effect will be given to it, for, " as regards their legal incidents, there is all the difference in the world between a mortgage and a sale with aright of repurchase" (Lord Macnaghten, in Manchester Jr. Railiray Co. v. Xortli Central Waynn Co., 1888, 13 App. Ca. Soi). "The rule of law on this subject is one dictated bj^ common sense — that, priml facie, an absolut > conveyance, containing nothing to show that the relation of debtor and creditor is to exist between the parties, does not cease to be an actual conveyance and become a mortgage merely because the vendor stipulates that he shall have a right to repurchase " (Lord Cran worth, L.C., in Ahlerfion v. White, 1858, 2 De G. & .). 97). Hut if the parties really intended a security for a loan or debt, nc) matter in \\ii:it form they may have e.xpressed or shrouded their intention, thc^ document or documents will be treated as given by way of security for the pajnnent of money. As to ordinary mortgages the law has been thus stated : "An instrunu'nt which purports to be an absolute conveyance may be construed as a mortgage (1) if there; be evidence of tlie non-e.xecution or erasure, by mistake oi- fraud, of an intended defeasance or proviso for redemptiim, and the omission may l)e shown by jjarol evidence if, but not unless, it be alleged to have arisen by fiaud ; (2) if a separate defeasance or agreement for a right of redemption have been made by the mortgagee or his duly authorised agent, either in writing or verbally ; (3) if it appear from recitals in, or by inferences drawn from, the contents of other instruments, or from the payment of interest or other circumstances, that the conveyance was intended to be redeemable Tf a mortgage has been fraudulently made to appear as an absolute conveyance, it will not be corrected at the instance of those concerned in the fraud " (" Fisher on ^lortgages," 4th ed., p. 7). But under the Jiills of Sale Acts the law is more stringent ; and, apart from any question of fraud, the Court will inquire into all the circumstances of the transaction in order to discover the real intention of the parties. Parol evidence is admissible to prove the real natui'e of the transaction, even if the effect of such evidence by a party be to contradict his own deed (Mailell v. Thunias, 1891, 1 Q. B. 230; .s(>o Chapter 111. on " Real and Fictitious Transactions," ante, p. 30). (.'/) Thes(! words (Irliiic and liiiiii t he scojic of t he .'\ incii(liiiciil Act. .\s this Section qualifies the whole Act, the term " Bill of Sale" must be read throughout the Act as ecjuivalent to " Bill of Sale given by way of security for tlie ]iayiiient of money." There arc; dicta, to the contrary by eminent .Jiulges, which are probably d'i<' to the fact that in Section 9 these (|Malifyitig worils arc i'\|ir('ss('d. whereas in the other Sections they are omitted. SCHKDULK OF (11 ATPKLS : SPECIFIC DESCRIPTION. 249 The earliest decision on this point was given by Fry, J., who held that, in spite of the repealing Section 15, poi. Ca. 506; cf. Lopes, L. '.].. in Seed r. Bradletj. 1894. 1 g. B. 3l'9). (h) That is. Bill of Sale by way of security for the jjaymeiit of moiun- 250 BILLS OF SALE ACT, 1882. (see note (g) to Section 3, ante, p. 2-48). In the case of Absolute Sect. 4, Bills of Sale a schedule or inventory is not essential ; but it is Note (b) . ijencrally ndded for purposes of identification. As to the effect of a schedule or inventory annexed to or referred to in an Absolute Bill of Sale see ante, pp. 23 to 26. The cases there referred to seem to be apjalicable, as between grantor and grantee, to Bills of Sale under this Act where the schedule describes the goods but not "specifically." (c) A true copy of the schedule must be filed with the registrar (see Section 10 (2) of the Act of 1878, ante, p. 198). It has been held that the absence of a schedule when the Bill of Sale is executed avoids the Bill of Sale in toto under Section 9, _po.^f (Grifftu v. Union Deposit Banl; 1887, 3 T. L. E. 608). It has also been held that the annexed schedule foi-ms part of the deed, and that the Bill of Sale is duly executed where the signature and seal of the grantor are affixed at the foot of the schedule (Melville V. Stringer, 1883, 12 Q. B.D. 132). As to the sufficiency of the description in the inventory see note (/), infra. (d) The salvo refers to Section 6, potft ; but it is perhaps open to doubt whether Sub-section 2 of that Section was intended to have any reference to this Section (see notes to Section 6, po.^t). (e) The construction of this and the following clause is very obscure. The difficulty is caused Ijy the repetition of the words " specifically described " in both clauses. If these words were omitted from this clause, or were replaced by the word "comprised," or if they could be ignored by sufficiently emphasising the words " personal chattels," the ..clause would have an intelligible and even important meaning. It would then be read in connection with and as interpreting the effect of the operative words in the statutory form. The words " chattels and things," having been chosen by the Legislature as apt to pass " personal chattels," would be restrained to this sense, and could not be extended by the schedule. Hence, if property other than personal chattels (such as chattels real or book debts) were inserted along with personal chattels in the schedule to a Bill of Sale in the statutory form, the Bill of Sale would be wholly inoperative as to such property, even as between grantor and grantee. On the other hand, the mere insertion of such property in the schedule would not be a violation of the statutory form, and the deed would be valid as to the personal chattels. It has not been decided whether this is the law or not. It seems probable that the Legislature just missed expressly enacting in this clause that it should be law. But the clause does not seem to have been referred to in any of the following cases. In Ex parte Byrne, re Burdett (1888, 20 Q. B. D. 310), a Bill of Sale assigned '• the several chattels and things specifically described in the schedtilc." The schedule com])rised personal chattels and also a gas engine Arc, which was "excluded machinery" under Section 5 of the Act of 1878. The deed was admittedly void for defect of form (the report does not state in what respect), and the Court of Appeal held that, though void as to the personal chattels, it remained valid as to the gas engine. It was admitted that the gas engine was not a " personal chattel," and it seems to have been assumed that the operative words of the deed were nevertheless capable of carrying the property in it. The author regards the former admission as wrong (see ante, p. 178). But, if it were right, it seems worthy of consideration whether the property in the gas engine would i)ass by the operative words " chattels and tilings " — at least when used with the intention of following the statutory foi-m. The decision in K.r p(rrte Burne, however, only a])plies when the deed is not in tin- statutdiv form (cf. Cotton, L. J., In re Yairs, Batcheldor v. Ya.tes, 1888, 38 Ch. D. 112). Ill ThomuH V. KeUij (1888, 13 Ap]). Ca. 506) the o^ierative words of the Bill of Sale were enlarged so as to assign chattels whicli might be brought ui)on SCHEDULK OF CHATTELS: SPECIFIC DESCRIPTIOX. 251 the grantor's premises in substitution for, or renewal of, or in addition to the chattels enumerated in the Schedule. On this Sect. 4, ground the Bill of Sale was held to be void under Section 9. But Note (e) . it was not decided that the mere inclusion in the schedule of sucli after-acquired chattels would vitiate the deed. Lord Macnaghten observed : " Whether a Bill of Sale overladen in its schedule with a description of things for which the statutory form has no room, and for which the Act makes no pi'ovision, would or would not be held to be in accordance with the statutory form is a matter on which I express no opinion." In Cochrane v. Enhni'tle (1890, 25 t^. B. D. 116) the operative words of the deed were eularged bv adding the words "together with all the tenant-right valuation, goodwill, tillages, and interest of the mortgagor in and to the said farm lands and premises." Similar words occurred in the schedule after the enumeration of the personal chattels. In an action by the grantee against the Sheriff for conversion, the Court of Appeal, affirming Manisty, J., held that the Bill of Sale was void as to the personal chattels. Some expressions of the learned Judges are capable of meaning that the mere inclusion in the schedule of property other than personal chattels renders the deed void under Section 9. " It is clear to my mind," said Lord Esher, M. R., " that the only things which may be inserted in the schedule to the statutory form ai-e chattels personal." " The important words in the statutory form," said Lopes, L. J., " are ' chattels and things,' and, in my opinion, those words relate to ' personal chattels,' and nothing more. In the present case, the schedule comprises not only personal chattels, but also chattels real. There- fore, to my mind, it is perfectly clear that the deed is not in the statutory form, and it is equally clear that it has not the same legal effect, because it deals with things which are entirely outside the Bills of Sale Act." The head-note to this case states that " inasmuch as the schedule comprised chattels real as well as personal chattels the Bill of Sale was not in accordance with the statutory form, and was void." But it is submitted that the case did not decide the question left open by Lord Macnaghten in Thomas v. Kellu, supra ; the decision really turns on the enlargement of the operative words in the body of the deed. (/) This clause seems to mean that if any of the personal chattels mentioned in the schedule are not specifically described, the Bill of Sale is to be void as to such articles, except as against the grantor. The tendency of the Courts seems to be to read this clause along with the preceding, as merely limiting or qualifying it. The schedule must contain an "inventory" in the ordinary business sense of the term, "specifically describing" the personal chattels assigned. Chattels may be specifically described within the meaning of the Section, although the schedule does not specify the house or place where they are situated (^.i- parte Hill, re Lane, 1886, 17 Q. B. D. 74). The schedule to a Bill of Sale contained, inter alia, "household furnitvire and effects," without any list or inventory of the articles intended. It was held that the Bill of Sale was void against execution creditors of the grantor as to the household furniture and effects, because thev were not specifically described (Roberts v. Roberts, 1881, 13 Q. B. D. 794). A Bill of Sale by a picture dealer described in the schedule, infer alia, " four hundred and fifty oil paintings in gilt frames, three hundred oil paintings unframed, fifty water-colours in gilt frames, twenty water-colours unframed, and twenty gilt frames." The Bill of Sale was held void against an execution creditor so far as chattels claimed under this desci'iption were concerned. Lord Esher. M. R., observed that the chattels " are to be as specifically described as is usual in such inventories as are usually tnade for business purposes with regard to the particular subject matter. If the assignment relates to stock-in-trade, the 252 BILLS OF SALE ACT, 1882. inventory must be such, and the goods must be so specifically Sect. 4, described therein, as would be usual according to the ordinary Xote (/). mode of making an inventory of stock-in-trade, at the place where the stock-in-trade is situated I am not sure whether in such a case, if tried before a jury, the Judge might not ask the jury whether such a description was an 'inventory' in the business sense" (Witt r. Banner, 1887, 20 Q. B. D. 114). The schedule to a Bill of Sale included articles of household furniture, and, inter alia (in a particular room), "twelve oil paintings in gilt frames." This was held to be sufficiently specific. Fry, L. J., observing that greater exactness would be required in the case of pictures belonginti' to a ])icture-dcaler (Cnoper r. Huggint^, Kendrick daiuiant, 1889, 34 Sol. J. 96). Tlie schedule to a Bill of Sale comprised, inter (ilia, '■twenty-one mileli cows." This was held by the Court of Appeal (Cotton and Fry, L..1J. ; Lopes, L. J., dissenting) not to be a specific description. " The case," said Cotton, L. J., " might have been different if the schedule had said 'all the beasts on the farm, consisting of twenty-one milch cows,' because then there woitld have been something by means of which the cows might have been identified ; btit here the words are, simply, ' twenty-one milch cows,' and it does not appear that there were not on the farm at the time other milch cows besides ; and if so, who is to ascertain which milch cows were comprised in tlie Bill of Sale, or to sav how thev are to be identified?" {Carpenter v. Been, 1889. 23 Q. B. D. 566). The owner of a small farm gave a Bill of Sale, the schedule to which included " all my farming stock, comprising four horses, five cows," and so on. This was held to be a sufficiently specific description. The Sheriff seized in execution two mares, a horse, and a pony (Jones v. Roberts, Griffiths claimant, 1890, 34 Sol. J. 254). A beerhouse-keeper and carman gave a Bill of Sale, the schedule to which compi'ised ''roan horse 'Drummer,' brown mare and foal, three rade carts." In an action by the grantee against a purchaser from the grantor, the County Court Judge, without hearing evidence, held the descri})tion insufficient. But the Divisional Court (Cave and A. L. Smith, JJ.) sent the case back for further consideration. " Where this objection is taken," said Cave, J., " in order to succeed the objector must either show that from the nature of the description the goods cannot be identified, or he must bring evidence to show that in the particular case then under consideration the goods described are incapable of identification" (Hicldey r. Greenwood, 1890, 25 Q. B. D. 277). A Bill of Sale of a printer's machinery contained a schedule which described, infer alia, a " Premier plating machine, with four chases, two sets of rollers, and roller mould." The word ''plating'" was an error for " ]:)laten." In an action for conversion brought by the granti'(^ against the defendant, who had bought the machine at an auc^tion, the Court of Appeal held that this was a mere mis-spelling, whic-li could not mislead any person of ordinary sense and ordinary knowledge of a ])i'int('i-"s business (SHinnions r. Hughes, 1890, 34 Sol. J. 659). The schedule to a Hill of Sale began with ihc words: " The whole of the chattels at present at W. Vicarage, and consisting, infer alia, of the following." It then proceeded to specify the furniture and other chattels in each room of the house. One of the headings was as follows : — " Study : Eighteen hundred volumes of books as per catalogue, writing-talile nini chair, four book-cases, Brussels carpet, small table, fendcn- and fire-irons." Thei-e was a catalogue of the books in existence jjreviously to the Hill of Sale. There was no evidence to show that there was any difficulty in identifying the liooks without i-eferring to the catalogue. The (Jourt held, as against an excciit ion creclitor of the grantor, that the catalogue itself, iu)t being referred to in the Hill of Sale, need not be SCHEDULE OF CHATTELS: TRUE OWXEUSHIP. 253 registered ; aud that the words "as per catalugiie " were mere further description, and not restrictive of the former part of the description, Sect. 4, which siitHci(Mitlv identified the books assigned (Davidson v. Carlton Note ( /). Bank, 1892 [1893], 1 Q. B. 82). 5(a). Save as hereinafter mentioned (b), a Bill of em of Sale Sale (c) shall be void, except as against the grantor, in affect after- i-espect of anv personal chattels speciticallv described in the acciuired 1.1 If TiropGi'tv. schedule thereto of which the grantor was not the tnie owner at the time of the execution of the Bill of Sale (d). (a) Tlus Section, like Sections -i and 6, relates to the schedule (see aitle. p. 249). (b) The salvo refers to Section 6, Sub-section 2, pout, p. 255. But it appears open to doubt whether Sub-section 1 of that Section was intended to have any reference to tliis Section (see notes to Section 6, po.sf)- (c) That is, Bill of Sale bv way of security for the pavnient of money (see note (;v) to Section 3. a)ite, p. 248). (d) Even if the chattels are specifically described in the schedule, the Bill of Sale is to be void, except as against the grantor, in respect of any of such chattels of which the grantor was not the true owner when the Bill of Sale was executed (c/. Fry, L. J., in Kellij r. Kellond, 1888, 20 Q. B. D. 569). A Bill of Sale in security for money, which purports to assign after-acquired property in the body of the deed, is void in tofo under Section 9, jMtit {Thoma.< r. Kelly, 1888, 13 App. Ca. 506). But the grantor may lawfully covenant to replace chattels destroyed or worn out during the existence of tlie security (see notes to the statutory 'form ; Seed v. Bradley, 1894, 1 Q. B. 319). Articles substituted under such a covenant ai-e comprised in the security, but (except in the cases saved by Section 6) only as against the grantor (Sir J. Hannen, in Furher v. Cobh, 1887, 18 Q. B. D. 494). Such a covenant, however, will not be implied. Thus, a Bill of Sale assigned, inter alia, twentj^-one milch cows, and contained no covenant for substittition. The grantor afterwards sold several of the cows referx-ed to in the schedule, and bought other milch cows and also two heifers : only two or tliree of the milch cows seized under an execution had been on the farm at tlie date of the Bill of Sale. The Court of Appeal held that the Bill of Sale did not extend to any of the .«tock brought on to the farm, even though bought in substitution for anv of the cows originally included in the security (Ca/-jJP»(fcr c. Dec«, 1889, 23 Q.'B. D. 566). The marginal note appears to restrict the operation of the Section to after- acquired property of the grantor. But a marginal note is no part of an Act of Parliament (Jessel, M. R., in Sutton v. Sutton, 1882, 22 Cli. D. 511, correcting a dictum in In re Venour'.t Settled Estate, 1876, 2 Ch. D. 522; see also Attorney- General V. Great Eastern Railicaij Co., 1879, 11 Ch. U. 449, at p. 460). It appears to be certain that the principal object of the Legislature in enacting the Section was to put an end to the common pi-actice of binding after-acquired or substituted property. As to the different modes of doing so in Bills of Sale before the Act see ante, pp. 91 to 95. It has been held, however, that the scope of the Section is not limited to after-acquired property, but includes all cases in which the grantor was not the true owner of the chattels at the date of the Bill of Sale. " After-accjuired property," said Cotton, L. J., " may have been s])ecially in the minds of the Legislature wlien the Act was passed, but 1 am of ()])ini()n that it has used language Avhich includes other kinds of i)roperty."' Lnp.'s. L. .1., whn dissented, thought that the 254 BILLS OP SALE ACT, 1882. Section was meant to apply to at'tei--aec[uired property of the Sect. 5, grantor, and to that only, and that this view was confirmed by Note ((?). the terms of Sections 4 and 6 (Tuck r. Southern Counties Deposit Bank, 1889, 42 Gh. D. 471). The owner of certain liousehold furniture assigned it in 1885 by absolute deed of gift to the plaintiff, and in 1888 executed a Bill of Sale over it, as security for a loan, in favour of the defendants. The Court held that the grantor, having parted with all his intei'est in the chattels by the first deed, was not the true owner of the chattels at the date of the second, and, consequently, the Bill of Sale of 1888 was void under this Section, except as against the grantor {Tuclc V. 8oiithe7-n Counties Deposit Bank, supra). It would be otherwise if the prior deed were by way of security, for then the grantor would remain the true owner in respect of his equity of redemption (Thomas v. Searles, infra). One of two partners, with the assent of his co-partner, executed a Bill of Sale of partnership goods to secure a loan of money, which was used for the benefit of the two partners. The partners were afterwards adjudicated bankrupt. It was held that the grantor was the true owner to the extent of his share in the goods, and that the Bill of Sale was to that extent valid ; but that it was void under the Section in respect of the undivided moiety which belonged to his co-partner (Ex parte Barveft, re Tampliv, 1890, 62 L. T., 264). Apart from the Section, the grantee would have had a good title to the whole of the chattels (see ((nfe, p. 97). A person who has granted a Bill of Sale in security for money is still the true owner in respect of his equity of redemption, and may grant a second Bill of Sale over the same chattels, either to the same grantee or to a third person. The proprietress of a hotel executed a mortgage of the premises, including trade fixtures, to M.; subsequently she granted to H. a Bill of Sale over certain goods and chattels, including such trade fixtures. It was held that the Bill of Sale holder, having become possessed of the equity of redemption in the trade fixtures, was entitled to them as against an execution creditor ( Usher r. Martin, 1889, 24 Q. B. D. 272). In this case Section 5 does not seem to have been referred to ; the argument was that the Bill of Sale holder was trying to set up the./».s terfii of the mortgagee (sec Bichards r. Jenkins. 1887, 18 Q. B. D. 451). A Bill of Sale, dated in 1884, was not re-registered witliin five years, as required by the Act of 1878 ; some weeks after the expiration of the time for renewal a second Bill of Sale over the same goods was made between the same parties. It was held that the effect of non-renewal of registration was to avoid the first Bill of Sale even between the parties: that the grantor was therefore the true owner at the date of the second Bill of Sale; and that the grantee was entitled to the goods as against execution creditors (Fenton v. Blythe, 1890, 25 Q. B. D. 417). The Court (Lord Coleridge, C. J., and Wills, J.) seem to have thought that if the first Bill of Sale had been avoided onh' as regards third jiarties the grantor Avould not have been tlu^ true owner. A debtor who owed a sum of nicjucy partly secured by a Bill of Sale executed a second Bill of Sale of the same chattels in favour of the same grantee, to secure a fresh advance, on the understanding that out of the sum advanced he should pay off the existing debt. The money was actually paid to the grantor, and two days afterwards he paid to the grantee the sums due on the first Bill of Sale and other securities. The goods were afterwards seized in execution; and it was contended that the seizure was valid, because the first Bill of Sale was discharged, and the second Bill of Sale was void under the Section cxce])t as asrainst the grantor. But the ('ourt of Appeal held that at the date of the second Hill of Sale tlie grantor was the true owner in respcH't of his (Miuity of redemption, and tlicreforc the Bill of Sale hohUu- was entitled to tlie goods (Thomas r. Scarlcs, 1891, 2 Q. B. 408). Thr words "true owner" are satisfied by elMiei- legal or (M|uilabl(' o\\ iierslii]i SCHEDULE OF CHATTELS: GROWING CROPS. 255 (c/. Walrond v. (iolduunDU 1885, 16 Q. R. D. 121, ante, p. 102, where- this Section docs not seem to have been cited). Sect, o, A. made a settlement upon his marriage in 1887, assigning to Note (d). a trustee all the furniture then at his residence, together with all tliat should l)e acquired during coverture, upon trust for himself and his wife during their joint lives, and after the death of either to the survivor absolutely, with a proviso that if A. became bankrupt his wife might declare other trusts. In 1889 A. executed a Bill of Sale over certain furniture purchased after the marriage, and included in the settlement. He subsequently became bankrupt. On a motion by the trustee in bankruptcy to set aside the Bill of Sale on the ground that A. was not the true owner, Cave, J., held that A. was, to the extent of his interest under the settlement, the true owner of the goods. " He had the right to charge his interest arising out of his right of survivorship, of which interest he was the true owner, though it might never come into being" (Ev parte Pratt, re Feild, 1890, 63 L. T. 289). The goods of S., having been seized in execution, were sold by the Sheriff to Mrs. S., but the purchase money belonged to S., so that she was a trustee for him. She then, believing herself to be the owner, granted a Bill of Sale to secui-e a loan, which was applied on her husband's account. After the making of a i-eceiving order against S., the grantee seized the goods, and Mrs. S. executed a second Bill of Sale to T. to secitre a loan, which was applied in discharging the former Bill of Sale. S. was afterwards adjudicated bankrupt, and the trustee claimed the proceeds of the goods from T. Vaughan Williams, J., held that Mrs. S. was the true owner at the date of the first Bill of Sale, and had not ceased to be so by the bankruptcy of her husband ; and that, as the trustee had stood by and allowed the legal owner to deal with the chattels, and the second loan had been employed in paying off the first mortgage, the trustee was not entitled to claim the proceeds {Ex parte Williamit, re Sari, 1892, 2 Q. B. 591). It would appear, from the discitssions which preceded the passing of this Act, that the Section was intended also to strike at Bills of Sale given by traders and others over goods which had been bought but not paid for. The intention was to make a Bill of Sale void as to such goods in the interest of the unpaid vendor and the general creditors. This question does not seem to have been raised under the Act. But the words of the Section are not well chosen to carry out the intention, for if the property has passed under the contract of sale, the Ecrantor would seem to be the " true owner," whether the price has been paid or not. AVlicre stock-in-trade has been bought but not paid for, the granting of a Bill of Sale over it is not a disposition " in the ordinary way of trade " within the meaning of Sub-section 15 of Section 11 of The Debtors Act, 1869 (32 & 33 Vict. c. 62) : and if the trader is adjudged bankrupt on a petition presented within four months he may be guilty of a misdemeanour, unless the juiy is satisfied that he had no intent to defraud {Reg. r. Thiinia.<, 1870, 11 Cox C. C. 535). 6. Nothing- contained in the foregoing- Sections of this ^■\'^''P'^J2^^ Act (a) shall render a Bill of Sale void in respect of any of things. the following- things ; (that is to sa}-), (1) Any growing crops separately assigned or charged where such crops were actually growing at the time when the Bill of Sale was executed (h). (2) Any fixtures separately assigned or charged, and iinv plant or trade mjicliinory where such fixtures. 56 BILLS OF SALE ACT, 1882. Sect. 6. plant, or trade machinery are used in, attached to. ()i- brought u})on any land, farm, factory, workshop, sho]), house, warehouse, or other phice in substitution for any of tlie like fixtures, plant, or trade machinery specifically desciibed in the schedule to such Bill of Sale (c). (a) This Section engrafts an exception upon Sections 4 and 5, ante. The Privy Council, in considering three exactly similar Sections in the corresponding Trinidad ordinance (No. 15 of 1884), construed the Sub-sections distributively, treating Sub-section 1 of this Section as the saving referred to in (Section 4, and Sub-section 2 of this Section as the saving referred to in Section 5 (Tennant v. Hotcafson, 1888, 13 App. Ca. 489). Wliether this distributive construction would be adopted by an English Court, if the question arose for decision, is more than doubtful. Both in the House of Lords and in the Court of Appeal, language has been used which undoubtedly implies that Sub-section 2 is to be read as an exception to Section 4 (Lord Halsbury, L. C, in Thoinax r. Kelly. 1888, 13 App. Ca. 506; Seed v. Bradley, 1894, 1 Q. B. 319). In this state of the authorities it is impossible to express a contident opinion as to the scope and meaning of this Section. (h) For some notes on the general law as to growing crops see ante, pp. 78 to 80. Growing crops are personal chattels within the Acts when sepai-ately assigned or charged, but not when assigned together with any interest in the land on which they grow (see Section 4 of the Act of 1878, ante, pp. 150, 165). The term " separately assigned or charged "' is explained by Section 7 of that Act, ante, p. 184. The word "such" is ambiguous. Jt may mean "crops of the like nature or on the same land," or it may mean '" the particular crt)ps assigned or charged" by the Bill of Sale. The opinion of Lord Macnaghten that growing crops are not personal chattels within the Acts, unless they are actually growing when the Bill of Sale is executed, has already Ijeen criticised (see ante, p. 164). Lord Macnaghten regards this Sub-section as explaining in this sejise, ''with perhaps unnccessjiry caution," the detinition of " persoiud chattels " in the Act of 1878 ( TIkhiiu.-: V. Kelly, 1888, 13 App. Ca. 506). The Sub-section nuist first be considered as creating an exception to Section 4. The explanation of the Sub-section in this relation given by tlie Privy Council is as follows : " Growing crops cannot be described more specifically in a schedule than they icould he in the operative part of the in.'^tni- ment, and chattels not in existence cannot be specilically described at all. There is good reason for saving them out of that provision which requires specific description in a schedule, and saved they are accordingly " {Tennant r. Iloicatsim, .Hwpra). This explanation must bo read in connection with the words used in the operative part of the instrument before the Court : — viz., " The canes now gi-owing on the several estates now held with and known as the St. Augustiu Estate, in Trinidad, comprising al)Out 2,154 acres." The instrument matle ])rovisions relating to the proceeds of the crop then growing (i.e., in 1885) and ])rovisions of a like kind with resjjcct to the crop of 188(). It is difficult to apj)Iy this reasoning to Knglisii Hills of Sale. Where :i farmer gives a continuing security over his effects, croi)S are usually described in general terms l)y reference to tlii; land on which they grow. If this were in any sense a "specific description," growing crops might be described more sj)ecifically in a schedide : viz., by iMiumerating in detail the kinds and acreage of the particular crops; and croi)s not in existence would be capable of SCHEDULE OF CHATTELS: GROWING CROPS. 257 " specific description." On the other hand, if a detailed enumera- tion by kinds and acreage were necessary to a specific description, Sect. 6, there would be good reason for excepting from the provisions of Note (h). Section 4 crops not yet in existence, but not (unless in rare cases) crops actually gi-owing at the date of the Bill of Sale. But, further, it has been decided that Section 9 of this Act is not cut down by Sections 4 and 5 ; and the effect of the Act is that " the schedule to a Bill of Sale shall contain, and the body of the Bill of Sale shall not contain, the description of the personal chattel-'^ intended to be comprised therein " (per Lord Macnaghten, Thomas v. Kelly, 1888, 13 App. Ca. 506). The most likely suggestion as to the meaning of the Sub-section in connection with the statutory form, and considered as an exception to Section 4, seems to be as follows : — A Bill of Sale must assign "the several chattels and things specifically described in the- schedule." But if the Bill of Sale is intended to comprise growing crops, and future crops in substitution for them, a description of the crops in the schedule, by reference to the land, is to be sufficient. There is no obvious reason for enacting generally that a Bill of Sale charging existing crops merely, and not future crops, need not specifically describe them in the schedule ; but the words, nevertheless, appear to include this case also. We must next assume that this does not exhaust the meaning of the Sub- section, but that it is intended also to be an exception to Section 5. For this purpose it is necessary to suppose that the crojJS are "specifically described" in the schedule, but that the grantor is not the true owner of them at the date of the Bill of Sale. To understand the effect of Section 5 on Bills of Sale of crops, and the scope of this exception, it is necessary to advert to the distinction between the tenant of land and a stranger. At Common Law the tenant of land could effectuallj^ charge future crops, not nierely by a licence to seize where the property passed by the act of seizure, and not merely by a contract to assign where the propertj^ passed in Equity whenever the croy)s came into existence, but by words of present assignment. The tenant had such a "foundation of interest" in crops to be grown in future years of his tenancy that he could " grant " them presently, the propertv passing at Lfirc when the crops came into existence (Grantham r. Hauley, 16L5, Hob. 132; see Ltiun v. Thornton, 1845, 14 L. J., C. P. 161). Thus, future crojjs were held to pass by the words " tenant right and interest yet to come and unexpired" (Fetch r. Tittin, 1846, 15 M. & W. 110). This being so, it seems probable that the tenant is the " true owner" of future crops during his tenancy. A Bill of Sale comprising such crops could not now be construed to extend, even in Etiuit}', to future crops on a farm not occupied by the grantor at the time of executing the deed (see Carr v. Allatt, 1858. 27 L. J., Ex. 385). But beyond this, a Bill of Sale by the tenant of land comprising future crops seems not to be struck at by Section 5. This Sub-section, therefore, appears not to ajjply to such Bills of Sale. A stranger to the land is strictly within the Common Law rule that a man cannot grant that which he hath not. He cannot be the true owner of crops not yet in existence. A Bill of Sale made hy a stranger to the land and comprising future crops is therefore rendered void by Section 5 as regards the future crops, except as against the grantor. The following cases would seem to come within the saving of this Sub- section : — The plaintiff in ejectment, after verdict in his favour but before judgment, gave his attorney a Bill of Sale by way of mortgage for £100 on a crop of potatoes growing on the land. This was held to be valid as being an assignment by way of security only, though if it had been an absolute assignment it would have been void on the ground of chamfierty (Anderson v. Radcliffe, 1858, 28 L. J., Q. B. 32). This case might conceivably account in part for the provisions of the ■i'-^S BILLS OF SALE ACT, LSS2. Sub-section ; it mio-ht have beeu intended to adopt the decision, hut Sect. 6, to limit its application to crops actually growing. Of these the Xiite (/)). grantor would not be the true owner; and if specific description implies the enumeration of kinds and acreage, he might also be unable to desci-ibe them specifically. The Sub-section would also apply to cases where a trader is about to purchase, or an incoming tenant is about to take over from his predecessor, crops growing on a farm. The Legislature might have intended that he should be able to create a security over the crops, of which he is not yet the true owner, in favour of a person advancing money to enable him to complete the purchase or take possession. (c) For some notes on the general law of fixtures see ante, pp. 80 to 89. Fixtures are included in the term "personal chattels" when separately assigned or charged, but not when assigned together with a freehold or leasehold interest in any land or building to which they are aflJixed (see Section 4 of the Act of 1878, iinte, j3p. 150, 165). The term " separately assigned or charged " is expUiined by Section 7 of that Act, ante, p. 184. The term " plant " may include movable chattels. " ' Plant ' in its ordinary sense includes whatever apparatus is used by a business man for carrying on his business — not his stock-in-trade which he buys or makes for sale, but all goods and chattels, fixed or movable, live or dead, which he keeps for permanent emplovment in his business" (Lindlev. L. J., in Yniiiioiifh v. Fnnicc, 1887, 19 Q. B. D. 647). Ti-ade machinciy is defined and explained in Section 5 of the Act of 1S78, ante, p. 172. According to the view suggested in this book, tliis Section ap]3lics to a " Bill of Sale " comprising trade machinery, but not to a conveyance of land, whether absolute or by way of mortgage, which operates as a mode of disposition of trade machinery, and is consequently deemed to be a Bill of Sale within the Act of 1878 (see note (e) to Section 3, ante, p. 246). Lord Macnaghten regards this Sub-section as extending the definition of personal chattels in Section 4 of the Act of 1878, ante, p. 159. This is a con- sequence of the view that that definition excludes future or after-acquired chattels (see aiite, p. 164.) The Privy Council treat this Sub-section as an exception to Section 5 only : "The salvo" (i.e. in Section 5), said Lord Hobhouse, "is explained and satisfied by Sub-section 2 of Section 6, and is necessary, because the grantor cannot at the time of the sale be the true owner of fixtures to be afterwards substituted " (Tevnant v. Homitgon, 1888, 18 App. Ca. 489). If the Sub-section were held to bear reference to Section 4 it must mean that the substituted chattels need not be specifically described in the schedule, whether they arc^ capable of sj)ecitic descrijitioii or not. But Secticm 5 only applies to chattels which are specifically described in the schedule. Consequently, if the Sub-sectioji referred to Section 4, it would not refer to Section 5. Tlie true view seem to be that the Act "i-ecognises the descriptioii in Section (i as a sp(>cific description " (Lord Macnaghten in Tlionias v. Kelly, fniprn), and consecpiently that the Sub-section is not an exception to Section 4. Tli(> Sub-section protects from avoidance under Section 5, if not under Section 4, the grantee's title to chattels xi(b:< v. Kelly, 1888, 13 App. Ca. 506). (2) The grantor may insert in the Bill of Sale a covenant to replace articles injured, deteriorated, worn out, or destroyed. Such a covenant is a term for the maintenance of the security, and in general the grantee takes no title, except as against the grantor, in respect of articles substituted under such a covenant. But the grantee would liave a good equitable title to any articles within the saving of this Sub-section. Whether the former or the latter mode is adopted, the grantee has only an equitable title to sub- stituted chattels, for the Section, though protecting the assignment or covenant, gives it no greater validity than it would have apart from the Act (see ante, p. 9-t). In Seed'v. Bmdleij (1894, 1 Q. B. 319), Lopes and Kay, L. JJ.. adopted a mode of reasoning which goes beyond the foregoing exposition. (1) The Lords Jtistices assumed that the operative words of the statutory forrti may be enlarged by adding words to include chattels in substitution for or renewal of the chattels described in the schedule, so long as such words are confined to terms for the maintenance of the security, or to articles within the saving of this Sub-section. On this point see notes to the statutory form, pout. (2) The Lords Justices appear to have construed the Sub-section as enabling the grantor to dispose of fixtures, plant, or trade machinery comprised in the schedule on condition of substituting other chattels. ''The Sub-section," said Kay, L. J., "allows certain trade chattels which may be afterwards acquired to be included, not merely for the pui-pose of maintaining the security, but for the obvious reason that, itnless this could be done, a manufacturer who had given a Bill of Sale could not make any alteration or improvement in his plant, fixtiu-es, or machinery without lessening the security : that is, practically, without the consent of the mortgagee. In the interest of trade he is to be allowed to do this on the terms that the .security is to cover the substituted articles." If this means that the Sub-section enables the grantor to effect the substitution without the consent of the grantee, and without any express or imjilied power contained in the Bill of Sale, it is conceived that the construction is erroneous. If the Schedule contains words of substitution, the grantor would ]n-obal)ly be held to have an implied authority to substitute: and if the substitution is Tuade, the Sub-section ])rotects the title of the grantee from avoidance under Section 5. This seems to be the whole effect of the Sub-section. Apart from the Sub-section, and in the absence of words contemplating substitution, a Court of Equity would restrain the grantor from doing anything of the kind. If the construction of the Lords Justices were right, the grantee could only exclude the supposed power of substitution by a term for jnaintenance of the security which would necessarily contravene the provisions of this Sub-section, and would consequently avoid the Bill of Sale altogether. It is unfortunate that the construction put on the Section by the Privy Council in Teini'int r. Hourifiton, . forfeiture, it was his duty to inform t lie ])laintiff' that he should insist on the forfeiture unless the contract was conipk'ted on that day." It is probable that the definition of ek-fault given in M'ill ii'operty in the goods at tlie time of seizure. Before the Sheriff had sold, the grantor tiled a liquidation petition. Held, that the trustee in the liquidation was entitled to the goods, subject to the claim of the grantee (Ex parte Hailing, re Ifaydon, 1877, 7 Ch. D. 157). Where a Sheriff has seized goods comprised in a Bill of Sale on behalf of an execution creditor, but is ordered before sale to withdraw in favour of the grantee, who has been appointed receiver, the execution has not been completed within Section 45 of The Bankruptcy Act, 1883. and if the Bill of Sale is void the goods seized pass to the trustee in bankruptcy of the grantor (Mackay r. Merritt, 1886, 34 \V. R. 433). \Vher(>. under an iTiterpleader ord(>r, the grante(> lias ])aid money into Court tci ])re\eni a sale dI' tlic gnoils. and tlie urantor bct-onics bankrupt, the 268 BILLS OF SALE ACT, 18Si money will not be paid out to his trustee, even with the assent Sect. 7, of tlie grantee (Shiirkhiirfili r. Ditthoit, FUt claiinaiif, 1892, 8 Note (./). T. L. R. 710). In interpleader proceediniis between an execution creditor and the grantees of a Bill of Sale an order was made transferring the proceedings to a County Court, and the grantees paid a sum of monej' to the Sheriff under the order, " to abide the order of the Judge of the County Court." The execution creditor afterwards withdrew his claim. The grantees obtained judgment in the County Court, but the County Court Judge refused to make an order as to the money in the hands of the Sheriff. The Court of Appeal held that the Sheriff was justified in refusing to pay the money without such an order, and that an action for money had and received wovtld not lie against him (Diffcounf Banking Co. v. Lambarde, 1893, 2 Q. B. 329). {k) Proviiio as to restraining removal or sale. This proviso must be read with Section 13, post, which prevents the grantee from removing or selling the chattels until after the expiration of five clear days from the day when they are seized. The proviso applies to cases where goods are seized after the commencement of the Act under a Bill of Sale executed and registered before that date. This is an inference from Section 13, which expressly refers to such Bills of Sale {E,r parte Cotton, 1883, 11 Q. B. D. 301). A Bill of Sale was made to secure £200, being an advance of £125 and £75 capitalized interest, payable by instalments, the whole of the principal sum to become due on default in payment of any instalment. The gi-antor, repenting his bargain, purposely made default in payment of the first instalment, and the grantees seized. The grantor then applied by summons calling on the grantees to show cause why, on payment of the money advanced, and £10 for interest and costs, or such other sum as the Judge might direct, the grantees should not withdraw, and deliver up the Bill of Sale to be cancelled. Hawkins, J., made an order that on payment of the instalment of £7 10s. due and £5 to include all costs and expenses, the grantees should withdraw ; but held that he had no jurisdiction to make the order prayed for (re Graves, 1883, 27 Sol. J. 215). Where the grantee had seized the goods on failure to pay two instalments, Huddleston, B., made an order that the grantee should be restrained from removing and selling tlie cliattels on condition that the instalments due were paid. The grantor then offered to pay the amount, but the grantee's solicitor i-efused to accept it pending an appeal. The Divisional Court made an order in the same form. " The question is," said Watkin Williams, J., " whether such cause of seizure any longer exists. It is urged that until the instalment is actually paid the cause of seizure (continues to exist. But if after the seizure tlu^ grantor of the Bill of Sale comes for the express purjjose of ])aying the instalment due, and begs the grantee to receive it and withdraw from possession, and the grantee refuses, I think that in such a state of things the cause of seizure would have ceased to exist witliin the me.uiing of the Section. If the grantor is ready to pay and wislies to pay, and is only prevented from so doing because the grantee will not take the money, I think there is no longer any cause for the seizure." A. L. Smith, J., observed : " It is not by payment of money only that rlic cause of seizure may cease to exist. If tlic .ludge is satisfied that tho iinincy is forthcoming and will be immediately paid, he may, I think, be satisfied that the cause of seiziii'e has ceased to exist " (K.i- jiarte Cotton, 1883, II Q. B. D. 301). Ill one case. Field, J., refused reli(>f ujioii the affidavit of tlie grantee stating thai, although tlu! instalnumts had been duly paid, a sum was due to him for rent which he had paid, at the gi'antor's re(|uest. to the landlord, who had 151 1. 1- OF SALE VOID FXLKSS ATTESTED AND REGISTKRP:D. -iHO ft distrained on the furniture comprised in the Bill of Sale (Coicleij r. Tayler, 1884, \V. X. 77). But '[iispre whether this is consistent with Sect. 7, later decisions that sums paid by the p'rantee for rent &c. cannot Note {Ic). be made recoverable by seizure (see notes to the statutory form, post). Where an interim injunction had been granted and afterwards made perpetual, and the grantees applied, ex parte, to a Divisional Court to have the order set aside, the Court held that if new evidence was to be used on the motion, the parties should apply to the Judge at chambers, and that if the motion was made on the old evidence, it was an appeal, and notice should be given to the other side (Ex parte Midivorth, 1885, 30 Sol. J. 63). The summary remedy given by this provn'so, and available during five days after seizure, does not take away the jurisdiction of a Court of Equity to decree redemption at any time before the goods have been actually sold {.Johnaon r. Dipro. 1893, 69 L. T. 222). (d) A similar i)rovision as to statement of consideration is contained in Sectiim 8 of the Act of 1878 (ante, p. 188), which still applies to Absolute Bills of Sale. A mere clerical error in the statement of the consideration does not invalidate •270 BILLS OF SALE ACT, LS82. a Bill of Sale. Thus, a Bill of Sale and the filed copy stated in Sect. 8, the recital the sum for which the Bill was given as £100, but, Note ('/). by mistake, in the operative part of the instrument the sum was described as £1,000. In all other parts of the Bill of Sale the sum was correctly stated. The Court held that this was a mere clerical error which mioht be aniended {Elliott v. Freeman, 1863, 7 L. T., N. S. 715). It is convenient to group the cases in four classes, according as similar questions or circumstances arise. This arrangement is not based on anything in the Act. But it is useful to follow certain fairly distinct streams of authority. 1. Cases ^L■>here the consideration is an existing debt or liahilify, or the money or ■part of it has been paid before the execution of the deed. In" Credit Co. v. Fott (1880, 6 Q. B. D. 295) a Bill of Sale recit.ed that the grantees had agreed to lend to tlie grantor the sum of £7,350, and that the grantor had agreed to execute the deed as a security for the repayment of that sum with interest. It then witnessed that in pursuance of that agreement and " in consideration of £7,350 now paid by the said company, as the mortgagor doth hereby admit," he assigned the chattels in question. No money in fact passed on the execution of the deed. The grantor was indebted to the company on i)rior transactions, and the sum of £7,350 was the balance found to be due on stating the accounts between them. By the terms of the Bill of Sale it was made repayable on demand by notice in writing. The Court of Appeal (affirming Pollock, B.) held that the consideration was truly stated, both according to its lecral effect and its mercantile and business effect. Lord Selborne, L. C., observed: " When the company treated the £7,350 as a new advance (and no money was in fact advanced, except by treating the previous debt as jjaid), the Company could not then have said to the debtor that he owed tlie debt which had been pre- viously contracted." "The old debt," said Brett, L. .1., "which was payable at once, was wiped out, and a new debt constituted, which was payaljle only after a demand in writing." Two earlier cases before Bacon, C. J., seem at first sight to conflict with Credit Co. v. Pott, supra. In E.r parte Carter, re Threappleton (1879, 12 Ch. D. 901), a Bill of Sale to secure £400 was dated 10th January, 1879. It recited that in June last the grantor had applied to the grantee to lend him the sum of £340, which he had ctmsented to do on an undertaking to execute a Bill of Sale when rec|uired ; that in July last the grantor had applied for a further loan of £60, wliich he had agreed to make on a like condition ; that the grantee had called on the grantor to refund the said sums of £340 and £60, but^ the grantor, being unable to pay the same, had consented to enter into the security in accordance with the said agreement. In fact the grantee had, during the previous months of !March and A])ril, advanced sums amounting to £240 to the grantor and his then partner. On Sth Jitne the partnership was dissolved, the grantor informally agreeing to tiike over the assets, and indemnify his partner against the debts, including tlu' debt to the grantee. A furl her advance of £1C0 was made to the grantor on 14th June, and on 16th July a further and final advance of £60 was made. Bacon, C. J., held that the consideratien was not set forth, since of the £400 the sum of £240 was not advanced in June, nor was it advanced to the grantor ahjne. This decision was questioned by Baggallay, L. J., in E.r parte XatloiKil Mercantile Bank, re Hai/nes (1880, 15 Ch. D. 42). The distinction between this case and Credit Co. v. Pott, supra, may, perhaps, be that there was no real intention to treat the loan as a fresh .advance in June, since there was no release of the former partner. In Ex parte Bericick, re Young (1880,43 L. T. 576), a Bill of Sale dated 14t.h January, 1879, stated t he cnnsideration as "the sum of £()5 now ]i!iid " by the grantee to the grantoi-. The mon(>y had, in fact, been aihaiieed (111 fi\(' separate dates in 1877 ami IS7N. Bacon, C. J., held the CONSIDERATION: (1) EXISTING DEBT OR LIABILITY. 271 stateinoiiT tcj be a in(>re falsehood. Tlie learned Judo;e distinguished Credit Co. r. Pott, aupni (as decided by Pollock, B.), on the oroiind Sect. 8, that in that case there was an ag'reement that security should be Note ('/). (fiven as tlie 7noneys were advanced; but this seems to miss the reason of the decision in Credit Cu. v. Pott. Possibly the decision in E,:c parte Benvick may be supported on the oround that there was no boni fide intention to treat the loan as a fresh or renewed advance ; but this was not the actual ground of the decision, and the evidence as reported rather points the other way. The cases in which a new Bill of Sale has been given in substitution for a void or doubtful Bill of Sale may be regarded as ap))lications of the principle of Credit Co. v. Pott, . nthci- (•()nti-il)uiors, acknowledging tiiat he held the Bill of Sale as trustee for llicni. The Court held that the consideration was truly stated (1) because I lie transaction was in substance a present advance, within the |ii-iiiri|il(' of Cn-ili! Co. r. I'atf, .^tipra ; and (2) l)ecause T. was in I lie |)()siti(iii ol' a culli'clor, and the consideration was trtdy stated as paid by him (/v'r parlc 'I'arliKrk, re Siiiitli, lH\)'i, 4',\ W. U. 206) . A liill of Sal respectively in August and September, for sums amounting to L'.s,3U(). Tiic Court held that the consideration was not truly stated, and that if there was an agreement that the sum of £8,300 duo in futuro was to be taken as between the parties as represented by the present sum of £7,575, the agreement should have been stated {Cochrane v. Moore, 1890, 25 Q. B. D. 57). 2. Cases -ivhere the consideration money is actually paid to the grantor, or by Jiis direction. In Hamlyn v. Betteley (1880, 5 C. V. D. 327), the consideration of a Bill of Sale was stated to be " the sum of £182 3s., now paid by the grantee to the grantor,'' That sum was, at the request and with the assent of the grantor, in T 274 BILLS OF SALE ACT, 1882. fact paid thus : — £8 3s. 3d. and £103 17s. 5d. to discharge two Sect. 8, executions against the grantor's goods ; £25 Os. 9d. to a solicitor Note ((/). (who attested the execution of the Bill of Sale) for money lent and for costs due to him from the grantor ; and the balance £-45 Is. 7d. in cash to the grantor. The Court held that the consideration was sufficiently set forth. " The real consideration," said Grove, J., " for the giving of the Bill of Sale was £182 3s., which passed from the grantee to the grantor. The fact that part of the money went to other persons, with the grantor's assent, does not render the statement of the consideration inaccurate ; it was quite competent to him to direct what should be paid to himself, and» what should be paid to others on his behalf." A Bill of Sale stated the consideration to be " £2,050, by the mortgagees paid to the mortgagor at or before the execution " thereof. That sum was actually paid ; but the gi-antor at once returned to the grantees £550, being the principal amount of two promissory notes and a bill of exchange on which he was liable to the grantees, and £33 in respect of interest thereon and expenses connected with the Bill of Sale. The notes and bill were not then due, though " it seems to have been assumed, as a matter of fact, that the amounts were already due " (Lord p]sher, M. R., in jRi'c^o?-ci^o/i v. Harris, 1889, 22 Q. B. D. 268). But when the bank consented to make the advance of £2,050, the grantor agreed that the amounts should be paid out of it. The Court of Appeal (reversing Bacon, C. J.) held that the consideration was truly stated, and that it was not necessary that the collateral agreement as to the application of the consideration should be set forth {Ew parte National Mercantile Bank, re Haynes, 1880, 15 Ch. D. -42). "It was not the less a loan of £2,050, because by a collateral agreement £550, part of it, was to be applied in the payment of a real bona fide debt from the grantor to the grantees, existing at the time and not arising out of the then transaction between the parties " {per James, L. J., Ex parte Charing Cross Bank, re Parker, 1880, 16 Ch. D. 35). R. granted a Bill of Sale to his solicitor, and part of the consideration was stated to be the sum of £560 that day paid by the grantee to the grantor. In fact only £500 was handed over on the execution of the deed ; £-40 was retained by the gi-antee in payment of his costs of preparing the deed and some other costs which the grantor owed him for prior business, but for which a bill of costs had not been delivered ; £20 was paid to an auctioneer for valuing the chattels with a view to the loan. The Court of Appeal (reversing Bacon, C. J.) held that the consideration was truly stated. " It does not seem to me," said James, L. J., " that the money was the less paid to the borrower, because part of it was, with his consent, applied in payment of a debt for costs to his solicitor, which was not, indeed, strictly payable, because a bill of costs had not been delivered, but which was really owing to the solicitor" (Ex pai'te Challinor, re Rogers, 1880, 16 Ch. D. 260). The cases of Ex parte ChalUnor, supra, and Ex parte National Mercantile Bank, supra, are, however, only binding aiithorities in so far as they decide that if a part of the money stated in a Bill of Sale as the consideration paid at the time of its execution is, by the direction of the borrower given at the time, paid in order to satisfy debts of his then existing, the money so paid may be properly stated in the deed as money then paid to him {Ex parte Firtli, re Coichurn, 1882, 19 Ch. D. 419 ; Richardson V. Harris, 1889, 22 Q. B. D. 268). A Bill of Sale was stated to be given "in consideration (inter alia) of the sum of £10 now paid by the grantee to the grantor." In the preparation of the Bill of Sale, D. acted as solicitor for both grantor and grantee. On the execution of the deed, D., with the consent of the grantor, retained £9 out of the £10 in payment of his bill of costs in the matter, and only handed him the balance of £1. Cave, J., held that the consideration was truly stated, for, on the execution of the deed, D. no longer held tlie money as agent for the grantee or had any COXSIDERATIOX: (3) RETENTION OR DEDUCTION. 275 duty to perforin towards him, but held the money as agent of the grantor, and could with his consent retain the amount of his bill of Sect. 8, costs (E.r parte Hunt, re Cann, 1884, 13 Q. B. D. 36). Note (d). A Bill of Sale given to secure the sum of £80 and interest stated the consideration to be £78 1.5s. This sum included an amount of interest which was due on an earlier Bill of Sale. The difference of £1 5s. represented the agreed expenses of executing the Bill of Sale. Pollock, B., was satisfied on the evidence that on the execution of the Bill of Sale a cheque for £80 was changed, and £80 in notes and gold handed over to the grantor, who out of that sum made certain payments. He accordingly held the consideration trulj- stated on the authority of Etc parte Challinor, ."iipra {Roe r. Mutual Loan Fund Asffociation, 1887, 56 L. T. 631). So, where a Bill of Sale was given in consideration of the sum of £30, and this sum was bori'i. fide paid to the grantor, who immediately handed back £1 to the grantee in payment of a real antecedent debt, Lord Coleridge, C. J., and Cave, J., held there was nothing to impeach the statement of the consideration {Cochrane r. Dixon, 1887, 3 T. L. R. 717). A Bill of Sale stated the consideration to be £400 paid by the grantee to the grantor. The facts were that ^V. H., the father of the grantor, had obtained an advance of £500 from the grantee on a Bill of Sale of his furniture. He applied for a further advance of £400, but the grantee required further security. W. H. accordingly took his son to the grantee's office for the purpose of giving a Bill of Sale upon his furniture. A cheque for £400 was given by the grantee, payable to the son, who indorsed it to his father. The son then executed the Bill of Sale in question. The grantee also took from W. H. a dejiosit of jewellery and a promissory note as collateral security. On these facts Denman, J., held that the transaction was in substance a loan, not to the grantor but to his father, and therefore the consideration was not trulv stated {Heseltine v. Sivimon>', 1892, 8 T. L. R. 500; in Court of Appeal, 1892,'2 Q. B. 547). With this case may be compared Ex parte Carter {ante, p. 270), where Bacon, C. J., held it to be fatal to state as monej' lent to the grantor money which had in fact been lent to the grantor and his partner. It should be distinguished from a case where the money is paid at the grantor's request to some other person indicated by him, where the statement as money paid to the grantor may be sufficient according to the ordinary understanding of business men (see Bowen, L. J., in Richardson v. Harris, 1889, 22 Q. B. D. 268). A compounding debtor gave a Bill of Sale to three of his creditors to secure a loan of £150 and the compositions due to them. The consideration was stated as £150 advanced to him. This sum was advanced for the purpose of paying the agreed composition to the other creditors. It was advanced in three cheques, each drawn payable to the order of the debtor and of one L., an agent of one of the creditors. The cheques were duly indorsed, and paid into an account opened in the joint names of the debtor and L., who was to see to the payment of the composition to the other creditors. Hawkins, J., held that the consideration was truly stated. " As a matter of fact," said the learned Judge, " it was advanced to the debtor, not to the debtor and L. It was money lent by the claimants to him, and he alone could have been sued for it as money lent and advanced to him. . . . The collateral arrangement for having a joint account in L.'s name and in that of the grantor for the purpose of facilitating the disposal of tlie money when advanced does not alter the character of the consideration, which consisted simply of the compositions on the old debts already due and the new advances" {Peace v. Brookes, 1895, 2 Q. B. 451). 3. Cases ,ichere deductions are made from the sum stated to he paid, or where the money or part of it is retained hij the grantee after the alleged payment. In Ex parte Charing Cross Bank, re Parker (1880, 16 Ch. D. 35)j a Bill of Sale was given "in consideration of the sum of £120 by the mortgagees paid 276 BILLS OF SALE ACT, 1S82. to the mortgagor at or before the execution hereof (the receipt of Sect. 8, wliich said sum the mortgagor hereby acknowledges)." In fact Note { of the solicitor \\lio attested the execution of the (lc(>(l. CONSIDERATION : (3) RETENTION OR DEDUCTION. 277 The Court of Appeal held that the consideration was not truly stated, because even if the grantor were liable to pay these sums he did Sect. 8, not become liable till the transaction was completed. Jessel, M. R., Note (rf). expressed the opinion that he was not liable, since the Bill of Sale contained an express charcje of £20 for interest and expenses genei-ally (Ex parte Firth, re Cou-hnrn, 1882. 19 Ch. D. 419). A Bill of Sale recited an agreement for a loan of £70, less £16 to be deducted and retained for agreed interest and expenses. The consideration was stated as ■■ £54, being the said sum of £70 less the said sum of £16 deducted and retained therefrom, and being the agreed interest and expenses in consideration of which the loan was granted, and which said sums of £54 and £16 conjointly were (thereinafter called " the loan ") by the mortgagees paid to the mortgagor at or before the execution thereof, the receipt whereof the mortgagor" thereby acknowledged. The Divisional Court held that this was a mere grammatical error, and that it was quite clear from the whole of the deed what the transaction was {ColUs V. Tiison, 1882, 46 L. T. 387). A Bill of Sale had been given to secure £30 and £15 bonus and interest, payabh; by weekly instalments of £1. On this Bill of Sale £17 remained unpaid, but was not yet due. A new Bill of Sale was then given to secure £35 and £10 bonus and interest ; and the consideration was stated as £35 now paid. The debtor's account was that the lender signed a cheque for £35, which was cashed by the lender's clerk; that £17 was deducted, with 5s. for stamps; and that only the balance of £17 15s. was paid to him. The lender, his clerk, and a third person said that the cheque for £35 was handed to the debtor, who left the lender's office with it, and came back ten minutes afterwards and paid the sum of £17 os. in respect of the first Bill of Sale. On this conflict of evidence Bacon, C. J., believed the debtor's story as the more probable, and held that the consideration was not truly stated, onlv £17 15s. having been actually obtained (Ex parte Bernstein, re Gordon, 1883,74 L. T. J. 245). A Bill of Sale was given to secure the sum of £100. Tliat sum was paid in two cheques for £72 and £28. The grantor indorsed the cheque for £28 and lianded it to a third party in payment of a previous charge on the goods. After cashing the cheque for £72 the grantor on the same day paid to the solicitor of the grantees £6 6s. for the charges of ]ire]jaring the deed and £7 6s. for the exjienses of valuing the goods. Watkin Williams, J., held that the consideration was truly stated. It was not necessarj^ to set out the arrangement that the grantor should apply one of the cheques in pavment of a jirevious charge. '■ As to the other payments," said the learned Judge, " it is not as though it were shown that the money was kept back ; on the contrary, he cashed the cheque, and with the proceeds paid debts he was bound to pay " (Furher v. Abrey, 1883, 1 C. & E. 186). The consideration for an Absolute Bill of Sale of furniture was stated to be " the sum of £500, paid by the assignee to the assignor on or immediately before the execution " of the assignment. The sum of £500 was the agreed purchase price ; but out of that sum the grantee in fact retained (1) £25 in payment of the hire of the furniture for the ensuing three months; (2) £13 iu payment of the agi-eed costs of making an inventory and other expenses of the assignment; (3) £110 in satisfaction of two acceptances for £70 and £40, which had been given by the assignor to the assignee, but which were not then due. The Court of Appeal, affirming Mathew, J., held that the consideration was iiot truly stated on the ground that there was no debt due and payable by the grantor, irrespective of the contract by virtue of which the £500 was to be paid, and therefore none of the amounts retained could trulv be said to have been i)aid to the grantor {Richardson r. Harris, 1889, 22 Q. B. D. 268). 278 BILLS OF SALE ACT, 1882. A Bill of Sale, executed on the morning of the 28th April, Sect. 8, stated the consideration as " £30 now paid." The grantees, how- Note (fZ). ever, refused to pay over any of the money till a distress levied by the grantor's landlord had been jjaid out. A cheque for £30 was drawn, payable to the grantor's order, and was indorsed by her. The grantees then took away the cheque and the Bill of Sale, paid the rent and the broker's charges, and on the afternoon of the same day paid the balance to the grantor. The Divisional Court held that the consideration was not truly stated, no money having been paid or even produced at the time, and the real consideration being the promise to pay the rent to the landlord and the balance of the £30 to the grantor (Bisliop v. Consolidated Credit Corporation, 1889, 5 T. L. R. 378). A Bill of Sale stated the consideration as " £114 now paid." In fact £10 of this was by agreement to be paid away by the grantor to the grantee's solicitor in respect of his charges for preparing the Bill of Sale. The Divisional Court held the Bill of Sale void on the authority of Richardnoji v. Harris, supra, the consideration not being truly stated {Cohen v. Higgins, 1891, 8 T. L. E.. 8). The consideration in a Bill of Sale was stated as £30 now paid. The money was not then paid, the lender having it on deposit in a bank which required notice of withdrawal. It was, however, paid three days after the date of the deed, and on the following day the Bill of Sale was registered. The Court (Wills and Wright, JJ.) held that the consideration was not truly stated, the real considera- tion being the promise or agreement to pay the money. The argument was that the money had been paid at the time of registration — a point fully covered by Bishop v. Consolidated Credit Corporation, supra (Criddle v. Scott, 1895, 11 T. L. R. 222). 4. Statement of matters collateral to the consideration. It is a general rule that collateral stipulations as to the motives of the parties or the intended ajaplication of the consideration need not be set out. " I cannot see," said James, L. J., " that recitals of the motive and object of the advance are required by the Act. The motive of the lender, as it seems to me, is no part of the consideration for the deed, though it may be a collateral indiicement to him to make the advance. Suppose that, instead of there having been bills due by the grantor to the bank, there had been outstanding in the hands of some other bank bills upon which the lenders were liable, and they had said to the grantor ' You must take up these bills ' ; or, suppose a loan were made upon the security of farming stock, and the lender said, ' You must pay the rent which is due to your landlord, or my security will be seriously prejudiced.' Stipulations of that kind would be part of the bargain between the parties, but they would be no part of the consideration which is intended by the Act to be set forth. The Act rocjuires the real, the actual consideration to be set forth, but it does not require that any bargain between the parties relating to it should be stated " (Ex parte National 'Mercantile Bank, re Haynes, 1880, 15 Ch. D. 42 ; ante, p. 274). As to the statement of the reason for giving a Bill of Sale to secure an existing debt see Ex parte Winter, ante, p. 272. From the observation of Jessel, M. 11., in that case that "the Bill of Sale does not state that proceedings had actually been threatened," it may, perhaps, be inferred that such a positive misstatement would have avoided the registration. A Bill of Sale was given in consideration of a present advance of £560 to secure that sum, and also the amount then due or thereafter to become due on an existing mortgage covering future advances. It was recited that £1,045 was th(!n due on the mortgage. In fact there was then due a further sum of £321, which was also secured by a bill of exchange. The Court of Appeal held that the error in stating the amount duo was not sufficient to avoid tlio registration. James, L. J., observed : " It apjiears to me that the Act does not require anything CONSIDERATION : (4) COLLATERAL MATTERS. 279 to be stated which relates to a prior transaction." " The considera- tion for the Bill of Sale," said Cotton, L. J., "is the sum which was Sect. 8, then advanced to the grantor; the amount which the Bill of Sale is Note (d). given to secure is not necessarily the consideration which is intended by the Act " {Er parte Chnllinor, re Ro'jer.^ 1880, 16 Ch. D. 2(30). A Bill of Sale was given in consideration of an advance of £242. There Avas a verbal agreement by the grantee not to register the Bill of Sale, in consequence of which he charged a larger bonus for the advance than he would otherwise have done. The Court of Appeal held that the agreement not to register was a mere collateral agreement. " The agreement not to register," observed Jessel, M. R., "was the motive which induced the grantors to consent to pay an additional bonus, but it was not part of the consideration for the deed. If it had l)een inserted at all in the deed, it would have been by way of a covenant by the grantee not to register the deed. It might as well be argued that every covenant in a deed is part of the consideration for it" (Ex parte Popplewell, re Storey, 1882, 21 Ch. D. 73). A Bill of Sale was given " in consideration of the sum of £45 now paid to the grantor by the grantees, the receipt whereof the said grantor hereby acknowledges, and of the covenant on the part of the grantees hereinafter contained." The £45 was paid, but the Bill of Sale contained no covenant by the grantees. The recitals set out an agreement by the grantees to take up two bills of exchange on which they were liable, and which had been discounted by a certain bank. The instruments so described were in truth promissory notes, and had not been discounted. The Court of Appeal held that the consideration was stated with sufficient accuracy ; that the misdescription of the promissory notes and the misstatement as to discounting were immaterial ; and that the recital of the agreement was in effect a covenant to take up the promissory notes. " The consideration," said Brett M. R., "was that the promissory notes should be taken up, and that the sum of £45 should be advanced " {Roberts v. Roberts, 1884, 13 Q. B. D. 794). A Bill of Sale was given in consideration of the sum of £290 then paid by the grantee to the grantor. That sum was actually paid on the execution of the deed. There was, however, an understanding that out of the advance the grantor should forthwith pay to the grantee the sum of £235 due to him on a ])rior Bill of Sale and on certain promissory notes; and two days afterwards the agreed sum was paid. The Court of Appeal held that the agreement as to the subsequent application of the money was not part of the consideration for the Bill of Sale which was required to be stated {Thomas v. Searles, 1891, 2 Q. B. 408). (e) " Void in respect of the personal chattels comprised therein " means void even as between grantor and grantee. Under the Act of 1878 an unregistered liill of Sale was liable to be avoided as against certain persons, but remained valid between grantor and grantee, and as against all persons other than those sj)ecified (see note (/) to Section 8 of that Act, ante, p. 189). Under this Act tlie fact that the grantor has taken possession under the Bill of Sale before any ((uestion arises as to the validity of the registration is immaterial — the parties cannot ratify or confirm a void agreement {Er parte Parsons, re Toicnse7id, 1886, 1(5 Q. B. D. 532). A Bill of Sale which is void under Section 8 or Section 9 of this .\ct cannot be construed as a licence to seize, so as to justify the yrrantee in taking or retaining possession of the goods {Griffin v. Union Deposit Bank, 1887, 3 T. L. R. 608). As to the difference in these respects between the Acts of 1854 and 1878 and the present Act see ante, pp. 3, 4. Th-^re may be cases, however, where, though a Bill of Sale is void, the grantee can make out a title to the goods or their proceeds by virtue of a separate and indei)endent transaction (Lindley, L. J., in fjX parte Parsons, supra). "I do not -i 280 BILLS OF SALE ACT, 1882. doubt," said Sir J. Hannen, " that it would be competent for a Sect. 8, debtor, who was aware of the invalidity of a Bill of Sale, to fi;ivo Note (e). his creditor a right to seize the goods comprised in it, and to acquire a property or beneficial interest in them, irrespective of the Bill of Sale " {Furber v. Cobb, 1887, 18 Q. B. D. 494). Goods comprised in a void Bill of Sale having been sold by auction, the grantor, in the presence of the auctioneer, told the grantee to keep the proceeds in part satis- faction of the debt due to him. The trustee in bankruptcy of the grantor afterwards claimed the money from the auctioneer, who interpleaded. The Court of Ajjpeal held that the trustee was not entitled to the money. " The sale," said Lord Esher, M. R., " was wrongful, and the grantor could have given notice to the auctioneer not to pay the money over. But he told the grantee that he might keep the money to pay his debt. That was an assent by the grantor to the auctioneer's paying the money to the grantee, and that amounted to payment as between the grantor and the grantee " {Parsons v. Dewsbury, 1887, 3 T. L. R. 354). So, when possession has been taken under a void Bill of Sale the parties may agree that the Bill of Sale shall be rescinded, and that the grantee shall have a lien on the chattels for the debt due to him (Parlcer v. Lyon, 1888, 5 T. L. R. 10; ante, p. 195). On the other hand, "if the debtor only intends to carry out, on his part, the provisions of the Bill of Sale, and to permit the creditor to exercise his rights under it, no right in addition to or other than those created by the Bill of Sale will be conferred " (Sir J. Hannen, in Furber v. Cobb, supra). Thus, where the grantor merely told the grantees that he had sold his equity of redemption, and that they must take possession of the goods if they wished to recover their money, it was held that the meaning was that they had better, for their own safety, i)ut in force their powers under the Bill of Sale, and consequently that the grantees' rights depended solely on the Bill of Sale (Furber v. Cobb, supra). As to the remedy of the grantor in the event of seizure and sale under a void Bill of Sale see ante, p. 57. If a Bill of Sale is void under this Section, as distinguished from Section 9, post, the grantor remains liable on the covenant for payment (Davies v. Rees, 1886, 17 Q. B. D. 408; Heseltine v. Simmons, 1892, 2 Q. B. 547). Form of Bill 9. A Bill o£ Sale made or o-iven bv way of security for the payment of money (a) by the grantor thereof shall be void (6) unless made in accordance with the form in tlie Schedule to this Act annexed (c). {a) The Section is not limited to Bills of Sale given to secure the repayment of loans, though the form in the Schedule is moulded with special reference to loan transactions. " The Statute must bo understood to have prohibited Bills of Sale of personal chattels as security for money, to which the form given by the Statute is not appropriate" (Lord Ilalsbiiry, L. C, in Tiiomas v. Kelly, 1888, 13 A])p. Ca. 50G). If a transaction coming within the Act cannot be e.xpressed in accordance with the statutoiy form, it cannot be effected at all. Tlius, a document giving a licence to take immodiato possession of chattels as a security I for a debt is void under the Section, though it is from its nature impossible that I it should 1)0 made in accordance with the form (Ex parte Parsons, re I'ou-nscnd, f 188G, 1() Q. B. D. 532). " It is no answer to the Act to say that the nature of t]u' transaction was such tliat the document could not l)o brouglit within tin- statutory form " (Bowen, L. J., in E.v parte Huhhunl, rr Ihiniu-irk, 1«K0, 17 Q. B. 1). 690). Hence, a Bill of Sale cannot now be given by way of iiidcinnity against \\ liability on a guarantee (Hughes r. lAtllr, l.s,S(), IS (ji.H. 1). 32). ' FORM OF BILL OF SALE. 281 This Section has an important bearing on the definition of a liill of Sale contained in Section 4 of the Act of 1878. A Bill of Sect. 9, Sale in security for the payment of money by the grantor must now Note («). bo an assurance in accordance with the statutory form. Licences to take possession of chattels as security for a debt, agreements creating a right in equity to personal chattels, and assurances not in accordance with the form, such as an inventory of goods with receipt attached, are not now available as securities (see ante, p. 151). It has been held that attornment clauses and other instruments within ' Section 6 of the Act of 1878 are to be " deemed to be Bills of Sale " under this Act for the purpose of registration merely, but that, not being actually Bills of Sale, they need not comply with the statutory form (Green r. Marsh, 1892, 2 Q. B. 330). The same reasoning, if sound, would seem to apply also to instruments which operate as modes of disposition of trade machinery, and are therefore " deemed to be Bills of Sale " under Section 5 of the Act of 1878. But the view suggested in this book is that these two classes of instruments are not touched by this Act at all, and that Section 8 of the Act of 1878 is unrepealed with respect to them (see note (e) to Section 3, ante, p. 246). The Bills of Sale Act, 1890, enacted that certain instruments affecting imported goods were not to be deemed Bills of Sale within this Section ; but by The Bills of Sale Act, 1891, such securities were exempted from the Acts altogether. (b) This Section avoids a Bill of Sale in toto, not merely as regards the personal chattels comprised in it, but as regards everything which appears on the face of a Bill of Sale in the scheduled form. Hence, the grantee cannot sue the grantor on the covenaiit for payment of principal and interest; he can only recover the money actually advanced with interest at five per cent, on an implied agreement (Davies v. Bees, 1886, 17 Q. B. D. 408). A void Bill of Sale cannot be construed as a licence to seize, so as to justify the grantee in seizing the chattels {Griffin r. Union Depo.^it Banlr, 1887, 3 T. L. R. 608). Where a Bill of Sale includes a mortgage of chattels real, a deviation from the statutory form invalidates the instrument in so far as it is a Bill of Sale of personal chattels, but does not avoid it so far as it is a mortgage of chattels real (In re O'Dicyer, 1886, 19 L. R. Ir. 19). In this case it was assumed that the insertion of the mortgage of leaseholds did not of itself invalidate the Bill of Sale, which was admittedly bad on other grounds. So, where a limited company gave a mortgage of lands in a separate tetttatum, and a Bill of Sale of personal chattels, also in a separate testatum, in one deed, which was void as not complying with the statutory form, it was held that the mortgage of the lands remained valid. "To hold otherwise," said Porter, M.R.," would lead to this result — that if a mortgage of lands of great value to secure, say £20,000, were so drawn by inadvertence or ignorance as to comprise one single and comparatively valueless personal chattel in the security, the mortgagee would lose all the benefit of his mortgage, including the covenant for payment, if the instrnment was not properly framed and registered as a Bill of Sale (which, in the case put, it is hardly possible it could be), and this even though the mortgage itself were registered, and validly registered as such" (In re Banfieltine v. Simmonti, aiijirn). For example, see E,r parte Prohyn and Griffith v. Willianis, ante, p. 273. He, the said J. 7). doth hereby assign unto ('. 1)., his executors, administrators, and assigns, all and singular the several chattels and things specifically described in the schedule hereto annexed, The insertion of the words " as beneficial owner " is not in accordance with the form, and vitiates a Bill of Sale : for the effect would be to incorporate the provisions of Section 7, Sub-section (c), of The Conveyancing Act, 1881, and so confer on the grantee, on default in payment, an immediate power of entry and sale inconsistent with Section 13, pout (Ex parte Stanford, re Barber, 1886, 17 Q. B. D. 259). A Bill of Sale miuh* l)('tw(>en a mortgagor and foui- sets of mortgagees to secure the repayment of diiferent debts owing to ciu-h respectively at different times, with a declaration tiiat in case of default in jjaynient of any sum tliercby secured it should b(" lawful for the mortgagees to seiz{> and sell the goods assigned, was held to be so c()m))licated in its terms as substantially to vary from the form, and therefore to be void. "If one examines the form," said Bowen, L. J., " a substantial part of it is, as it seems to me, that property must be assigned to the person who finds the money, and that to such person STATUTORY FORM -. ASSIGNMENT OF CHATTELS. 285 ivpaynient is to be made of the money borrowed ; and therefore 1 do o 4. q not think that a Bill of Sale is within the Act if the money is lent * ' l)y one person and made repayable to another person, or if the 'statutory property is assigned by it to one person, and the repayment is to be -torm. to another, nor if the assignment of the property is to one person to secure repayment to another" (Melville v. Stringer, 188-i, 13 Q. B. D. 392). But an assignment to parties who are joint creditors to secure repayment of sums due to them jointly would be good (ibid.) ; and where several persons combine to find the money, a Bill of Sale to secure the total amount may be given to a trustee (ihid.), or to a person in the position of a collector (Ex parte Tiirbnck, re Smith, 1894, 43 W. R. 206; ante, pp. 215, 272). The words of assignment operate upon the '" chattels and things " specifically described in the schedule. They should be read in connection with Sections 4, 0, and 6, ante, which relate to the schedule. " It seems to me," said Lord Macnaghten, " that if there is any one thing which is plainly a characteristic of the statutory form it is this : that in the body of the instrument there is no substantive description of the things intended to be assigned. Following the directions contained in Section 4, the statutory form relegates to a schedule the description of the personal chattels intended to be comprised in the Bill of Sale " (Thomas V. Kelly, 1888, 13 App. Ca. 506). It would be a reasonable inference that the words " chattels and things " are only capable of passing articles which are or are deemed to be personal chattels within the Acts. But this has apparently never been decided. As to the (juestion whether jjroperty other than personal chattels, if inserted in the schedule, would pass to the grantee under these words, and whether the Bill of Sale would be avoided by inserting such property in the schedule, see ante, pj). 250, 251. It would seem that " chattels and things " would not include book debts (Brotcne r. Fryer, 1882, 46 L. T. 656). If so, the insertion of book debts in the schedule would be inoperative as between grantor and grantee. The following cases relate to the alteration or enlargement of the operative words of the form : — In Thomas v. Kelly (188S, 13 App. Ca. 506) a Bill of Sale purported to assign all and singular the several chattels and things specifically described in the schedule, '"together with all other chattels and things the property of the mortgagor now in and about the premises, and also all chattels and things which may at any time during the continuance of this security be in or about the same or any other jn-emises of the mortgagor (to wliicli the said chattels and things or any part thereof may have been removed), whether brought there in substitution for, or renewal of. or in adflition to the chattels and things hereby assigned." Tlie grantor's goods having been seized under an execution, the grantee claimed the chattels specifically described in the schedule, and abandoned all claim to the rest. But the House of Lords, aflfirming the Court of Appeal, held the Bill of Sale altogether void by reason of the above words. " An essential condition of the deed," said Lord Halsbury, L. C, '"appears to me to be a present assignment of goods capable of specific description and present assignment. It is obvious that a Bill of Sale which jjurports to assign after-acquired pro])erty, whether in the form of a covenant (its true legal eifect) or, as stated specifically in words, as part of the securitj', is not in accordance with the form, and therefore void." Tltom^is V. Kelly, supra, overruled on this point Roberts v. Roberts (1884, 13 Q. B. D. 794), which was formerly the guiding authoritj'^ : cf. Levy r. Polack (1885, 52 L. T. 551). Crasser v. Maxwell (1885, W. N. 95), Bouchette v. Attenboronqh (1887, 3 T. L. R. 813). In Hadden v. Oppenheim (1889, 60 L. T. 962) a Bill of Sale assigned the chattels specifically described in the schedule, " and also all chattels and things which may during the continuance of the said securitv be substituted for tliem 286 BILLS OF SALE ACT, 1882. „ , _ or any of them, pursuant to the covenant hereinafter contained." ' No such covenant Avas inserted. The deed was held void. The Statutory Cq^j.^ (Mathew and Grantham, JJ.) appear to have thoug-ht that if r orni. there had been a covenant for the purpose of maintaining the security and the words had been limited to articles substituted thereunder, the deed would have been good. This is ditficnlt to reconcile with all the language of the Law Lords in Thomas v. Kelly, supra, but is supported by the dicta of Lopes and Kav, L.JJ., in Seed v. Bradley, infra. In Cochrane v. Entwistle (1890, 25 Q. B. D. 116; ante, p. 251) a Bill of Sale assigned the chattels and things specifically described in the schedule, " now in and about the premises known as P. Farm, together with all the tenant-right valuation, goodwill, tillages, and interest of the mortgagor in and to the said farm lands and premises." The schedule contained similar words after the specific enumeration of articles of furniture and household goods. The deed was held void, becavise comprising chattels real as well as personal chattels. In Seed v. Bradley (189-4, 1 Q. B. 319 ; ante, p. 259) Lopes and Kay, L.JJ., seem to have thought that the Bill of Sale in Thomas v. Kelly, snjyra, would have been good if the added words had been limited either to chattels within the protection of Section 6, Sub-section 2, or to articles to be substituted under a covenant for maintaining the security. " The words ' in addition to.' " observed Kay, L. J., " made it impossible to treat the assignment as though it were a covenant to maintain the security." As regards substituted fixtures &c. within Section 6, Sub-section 2, words assigning substituted chattels in the body of the deed might probably be treated as merely superfluous. But as regards other chattels, it would rather seem that such words of assignment would avoid the Bill of Sale by altering the legal effect. They would give the grantee an e(|uitable title to substituted articles ; whereas under the statutory form, as interpreted by the Act, the grantee would take no title except as against the grantor. As to the mode of assigning or charging substituted fixtures, plant, or trade machinery, see ante, p. 258. There is no implied enactment that the place where the goods are situated must be described in the Bill of Sale ; nor is such a statement necessary to the specific description in the schedule {Ex parte Hill, re Lane, 1886, 17 Q. B. D. 74). By way of security for the payment of the sum of £ and interest thereon at the rate of per cent, per annum [or whatever else may be the rate']. This clause (according to the view suggested ante. \>. 22U) is the condition contained in the body of the statutory form, the mode of payment being further defined in the covenant for payment which immediately follows. As to the omission to register a defeasance, condition, or declaration of trust, subject to which a Bill of Sale is made or given, see Section 10, Sub-section :5, of the Act of 1878 (ante, p. 198), and notes (p. 213 et seq). The mere omission of the words " by way of security " is not a fatal defect if the deed itself shows, by recitals or otherwise, that it is given by wiiy of security {Roberts v. Roberts, 1884, 13 Q. B. D. 794). But if a Bill of Sale in form absolute is, in truth, given to secure a loan, it is void under Section 9 because it is not in accordance with the statutory form {E.r jiarfe Finlay, re Linton, 1893, 10 Mor. 25S). Perhaps the b(,>st e.vpositiou of f his clause is to be found in Ihiris r. Burton (1883, 11 Q. J{. D. 537), where Brett, M. K., observed : " The real principle of the form is that whatever may be the consideration for the sum of money secured by STATUTORY FORM: PRINCIPAL AND INTEREST SECURED. 287 the Bill of Sale, a fixed sum shall be stated therein in figures and in Sect. 9 direct terms, and that sum, with rateable interest thereon, shall be o, , , recovered by the holder ; that interest shall be calculated up to the „ _ •' time when the sum mentioned as the principal amount shall be called in. The grantee must not attempt to alter the sum secured, and nothing must be added to it except by way of rateable interest." Though the form seems to provide for securing only the principal sum named and interest thereon, it has been held that payments made by the grantee in respect of rent, insurance, &c., together with interest thereon, ma}- lawfully be charged on the chattels (see post, pp. 299, 301). The Bill of Sale must state a definite principal sum to be jsaid. Hence, a Bill of Sale given in consideration of the grantee having become guarantee and signed a promissory note for the payment of £45 by the grantor, of which £32 or thereabouts was then owing, and assigning the chattels " by wa}' of security for anj- moneys which the grantee might be called upon to pay in respect of such guarantee and interest thereon," was held to be void (Huijhes v. Little, 1886, 18 Q. B. D. 32). On the same ground, a Bill of Sale given to secure the repayment of specified sums, " and any sum or sums which may hereafter be advanced," was held to be void-; and Lord Esher, M. R., e.xpressed the opinion that a Bill of Sale to secure future advances is necessarily void, because the amount of the future advances must be uncertain {Cook v. Taylor, 1887, 3 T. L. R. 800). The decision in Hughes v. Little, nupra, was followed in In re Hill, Official Receiver v. Ellis (1895, 2 Mans. 208). Ellis joined with the debtor Hill in a promissory note for rent due by the debtor. Three days after- wards the debtor gave him a Bill of Sale " in consideration of the mortgagee having jointly made the promissory note for £36 1-is., with interest at five per cent., to secure a debt due from the mortgagor, and also in consideration of the mortgagee having agi-eed to pay the sum of £3 6s. for the costs of and incidental to the preparation and registration of this Bill of Sale." The Bill of Sale purported to secure the aggregate sum of £40 and interest thereon at the rate of five per cent. ; and there was a covenant to pay the aggregate principal sum with the interest then due by equal monthly payments of £2 a month. Vaughan Williams, J., held the Bill of Sale void against the trustee in bankruptcy, both the amount and the time of payment being uncertain. Two questions of difiiculty arise with reference to the statement of the principal sum to be secured, upon which there is a singular dearth of authority. (1) It has been said — on the authority of Ex parte Pearce, re Williama (1883, 25 Ch. D. 656) — that the principal sum stated to be secured ought not to include any sum by way of bonus. In that case a Bill of Sale was given in consideration of £30 paid and also in consideration of £10 charged by the grantee by way of bonus ; and the grantor agi-eed to pay the sum secured (£40), together with interest and costs due thereon. Bacon, C. J., held the Bill of Sale void, but on other grounds. With reference to the provision for a bonus in addition to the sum actually paid to the grantor, the learned Judge merely observed : " I do not know that that in itself is unlawful." There seems to be no other authority precisely in point. Apart from the Bills of Sale Acts, sums may be deducted by a mortgagee for commission or bonus at the time of making the advance, provided the deductions are made as part of the mortgage contract, under a bargain deliberately entered into by the partie-s while on equal terms, and without any improper pressure, unfair dealing, or undue infiuence on the part of th(! mortgagee. In such a case the Court treats she transaction as amounting in fact to the payment of the whole amount of the advance to the mortgagor, and the return of a certain part of it to the mortgagee as a consideration for the accommodation (Potter f. Edwards, 1857, 26 L. J., Ch. 468; Mainland v. Upjohn, 1889, 41 Ch. D. 126). Under the Act of 1878, 288 BILLS OF SALE ACT, 1882. Sect. 9, such transactions were of common occurrence. If the consideration o. , . , were not truly set forth the Bill of Sale was void under Section 8 ; ' p _ • but the covenant to pay the principal sum secured and interest thereon was not avoided (see ante, p. 191). If the consideration was properly stated, the Bill of Sale was free from objection. If such a transaction now avoids a Bill of Sale, it can only be as an inference from the statutory form. (2) The second question is whether interest due to the grantee on prior transactions may be capitalised when the Bill of Sale is entered into, so as to form part of the principal sum secured by the Bill of Sale and to bear interest accordingly. Apart from the Act, it is lawful for a mortgagee to stipulate that interest in ai'rear shall be capitalised at half-yearly rests, so as to secure interest on interest in arrear {Daniell v. Shidair, 1881, 6 App. Ca. 191 ; Clarktion v. Henderson, 1880, 14 Ch. D. 348). There is ample authority that a stipulation for interest on interest vitiates a Bill of Sale (Goldstrom v. Tallerman, 1886, 18 Q. B. D. 1 ; and other cases, post, p. 292 ef seq.). But this appears to be an inference from the statutory form, which makes the deed a security for a named principal sum " and interest thereon," but for nothing more. There seems to be no reported authority for going behind the principal sum secured and ap])lying this rule outside the four corners of the Bill of Sale. The decisions with reference to specifying the rate of interest are not easy to follow. In Wilson r. Kirl'irood (1883, 48 L. T. 821) a Bill of Sale was given to secure the repayment of an advance of £100, with £76 as agreed interest thereon, by sixteen equal quarterly instalments of £11 each. Chitty, J., held the deed good — at all events for the purposes of a motion to restrain the grantee until trial from taking possession of the goods. The learned Judge obsei'ved that the deed showed what the total demand could at the utmost amount to, and that after default made the rate of interest could at once be ascertained. This seems to assume either that the rate may vary from quarter to quarter, or that a rate of • interest which may be different in different events is, nevertheless, a fixed rate of interest ; on the latter view, the whole agreed interest would be payable in any event, but the case would be theoretically distinguishable from an implied provision that future interest should become due in case of default. On a])peal to the Court of Appeal the order of Chittv, J., was varied by arrangement (1883, W. N. 44). In Davis V. Burton (1883, 11 Q. B. D. 537) a Bill of Sale was given to secure l)ayment of £300, "and £180 for agreed capitalised interest at the rate of 60 per cent, per annum," payable by consecutive; quarterly instalments of £45 each, tlie first of such instalments to become due and payable on the 12th of March, 1883, and the Vjalance, or so much as shall remain unjjaid, to become due and jiayable on the 12th of December, 1883 (sic); and it was agreed that if the grantor should break any of the covenants all the moneys thereby secured should immediately become payable. The Court of Appeal held the Bill of Sale void, because on failure to pay any instalment the whole of the capitalised interest would become ])ayable. Brett, M. R., observed : " If upon failure to pay tlie first instalment the wliole of the interest, which the grantee is ultiuuitely ujioii jjerfornuincc of the contract to receive, becomes immediately payable, the Bill of Sale would, I think, be contrary to the form in the Schedule of the Act ; for interest is payable upon money only so long as it is due, and it is contrary to the nature of interest to make it payable before it is due, on the ground that a condition has not been performed, or because a certain event has happened ; that is an alteration of, and a departure from, the form given in the Schedule to the Act." Wilson r. Kirhrood, supra, was cited, but not referred to in the judgments, though Fry, L. J., observed th;i I ''a fixed sinn bv wav of iiilcrcst ni;i\' be Inwfnl." 1( should be STATUTORY FORM: PRINCIPAL AND INTEREST SECURED. 289 noted that the decision in Dari.-< r. Burton depends entirely on the Opp*. q statutory form. If a liond is conditioned to secure the repayment of ' ' a k)an by instahnents. with a provision that on default in payment '^t^tutory of any instalment all future instalments are to become at once orm. due. the entire balance, though comprising future interest and premiums of insurance, may be recovered on default ; it is not a penalty against which a Court of Equity will give relief {Protector Loan Co. v. Grice, 1880, 5 Q. B. D. 592. reversing Bovven, J., ihid. 121 ; cf. Wallingford v. Mutual Society, 1880, 5 App. Ca. 685). The rule in Davis v. Burton, supra, was followed in a case where interest was calculated in a lump sum, which was to become due and payable upon failure in payment of any instalment {Ev parte Abrams, re Johnstone, 188i, 50 L. T. 184) ; in a case where the grantee was empowered to seize and sell for the whole ])rincipal sum, and a lump sum as agreed interest and bonus, on failure in payment of any instalment (Myers r. Elliott, 1886, 16 Q. B. D. 526) ; and in a case where interest was reserved at 27 i^er cent., but the whole amount remaining unpaid upon the security was to become payable on default in payment of any instalment, interest being thus " made payable on a day certain, irrespective of the period at which the interest would become due according to the ordinarv course of events" {Roe v. Mutual Loan Fund, 1887, 56 L. T. 631). In Thorpe v. Cregeen (1885, 55 L. J., Q. B. 80), an action of trespass for seizing the goods, the Bill of Sale provided for payment of a principal sum of £30, and £5 as interest, by five equal monthly payments of £7 each. The Divisional Court (Lord Coleridge, C. J., and Mathew, J.) held that Davis v. Burton, supra, was clearly distinguishable, and that the statement of interest in a lump sum was unobjectionable : for, though the form states that the interest must be at a certain rate, the rate may be varied. The reasoning seems identical with that of Chitty, J., in Wilson v. Kirkicood, supra, though the argument for the defendant was that on failure of any instalment the whole sum did not become due. In Myers v. Elliott (1886, 16 Q. B. D. 526) a Bill of Sale was given "by way of security for the sura of £115, together with the sum of £15, the agreed amount of bonus and interest thereon, making together the sum of £130." The Bill of Sale was held void. The actual decision proceeded on two grounds : (1) Because, on the true construction of the deed, the grantee was enabled upon default to seize and sell for the whole sum secured, so that the case fell within the authority of Davis v. Burton, supra ; (2) Because the £15 included both interest and bonus, and it was impossible to say how inuch was one and how much the other. But the learned Judges also expressed the opinion that, even if the whole £15 was to be regarded as interest, the Bill of Sale would be void. Lopes, L. J., obsei-ved : " I believe that the intention was that the clearest possible information should be given to the borrower as to the rate of interest which he was paying, and, therefore, speaking for myself, I do not think that a Bill of Sale can be made to provide in this way for capitalised interest or bonus without rendering it void under the Act " (see also Lumley v. Simmons, infra, where the learned Judge repeated this observation). The Court accordingly fiuestioned the decision in Thorpe v. Cregeen, supra; but it does not appear that Wilson V. Kirkwood, supra, was referred to. In Lumley v. Siinmons (1887, 34 Ch. D. 698) a Bill of Sale provided for payment of interest "at the rate of one shilling in the pound per month." The Court of Appeal, affirming Stirling, J., held that the Bill of Sale was good, on the ground that " a person of ordinary intelligence could easily calculate from that statement that the rate of intei-est was 60 jier cent, per annum." In Blanl-en^teix r. Robertson (1890, 24 Q. B. D. 543) a Bill of Sale was given 290 BILLS OP SALE ACT, 18S2. Sect. 9, tatutor Form. to secure the repayment of a loan of £50, "and interest thereon at the rate of £17 10s. for three years," payment of principal and a u ory interest to be made bv thirty-six equal monthly instalments of £1 17s. 6d. The Divisional Court (Denman and Wills, JJ.), reversing Charles, J., held the deed void, because it did not specify any rate of interest as chargeable for the loan. The learned Judges disapproved both Wilson V. Kirl-irood, and Thorpe r. Cregeen, attpya. It is difficult to avoid the conclusion that the Courts have so construed the word " rate " as to deprive the words in brackets of their natural meaning. In Davis V. Burton (ante, p. 288), Fry, L. J., observed : " Surely the form requires that the interest shall be computed year by year, or mcmth lay month, or by other fixed periods, as the parties may agree upon." In Myers v. Elliott (a^ite, p. 289), Lord Esher, M. R., observed, with reference to the statement of a lump sum for interest: "I think that the effect would be that the borrower might be borrowing money without having any idea of the rate of interest he was to pay, whereas the intention of the Legislature is that he shall be distinctly informed what such- rate is, so that, if it be manifestly exorbitant, his attention may be called to the folly he is committing." Lindley, L. J., also said : " Even if the whole £15 must be looked on as interest it would be exceedingly difficult to calculate the rate of interest." Lopes, L. J., expressed the opinion that "the Bill of Sale is to specify the percentage per annum, or per month, or whatever the rate may be." In Lumley v. Simmons, supra, Stirling, J., referring to a stipulation for intei-est at one shilling in the pound per month, said : " The form in the Schedule does not restrict the rate to a rate per cent, or per annum, and I think it would be drawing too fine a distinction if I held this Bill of Sale void, because it does not reserve interest at a percentage per annum, although it does clearly state a rate of interest." In the same case Cotton, L. J., observed : " Undoubtedly the Act does require that the Bill shall state with reasonable certainty what the rate per cent, per annum is to be. I think this Bill of Sale does so. . . . Here a person of ordinary intelligence could easily calculate that the rate of interest was £60 per cent, per annum." These observations would be perfectly just if the words in brackets were ''or otherwise specify the rate of interest." The statement of interest per pound per month is upheld, because it is a sufficiently clear state- ment of a rate per cent, per annum. But the words in brackets ap])ear to imply that the rate may be something else than a i"ate per cent, per annum ; and the words " whatever else " import some latitude. The language rather suggests that the Legislature used the word "interest" in the sense of money paid for the use or loan of money, and the woi-d " rate " in the sense of the basis or standard on which that paynuMit is agreed upon. On this view it would not be necessary that the payment should he spread uniformly or " ratoably " over a period of time — the ordinary mercantile sense of a "rate of interest." It is sometimes forgotten that a rate per cent, per annum is a highly abstract conception, not fully realised by iininstructcd borrowers. And the said A. B. doth furtlier agree and dechxre that he will duly pay to the said C^. B. the principal sum aforesaid, too-ether with the interest then due, by equal payments of £ on the day of [or lohatevcr dsf iiunj h<- f/ie stipniafed limes or lime of payment^. There must be a stipulated time or times of payment. An agreement to pay tlic sum secured " forthwith " lias been held not to be ill accordance with the form (l\.f jxirtc Pearcc, re Williams, \HKi, 2') Ch. D. ()50; see Mch-ilh; r. Rlriiiurr, \HHl, J3 Q. B. D. 392). STATUTORY FORM: COVENANT FOR PAYMENT. 291 Sect. 9, tatut Fori A covenant to pay the sum advanced and interest upon demand made in writing is not in accordance witli tlie form (Hetherington r. (irooMc. 1884, ]:i Q. B. D. 789; F>n-y,ivaJl c. H'idson, 1893. 1 Ch. 335). Statutory The same principle applies to a provision for payment of ])rincipal and interest on demand (Mackay i\ Merriff, 1886, 3-i W. R. 433), or within twenty-four hours after demand in writing {Clem!rinciple does not apply to repayment of sums paid by the grantee for rent, taxes, insurance, &c., which may be required on demand (see post, p. 298). The same principle applies whenever the time of payment is by any circum- stances rendered uncertain ; therefore a Bill of Sale given by way of indemnity to a surety is now void. The time of payment is uncertain, because the liability to pay depends on a continjrency \vhich may or may not happen, and maj' happen at one time or another (Hughes v. Little, 1886. 18 Q. B. D. 32; see also In re Hill, Official Receiver r. Ellis, 1895, 2 Mans. 208; ante, p. 287). A covenant in a Bill of Sale dated 5th January, 1887, for payment of the principal sum, with the interest then due, by equal payments on the 5th July and oth January (without stating the year), was upheld as a suflBcient state- ment of the time of repayment, the construction being " the 5th July and 5th Januarv next ensuing the date of the Bill of Sale" (Gramiell v. Monck , 1889. 24 h. R. Ir. 241). It is not imperative that tlie sum secured should be repaid by instalments. -V Bill of Sale, dated 13th March, jjrovided that the entire principal sum and the interest then due should be paid on the 13th April then next, and that so long after that day as any princiiaal money should remain due, interest shotild be ))aid half-yearly on 13th October and 13th April in every year. The Court of Ap))eal held this mode of i)ayment to be lawful and in accordance with the form. "The words 'time of payment,'" said Fry, L. J., "contrasted with the plural ' times,' show that a single payment is admissible, and, therefore, that there is no obligation to divide the repavment into anv number of equal portions " {Watkins r. Erans, 1887. 18 Q. B. D.'386). A Bilfof Sale contained a covenant for payment of the principal sum. together with the interest then due at a fixed rate, on 1st June, with a fui'ther covenant that if the grantor did not break any of the covenants contained in the Bill of Sale, and paid to the grantee the principal sum and interest by equal monthly instalments of a fixed amount (the first instalment to be paid on 1st June), the grantee would accept payment by such instalments. The Divisional Coui-t (Mathew and Cave, JJ.) held that the condition was inserted in ease of the debtor, and that the time of payment was certain (Ex parte Patpie, re Colon, 1887, 56 L. T. 571). When payment is to be made by instalments it is possible that the instal- ments may consist of principal or of interest or of both combined. The construction of the covenant in this respect is of great consequence where there is a provision for accelerating the payment of future instalments, or for payment of interest on an overdue instalment. It is necessary here to notice two default clauses often inserted in Bills of Sale : (1) It may be provided that " if default shall be made in any payment when it l)econies due, the whole of the jirincipal (or so much thereof as shall then remain un])aid), together with the interest then due, shall at once become payable" (Lunilni v. Simmons. 1887. 34 Ch. I). 698) . Such a term is imjilied even when the Hill of Siile is silent. On default in payment of any instalment. 292 BILLS OF SALE ACT, 1882. Sect 9 ^^^^ grantee can seize for the whole amount due, subject to the Q ,. 1 .' power of the Court to restrain removal or sale on being satisfied a utoiy ^jjjj^j. j-j^g cause of seizure no longer exists (see ante, p. 262). An o^^^- express clause to this effect would be vitiated by any attempt to capitalise future interest, or to add it by way of bonus to the principal, or if the clause purported to accelerate the payment of instalments which included interest (see Davis v. Burton, ante, p. 28S). (2) It may be stipulated that " in case default shall be made iu paj-ment of any of the said instalments of the principal sum the same shall, until payment, continue to bear interest at the rate aforesaid" (Hasleicood v. Consolidated Credit Co., 1890, 25 Q. B. D. 555). A term of this nature is not implied. Where there is a contract for the payment of money on a day certain, with interest at a fixed rate down to that day, there is no implied contract that interest will continue at the same rate if the money be not then paid. In the absence of an express contract to pay interest on an overdue instalment of the principal sum, interest is only recoverable by way of damages, and is iu general limited to four or five per cent. (Cook v. Fowler, 1874, L. R., 7 H. L. 27 ; In re Roberts, Goodchap v. Roberts, 1880, 14 Ch. D. 49; Goldstrom r. Tallennan, 1886, 18 Q. B. D. 1). When a Bill of Sale contains a covenant for payment by instalments, such instalments may represent principal only. By a Bill of Sale given to secure a sum of £500, with interest at 60 per cent., the grantor covenanted to pay " the principal sum aforesaid, together with the interest then due, by twelve equal monthly payments of £41 13s. 4d., until the whole of the said sum and interest shall be fully paid," and that in default of payment of any "instalment" the grantor would "pay interest thereon at the rate aforesaid frona the date when such instalment should become due until full pajanent thereof." The Divisional Court (Mathew and A. L. Smith, JJ.) held that the agreement to joay interest on an overdue " instalment " must be construed as an agreement to pay interest not only on the £41 13s. 4d. (part of the principal sum) but also on the interest payable along with it. Mathew, J., also expi'essed the opinion that the interest to be paid every month was £25, that is, interest on the whole principal sum. But the Court of Appeal reversed the judgment. They held that in the default clause the word " instalment " was applicable only to the aliquot ])art of the principal sum, and therefore that the Bill of Sale did not stipulate for interest on interest. They also held that a Bill of Sale may lawfully provide for the monthly payment of an equal sum for principal, and of diminishing sums for interest ; there being nothing to require that payment should bo made by equal sums representing both princijial and interest (Goldstrom v. Tallerinun, 1886, 18 Q. B. D., reversing 17 Q. B. D. 80). A Bill of Sale dated 30th November, 1885, was given to secure the repayment of £70 with interest at 60 per cent. The grantor agreed to pay the princi])id sum by the following instalments : viz., £6 on the last day of December, 1885, and the like sum on the last day of eveiy succeeding month until the last day of October, 1886, and the balance of the principal sum then remaining due, with interest at the rate aforesaid, on the last day of November, 1886. The Court of Appeal, affirming Cave, J., held that the Bill of Sale was not vitiated by the fact that the last instalment of principal would be not £6 but £10, the provision for equality of instalments not being obligatory but subject to variation (Ex parte Rawliiifjs, re Clearer, 1887, 18 i^. B. D. 489 ; cf. Simmons v. Wood-ward, post, p. 294, where a similar argument was rejected by the House of Lords). In the same case the grantor covenanted that he would, " so long as the principal sum of £70 or any part thereof shall remain unpaid at the time hereinbc^fore apjiointed for payment of the instalmeuits of th(! said principal sum, ])ay interest after tiie r.iti' aforesaitl upon tiie siiid liebt, or upon so much as shall for tiie time being STATUTORY FORM: COVENANT FOR PAYMENT. 298 remain unpaid." The Court held that this was not a stipulation Ogj,* g for interest upon interest. '' We think," said Fry, L. J; oj. j. I ' deliverinjif the judgment of the Court, "that the words 'said statutory debt ' refer only to the debt mentioned in immediate antecedence orm. — namely ' the principal sum of £70 or any jaart thereof ' — and consequently describe principal only : and it is to be observed that the contingency on which the covenant is made to operate is only in the event of delay in pajTnent of the principal sum or some part thereof, and that the covenant, there- fore, does not operate where there is delay or default in payment only of interest" (Ex parte Raiclingii, fnipra). This case probablv overrules Dre.-;.ser v. Townsend (1880. 81 L. T. J. 230), where A. L. Smith, J., held a Bill of Sale to be vitiated by a default clause in identical terms ; the word " debt " beincr construed to include principal and interest. The monthly instalments in Dresser v. Townsend appear to have consisted of interest as well as principal ; but this does not seem to affect the operation of the default claus(>. The case was decided before the decision of the Court of Appeal in Goldsfrom v. TaUerman, supra. A Bill of Sale was given to secure £30 with interest thereon at the rate of 60 per cent, per annum. The grantors agreed to pay " the principal sum aforesaid " by unequal monthly instalments, and on the day fixed for payment of the last instalment to pay "the interest which shall have accrued at the rate aforesaid upon the said principal sum ; and, in case default shall be made in Ijayment of any of the said instalments of the principal sum, the same shall, until payment, continue to bear interest at the rate aforesaid." The Court of Appeal, reversing the Divisional Court, held that the Bill of Sale was valid. The con- struction of the deed was held to be that no interest was to be paid until the day fixed for payment of the last instalment of principal ; that interest was payable only in respect of the principal sum from time to time outstanding; and that the words " the same " in the default clause referred to the unpaid instalment only, and not to the whole principal sum (Hasleicood v. Consolidated Credit Co., 1890, 25 Q. B. D. 55.5). A Bill of Sale was given to secure the payment of £150 and interest thereon at the rate of four per cent, per annum. The grantor agreed to pay the principal sum aforesaid, by equal yearly payments of £30, on 20th ilay, 1893, and on 20th May in each succeeding year until the whole of the principal and ititerest was fully paid ; and also to pay interest on the said sum of £150. at the rate of four per cent, per annum, by quarterly payments. The Court of Appeal held that the words of the covenant did not make the time for the ceasing of the payment of the instalments uncertain, and that, on the true construction of the deed, interest was payable only on the amount of principal from time to time remaining unpaid (Weardale Coal and Iron Co. i\ Hodson, 1894, 1 Q. B. 598). Again, the instalments may rejiresent interest only. A Bill of Sale was given to secure the sum of £50 and interest thereon at the rate of five per cent, per month. The covenant for payment was as follows : " And the mortgagor doth further agree and declare that he will duly pay to the mortgagee the principal sum aforesaid with the interest then due as follows, the sum of £2 10s. on 26th October, 1887, and the like sum of £2 10s. on the 26th of each and every succeeding month thereafter until 26th September, 1889 ; then the balance and interest as aforesaid is to be paid." The Court of Appeal held that the Jiill of Sale was good, that the monthly instalments consisted of interest onl}', and that the whole principal sum was to be repaid on the date last named. ■'It seems to me," said Lord Esher, M.R., "that the meaning is clearly this : that there is to be a loan of £50, and that no part of the principal is to l)e paid until the end of two years, interest at the rate of five per cent, per month being in the meantime paid. The monthly payments of £2 10s., when added up, do not correspond with the principal sum lent, but they exactly correspond with the interest at the sjiccifiod rate of five jier cent, per month '" 29-J- BILLS OF SALE ACT, 1S.S2. Sect. 9, tatut Fori (Edwards r. Marsion, 1891, 1 Q. B. 225). A case difficult to reconcile with this is Monson v. Milner (1892, 8 T. L. R. 447). p*"!!?^'-^' ^ Sill "* *^1^- elated March, 1889, was given as security for the payment of £250 and interest thereon, at the rate of 60 per cent, per annum. The grantors agreed to pay £12 10s. on 20th April next, and a like sum on the 20th of each succeeding month, and the whole balance on 20th March, 1890 ; " and in default of payment of the principal, or any instalment when due, to pay interest thereon at that rate until full payment." It was argued that this was a provision for payment of interest on interest, but Denman, J., held that the case was covered by Goldstrom v. TuUerman, ante, p. 292. If the case is correctly reported, the decision seems doubtful ; for, on the construction adopted in Edwards v. Marston, supra, the monthly instalments would appear to consist of interest only, and it is difficult to give any meaning to the words " any instalment when due," without involving a provision for interest upon interest. Again, the instalments may coniprise both principal and interest. A Bill of Sale given to secure the payment of £500, and interest at the rate of ninepence per month, contained a covenant to pay "the principal sum aforesaid, together with the interest then due, by monthly payments of £30 on the 18th day of every month, the first payment to be made" on a daj' named. It was arguetl that the Bill of Sale was bad, because " £500 does not divide equally into multiples of £30, and the last instalment would be less than £30" — an argument which obviously assumed that the instalments of £30 consisted of principal only. The House of Lords held that the provision for payment of instalments was in accordance with tlie form, and the objection could not prevail. Lord Halsbury, L. G., further exjjressed the opinion that the instalments included interest as well as principal, and that " the interest is an essential part of the instalments, according to the provisions both of the Act itself and of the form suggested in the Act to give eifect to the Bill of Sale." Lord Watson added that " there is nothing objectionable in the language of the Bill of Sale which does not arise from the parties having followed word for word the language which the Schedule prescribes" {Simmons v. Woodward, 1892, A. C. 100). A Bill of Sale given to secure the sum of £200, with interest thereon at the rate of six- ])ence in the pound per month, contained a covenant to pay " the principal sum aforesaid, together with the interest then due, by weekly laaymonts of £2 6s. 2d., the first of sucii payments to be made on a day named, and the like payment to be made on the Monday of each and every succeeding week until the whole be paid." It was contended that the weekly payments of £2 6s. 2d. would not work out into any definite sum, and were spread over an indefinite period. A'aughiin Williams, J., held the objection bad. " The statutory form," said the learned Judge, "contemplates that the principal sum, together with the interest then due, may be paid by equal instalments covering principal and interest, and the fact that it was decided in Goldstrom r. Tallcrman (ante, p. 292) that the instalment may be limited to principal does not sliow that the instalment may not cover princi])al and interest. It is quite true that the Bill of Sale does not on the face of it say how many instalments will be neccssarj' to satisfy the amounts secured; but the statutory form of Bill of Sale seems open to the same ■ objection " (Ex parte Hasiuck, re Bargen, 1893 [1894], 1 Q. B. 444). In this case the Bill of Sale contained no default clause ; but the learned Judge; expressed the o[)inion that if there had been a d(!fault clause, the Bill of Sale would probably have been Viad as reserving interest on interest. A Jiill of Sale given to secui'(> ])ayment of £10nant must be necessary for the niaintenani'C of the security created by the Bill oF Sale, and that they do not mean the maintenance of a sufficient security less than that agreed to be given. In this case the security given was that of a great number of articles of furniture liable to destruction or injury." " It was STATUTORY FORM : TERMS FOR MAINTENANCE OR DEFEASANCE. 297 ai'ijucd," said Frj', L. J., "that the maintenance of tlie security e__i. q involves only the maintenance of the grantee's title, but I cannot ' ' concur in this argument. The security is maintained only when statutory the subject matter of the charge, and the grantee's title to that ^orm. subject matter, are both preserved in as good plight and condition as at the date of the Bill of Sale." Again, in Seed v. Bradley (1894, 1 Q. B. 319), Kay, L. J., observed : " The words are to maintain, not the chattels, but the 'security,' and that the meaning of 'security' is larger than the subject of the security is shown by the collocation of the word ' defeasance.' ' Defeasance of the cliattels ' would be nonsense. 'Defeasance of the security' means of tlie 'mortgage security.' So 'maintenance' must mean 'maintenance of the mortgage security.' '' Different opinions have also been expressed with reference to the meaning of the word '' defeasance." In Consolidated Credit Co. v. Gotitiey (1885, 16 Q. B. D. 24) Day, J., said : " I find it difficult to interpret that word unless it means realisation. The word is not apt. but that is the best meaning I can put upon it." A. L. Smith, J., atrreed with Day, J., in thinking " that defeasance nieans getting rid of the deed : that is, doing something which will make it cease to be an operative investment." The learned Judges therefore held that clauses for the realisation of the securitj- by seizure and sale were terms for defeasance. In Blnihevg r. Becketf (188(3, 18 Q. B. D. 96) Lord Esher, M. R., expressed the opinion that a defeasance is something which defeats the operation of a deed, and " what is meant by a ' term for the defeasance of the security ' is in strictness a condition in the nature of a defeasance." Lindley, L. J., said : " What does the word ' defeasance' mean ? It is said that the sale of the goods is a defeasance of the security. I think that view is untenable. Defeasance, to my mind, means something in the nature of redemption. It does not mean something which puts an end to the grantor's ])ower to redeem." In Heseliine r. SiniJiiona (1892, 2 Q. B. 547) Kay, L. J., delivering the judgment of the Court, stated that an agreement by the grantee to exhaust other securities for the same debt before resorting to the Bill of Sale was not a term for defeasance. " It is argued," said the" learned Judge, " that if he did so, that would defeat this security to the extent of the payment so made. That is a complete misapplication of the word ' defeasance.' A debt is not defeated by being paid. A security is not defeated by payment of the debt. 'J'here is nothing in the alleged agreement which defeats anv of the provisions of this deed." Lastly, in Seed v. Bradley (1894, 1 Q. B. 319) Kay, L. J., observed that "' defeasance of the security ' means ' of the mortgage security.' " In some of the cases the phrase " terms for defeasance of the security " ap])ears to have been identified with the expression '' defeasance," as used in ScK'tion 10 of the Act of 1878, ante, p. 198. The consequence of this view appears to be that if a defeasance or term for defeasance agreed to by the jiarties is omitted from the Bill of Sale, the deed is void as not being in accord- ance with the statutory form ; whereas the omission of a condition or declaration of trust only avoids a Bill of Sale under Section 8, ante, p. 269. The cases on this subject, from Simpson v. Chariny Cmxs Bank (1886, 34 W. R. 568) down- wards, are summarised ante, pp. 217 to 221. The author has ventured to express the opinion that the attempted distinction between defeasance and condition and the identification of defeasance with terms for defeasance of the security are erroneous (see ante, pp. 221 to 224). The latter phrase implies that the deed is a security : i.e. a mortgage security. The most obvious illustration of a term for nuiintenance or defeasance of the security in this sense is a provision respecting the application of the policy moneys iii case the chattels are destroyed by fire. It may be ])rovi(led tliat the moneys shall be laid out in the purchase of other chattels, and that a new Bill of Sale shall lie executed assigning them to the grantee, or that the money shall be ajiplied in dischai-gini; rlic debt due on the 298 BILLS OF SALE ACT, 1882. Sect. 9, security. The former would be a provision for maintenance, the „ latter for defeasance. Again, a provision authorising the grantor Form. to sell or dispose of any of the chattels on condition of substituting others would be a provision at once for defeasance and for maintenance : for defeasance, because it released chattels from the security and enabled the grantor to assign them free from the incumbrance ; and for maintenance, because it contemplated that the mortgage security was not to be put an end to, but to continue in force over the substituted chattels. The decisions as to terms for maintenance or defeasance are most con- veniently arranged according to the subject matters with which the particular terms in question deal. In.^urance, Rent, and other Payjnenix. — An agreement by the grantor that he will " keep the chattels insured against fire in a stated sum, and will pay all premiums necessary for effecting and keeping up the said insurance, and will on demand produce to the grantee the j^olicy or policies of such insurance, and the recei])t for everv such pavment," is consistent with the form {Ex' parte Stanford, re Barber, 1886, "iT Q. B. D. 259; Watkit>:< r. Era),>>, 1887, 18 Q. B. D. 386). The addition of a proviso that " if default shall be made by the grantor in effecting or keeping up such insui-ance it shall be lawful for the grantee to insure and keep insured the chattels, and that all moneys expended by him for that purjjose, together with interest thereon at the rate of five per cent, per annum from the time of the same having been expended, shall, on demand, be repaid to him by the grantor, and until such repayment shall be a charge upon all the premises hereby mortgaged," does not avoid the Bill of Sale unless a power of seizure is attached to it {Ex parte Stanford, fiupro ; see post, p. 299). So, an agreement that on the grantor's default the grantee may " beei3 on foot the said insurance, and charge the cost thereof, and interest at the rate of 20 per cent, jier annum, to the grantor, and the same shall be considered as included in this security," is good (Goldstrom v. Tallerman, 1886, 18 Q. B. D. 1). A covenant to insure may be followed by an express provision respecting the application of the insui-ance money (see ante, p. 297). By The Convej'ancing Act, 1881, Section 23, it is provided: "(3) All money received on an insurance effected under the mortgage deed or under this Act shall, if the mortgagee so requires, be applied by the mortgagor in making good the loss or damage in respect of which the money is i-eceived. (4) Without prejudice to any obliga- tion to the contrary imposed by law, or by si)ecial contract, a mortgagee may require that all money received on an insurance be applied in or towards discharge of the money due under his mortgage." But it has not been decided whether these provisions now apply to a Bill of Sale or are excluded by the requirement of the statutory form that terms agreed to as to insurance are to bo inserted in the deed. If the Conveyancing Act does not apply the case would fall within the authority of Lcei^ v.'Whitehy (1866, L. R., 2 Ecj. 143). In that case a Bill of Sale of machinery contained a covenant by the mortgagor to insure, but no ])rovision that in case of fire the policy moneys should be applied in restoration of the premises or in liquidation of the mortgage debt. The macliinffiy was burnt, and the mortgagors became bankrupt. Kindersley, A'. ('., decided that no covenant for tlic ;\|iiiliciiricni of rlic policy moneys could be im])lied, and that the mortgagee liad no claim tu ilic lienefit of the policy as against the nu)rtgagor or his assignees. An agrcemc'iit by the grantor " to pay the rent, rates, and taxes of any messuage or })remiseK wherein the assigned chattels may be" is a term for maintenance (Colilstrom r. Tailerindn, 12th XoveTiilier, 188(5, 18 Q. B. T). 1 ; a siniilai' (jiiestion was argued but not decided in Bliribenj r. I'eckctt, 27th ()c-tober, 188(), 18 Q. B. D. 96, where tlic wdiiIh were "to p;iy nil rates, taxes, and outgoings to become due and i)iiy:il)lr in respect of the premises"). Payments by tlie STATUTORY FORM: TERMS FOR MAINTENANCE OR DEFEASANCE. 299 uiiuitL-e iu respect of rent, rates, and taxes maj' lawfully be ge^t. 9 charj?ed on the chattels so long as there is no power of seizure ^^ . .^ attached. Thus, an aj:troin r. TaUeniuin, supra). It should be noted that premiums and other payments may be made repayable to the grantee on demand {GokUtrotn v. Tallerman, supra). But if such payments are made recoverable by seizure the Bill of Sale is bad, as contravening the provisions of Section 7, ante. Thus, where it was provided that the payments should be charged on the goods, " and be recoverable in the same manner as the principal )>ioneijs and interest secured by the Bill of Sale," the Bill of Sale was held void ; the effect being to confer a power of seizure on default in payment of such sums, and there being nothing to show that this was necessary to the maintenance of the securitv (Bianclti r. Offord, 1886, 17 Q. B. D. 48-1; Real and Personal Adrance Cu. r. Chars, 1888, 20 Q. B. D. 304). A Bill of Sale provided that if the grantee made such payments he should charge the amount to the grantor and all expenses to which he might be put, which said sums should be added to and form part of the security. The Divisional Court (Cave and A. L. Smith, JJ.) held that, even if the expenses were restrictedfto those incurred relative to the payments, the "'addition, to the security" conferred a power of seizure for them, and that tJie Bill of Sale was void (Macey r. (Gilbert, 1888, 57 L. J., Q. B. 461 ). A Bill of Sale contained a stipulation that the grantor should insure the chattels and pay the iiremiunis, and that in case of default the grantee might keep up the insurance, and that all money expended for that purpose should be repaid on demand, and should be a charge on the chattels in the mean- time. The deed also contained a power of seizure following the language of Section 7, Sub-section 1 {ante, p. 259), and concluded with the statutory proviso. The Court of Appeal held that the power of seizure must be construed to be confined to default in payment of the principal and interest, and that the Bill of Sale complied with the statutory form. Loi-d Herschell observed : "If the words ' tlie sum or sums of monej- thereby secured ' in the Act of Parliament are limited to the moneys advanced on the security of the Bill of Sale and interest thereon, here the words "the sum or sums of money hereby secured ' must surely have the same meaning, especially in a case where it is obvious that the Bill of Sale must have been framed with reference to the Act of Parliament, and the words copied from the Act." Kay, L. J., added that the decision in Real and Personal Advance Co. v. Clears, supra, goes to the very verge of technicality. Macey v. Gilbert, supra, does not seem to have been cited {Briggs v. Pike, 1892, 61 L. J., y. B. 418). The grantor agreed to jiay rent, rates, taxes, assessments, and outgoings wliicli ought to be paid by the tenant or occupier, to take proper receipts for such pay- ments, and on demand in writing to produce to the grantees or their tluthorised agents the receipts for every such payment. There was no express power of .seizure. The Divisional Court (Mathew and A. L. Smith, JJ.) held that the Bill of Sale was not avoided by the omission of the statutory qualification " without reasonable excuse " contained iu Section 7, Sub-section 4. . " This covenant," said A. L. Smith, J., " is for the nmintenance of the security, and although it is absolute, yet the grantees cannot seize for non-production of receipts, unless no lawful excuse for their non-]iroduction exists; that. 1 think, is its true construc- tion" {Turner r. Culpnn, 23r(l January. 1888. 36 W. K. 27 S ■ cf. A. L. Smith, J., in Topleu r. C execution of these jiresents, in a greater degree than they would (h-teriorate l)y reasonable use and wear thereof, and will, whenever any of the said mpra, were overruled by Thomas v. Kelly (1888, 13 App. Ca. 506; cmte, p. 285), that the covenant amounted to an assign- ment of after-acquired property not described in the schedule, and that such an assignment avoided a Bill of Sale except only in the case of articles within Section 6, Sub-section 2, ante. As to the true relation between that Sub-section and Sections 4 and 5 see notes ante, pp. 250, 255. Lopes and Kay, L.JJ., held that Thomas v. Kelly was easily distinguishable, and that the term was a term for maintenance of the security in accordance with the form. Where chattels are substituted under a covenant for reinstatement, the grantee seems to take no interest except as against the grantor (see Section 5, ante). But as regards any articles which come within the saving of Section 6, Sub-section 2, the grantee's equitable title would be protected. In either case it would seem that an agreement by the grantor to execute a new Bill of Sale assigning the substituted chattels, or conferring on the grantee a power of attorney to exectite a new Bill of Sale for that purpose (as in Masse y v. Sladen, 1868, L. R., 4 Ex. 13) would be good. But this has not been decided. An agreement to keep the chattels in good and substantial repair and in perfect working order may be followed by a power for the grantee on default " to repair and keep in repair the same, and to put the same in perfect working order, and to enter upon the premises on which the chattels may be for that ]mrpose, and that all moneys expended by the grantee for that purpose, "with interest at a fixed rate from the time of the same having been expended, shall, on demand, be repaid to the grantee by the grantor, and until such repayment shall be a charge upon the chattels" {Topley v. Corsbie, 1888, 20 Q. B. D. 350). But the Bill of Sale would be bad if sums so paid were made recoverable by seizure (see ante. p. 299). Covenant for further Assurance. — A covenant for further assiu'ance was held by the Court of Appeal, affirming Cave, J., to be one for the maintenance of the security, and free from objection {Ex parte Raivlinfjs, re Clearer, 1887, 18 Q. B. D. 489). In this case the form of covenant was : " And that the said mortgagor, and every other person or persons claiming by or through the said mortgagor any interest in the said chattels and things, or any of them, will at all times, at the costs of the mortgagor, execute and do all such assurances and things for the further and better assuring all or any of the said chattels and things unto the mortgagees, and enabling them to obtain possession of the same as may by them be lawfully required." Prior to this case Mathew and A. L. Smith, JJ., held that a covenant for further assurance by the mortgagor "and every other person claiming any interest" in the chattels vitiated the Bill of Sale, the covenant not being limited to persons claiming under the grantor, and leaving doubtful the extent of the obligation contracted bv the mortgagor under it {Liverpool Commercial Invest- ment Society v. Richard'son, 21st April, 1886, 2 T. L. R. 602 ; 55 L. J., Q. B. 455 ")• 'i'his decision was followed by Cave, J., in an unreported case, and was ilistinguished by the same learned Judge in K r parte Raiclings (!)tli July, 30-2 BILLS OF SALE ACT, 1882. Sect. 9, 1886, 55 L. J., Q. B. 455). The appeal in Ex parte Raidiiigs was argued on 11th August, but judgment was reserved. In Statutory Blaiherg v. Beckett (27th October, 1886, 18 Q. B. D. 96) the validity J? orni. qJ ^ gjji qJ Sale containing a covenant for further assurance by the grantor '' and every other person claiming any interest in the chattels " was argued in the Court of Appeal, but no opinion was expressed on this point. The judgment in E.v parte Raidings was delivered by Fry, L. J., on 26th January, 1887, but contained no clear approval or disapproval of the Liverpool case. The Lord Justice only observed : " It was contended that the covenant for further assurance at the cost of the mortgagor was in excess of the statutory form. But in our opinion such a covenant is one for the maintenance of the security, and is, consequently, free from objection." In a more recent case A. L. Smith, J., at chambers, indorsed the summons with a statement that the Liverpool case had been overruled by the Court of Appeal in Ex parte Ra.uiinga, supra. It was argued befoi'e the Divisional Court that that case was distinguishable from Ex parte Rawlingt!, and should still be followed. The Court (Stephens and Wills, JJ.) held that " the Liverpool case was weakened if not overruled. If this covenant went beyond the regular covenant for further assurance, it did not go beyond the form given in The Bills of Sale Act, 1882, which allowed the insertion of terms for the maintenance of the security. At any rate, it was not a case for interfering by injunction " to restrain a sale {Sedgwick v. HilUer, 22nd July, 1887, 31 Sol. J. 661). Foicer to Seize and Sell. — An express power to enter and seize the chattels is one for the maintenance of the security. Thus, an express power to seize for any of the causes specified in Section 7, but for no other causes whatever, and " for that purpose to break open the doors and windows of the premises where the chattels might be," was held not to avoid the deed (Ex parte Official Receiver, re Morritt, 1886, 18 Q. B. D. 222 ; followed in Lumleij v. Siiumon)<, 1887, 34 Ch. D. 698). Such a licence to use force and break into the dwelling-house or premises where the chattels may be is probably void as a licence to commit an offence against the Statute 5 Rich. II. c. 8 {Edwick r. Han-kes, 1881, 18 Ch. D. 199). These cases must probably be taken to overrule on this point an earlier case where Brett, M. R., and Fry, L. J., expressed the opinion (Bowen, L. J., doubting) that an express power to seize and sell on default in payment by implication (excluded the provisions of Section 13, and therefore avoided the Bill of Sale (Hetheriiigton r. Groomc, 1884, 13 Q. B. 1). 789). The provisions of The Conveyancing Act, 1881, as to a mortgngee's power of sale are not incorporated in the form {Calvert v. Thomas', 1887, 19 Q. B. D. 204 ; see ante, j). 59). But a clause excluding the operation of Section 20 of The Conveyancing Act, 1881 , inserted in the erroneous belief that Section 19 of that Act is incorporated in the form, was held not to vitiate the Bill of. Sale; it is merely inoperative and siipci'tluoiis (7'^./' parte Official Receiver, re Morritt, 188(), 18 Q. B. D. 222). '. . . . An express power of sale may be iiiserti^l in a Bill of Sale as a tiirni for maintenance of the security {cf. Day, J., in Lyou v. Morri.^, 1887, 19 Q. B. 1). 139). ri(jt for defeasance as was thought by the Divisional Court in Consolidated Credit Corporation v. (Joaney (1885, 16 Q. B. D. 24). This was settled in o))position to the opinion of Fry, L. J., who thought that " a power of sale is a collateral power, neither, strictly speaking, in maintenance ikh' in dciVnsnncc of the security" {Ex parte Official Receiver, re Morritt, 1886, LS (). \',. I). 222). Tims, an agreement that it shall be lawful for the nu)rtgagees, "after the expiration of live clear days from the day of seizing or taking ])ossession, to remove, sell, and dispose of the same or any part thereof for such ]tric(> or jii-ices as can rciisoniibly be obtained, and either by public auction or by private contract," lias been iicld Id lie good ( /.;, parte Rairlings, re Cleaver, 1887, 18 (^ B. 1). 489). STATUTORY FORM : TERMS FOR MAINTENANCE OR DEFEASANCE. ^303 A power for the orniiitee to sell the said chattels and things by ggg^^ g private treaty or public auction on or off the premises is good >, * (Bourne v. Wall, 1H91, (J-t L. T. 530). The repeated use of the p "^^^"^'^ words '^ necensary for maintaining the security" in this case is very apt to mislead. A power of sale carries with it implied trusts of the proceeds of sale, but express trusts may be inserted in a Bill of Sale if they do not differ from the trusts which would be implied, or substantially alter the rights of the parties (/•;,f parfc Bawling^, re Clcnvev, 20th January, 1887, 18 Q. B. D. 489). Thus, a declaration has been supported enabling the grantee to retain out of the sale uioneys the principal sum. or so much thereof as might for the time being remain unpaid, and the interest then due, together with all costs, charges, payments, and e.vpenses incurred or sustained in and about entering upon the grantor's premises, and in discharging any distress, execution, or other incumbrance on the chattels assigned, aud seizing, taking, retaining, and keeping possession thereof, and in and about the carriage, removal, warehousing, valuation, or sale thereof (including the cost of inventories, catalogues, or advertising), and to pay the surplus to the mortgagor {E.v parte Ruidimj!', re Cleaver, 1887, 18 Q. B. D. 489, following E.c parte Official Receiver, re Morritt, ibid. 222, where identical trusts were declai-ed). So, a provision enabling the grantee to pay himself his costs and expenses on a sale, aud any costs which he might properly incur in defending and maintaining his rights under the securitv, is good (Liniiley v. Simmons, 11th February, 1887, 34 Ch. D. 698). A power of sale authorising the grantees to retain their commission as auctioneers out of the proceeds of sale vitiates a Bill of Sale, being a provision, not for maintaining the security, but for obtaining for the grantees, in addition to the security, their trade profits as auctioneers for the sale — an advantage \viiich they would not have had if the statutory foi'm had been followed {Fnrber v. Cobb, 8th March, 1887, 18 Q. B. D. 494). A provision that the mortgagee should, out of the moneys to arise from any such sale, in the first place pay " the expenses attending such sale, or otherwise incurred in relation to this security," vitiates a Bill of Sale, because these words would include expenses relating in any way to the security, even those incurred before the execution of the Bill of Sale (Cnlrerf v. Thoma.-^. 14th June, 1887, 19 Q. B. D. 204). A proviso that " for the purposes of any such sale as aforesaid, or for preserving the security intended to be hereby created, or for any other purjiosc whatsoever," the grantee might '"at any time during the subsistence of the security affix such bills and placards having reference to the said chattels and things as he may think fit on any premises for the time being in the occupation of the grantor," was held to avoid the Bill of Sale, being clearly not a covenant for maintenance (Bardell v. Daykin, 22nd March, 1887, 3 T. L. R. 526). A power to sell the goods, "or to have them valued, and to purchase them at such valuation, and receive the moneys to arise from such valuation," is not for maintenance of the security, and vitiates a Bill of Sale (Lyon v. Morris, 30th Mnrt-h, 1887, 19 Q. B. D. 139). A power of sale which provides that " upon any such sale the purchaser shall not be bound to see or inquire whether any such default has been made as aforesaid " avoids the Bill of Sale. It is not a clause for maintenance or defeasance, and alters to the prejudice of the grantor the legal rights which the Act and the form were intended to secure to him (Blaibery r. Pari^ons, 1886, 17 Q. B. D. 336; Blaibery v. Beckett, 27th October, 1886, 18 Q. B. D. 96). A provision that '" the receipt or receipts of the said mortgagee should be a sufficient discharge to all and every ])urchasor or purchasers thereof, who should not l)c re(piired to see to the apiilicatioii thereof by the said mortgagee," is bad. 304 BILLS OF SALE ACT, LSSi Sect. 9, as substantially altering the relation between grantor and grantee (Gihhs r. Parsons, 14th June, 1887, L. J., N. C. 96). htatutory j^ stipulation which does not operate until after the power of sale b oriii. j^g^g ijggj^ exercised is not a term for maintenance (Lord Esher, M. R., in Bldiberg v. Beckett, aupra). Thus, a stipulation that "as soon as all sums secured by the Bill of Sale were fully paid and satisfied by payment or sale of the said goods or otherwise, the said mortgagees would, at the request and cost of the said mortgagor, give a receijjt in full of all demands under or in respect of the premises, and indorse a copy thereof on the Bill of Sale, but the Bill of Sale, and any document signed by the said mortgagor or any other person in relation to the said loan, should remain in the custody and be the propertj'^ of the said mortgagee," was held to be fatal to a Bill of Sale, because it substantially altered the rights of the parties (Watson v. StricMand, 1887, 19 Q. B. D. 391, ante p. 300). Terms Necessary for Maintaining the Security. — The provisions of Section 7, ante, have a very important bearing on the statutory form. While the form permits the insertion of " terms agreed to for the maintenance or defeasance of the security," Section 7 only sanctions seizure for certain speciKed causes, including default in the performance of " any covenant or agreement contained in the Bill of Sale, and necessary for maintaining the security." Consequently, if a power to seize is attached to default in performance of any covenant which is not necessary for maintaining the security the Bill of Sale contravenes the provisions of Section 7, and is void as departing from the statutory form (see ante, p. 263 ; and cf. the judgment of A. L. Smith, J., in Topley v. Corshie, 1888, 20 Q. B. D. 350). The decisions on the questions whether particular covenants are necessary or not within the meaning of Section 7, Sub-section 1, and of the statutory form are far from satisfactory. One or two points of general application may, however, now be regarded as settled. (1) If powers of seizure are contained in a Bill of Sale which are wider than is permitted hj Section 7, they are not controlled or limited by the statutory proviso that the chattels shall not be liable to seizure for any cause other than those specified in Section 7 (Furber v. Cobb, 1887, 18 Q. B. D. 494; see post, p. 308). (2) If a covenant is not necessary for the maintenance of the security, it cannot bo made so by the agreement of the parties. " I concur with Bowen, L. J.," said Sir James Hannen, '' iji thinking that the fact that the parties have agreed that this covenant is necessary for the maintenance of the security does iu)t make it so, and that it is in each case incumbent on the Court to decide whether the particular covenant impeached is or is not necessary for the maintenance of the security " (Fiirber v. Cobb, 1887, 18 Q. B. U. 494). Accordingly, if a Bill of Sale confers power to seize on breach of several covenants which are declared and agreed to be necessary for maintaining the security, the Bill of Sale will be void if any one of such covenants is not necessary. (3) " If the whole money secured is made payable upon the breach of a condition, and there; is power to seize on the money becoming jiayable, it is the same thing as if the power to seize were directly attached to the breach of the condition " (Lord Coleridge, C. J., in Barr v. Kingsford, 1887, 56 L. T. 861, stating the effect of Davis v. Burton, 1883, 11 Q. B. D. 537). Whether a power of seizure is or is not attached to a particular coveiiant is a question of construction. In Hammond v. Hocking (1884, 12 Q. B. D. 291) a Bill of Sale cf)ntained an agreement by the grantor to pay all premiums necessary for insuring and keeping insured the chattels against loss by fire, and forthwith after (•veiy payment in r(;s))ect of such insurance to ^iroduce aTul, if retpiired, d(>Hv(M' 1o th(^ grantee the receipt or voucher for t\\v same. It was also agreed that, subject to tlie ju-ovisions of The iJills of Sale Act, 1882, the chattels niiglit be seized by STATUTORY FORM : TERMS NECESSARY FOR MAINTENANCE. 305 the grantee if the grantor should make default, inter alia, in the gggj^ g performance of any coveiumt or agreement on his part therein con- ' _' tained. It was argued that the chattels were made liable to seizure ^ ^ ^^^ for breach of the covenant to produce and deliver receipts for orm. premiums. Cave, J., seems to have thought that this was so, but that the term in question was necessary for maintenance ; but the judgment of A. L. Smith, J., is consistent with the view that no power to seize was attached to the covenant. It is conceived that tliis is the right construction of the deed. The power to seize being qualified by the words " subject to the provisions of the Act," the grantee would be entitled to seize for breach of that covenant if it were necessary for maintaining the security, but not otherwise. The question of necessity might thus arise in any action whei-e the grantee relied upon the breach as entitling him to immediate possession, but could not affect the question whether the Bill of Sale was in accordance with the statutory form or not (see ante, p. 263). In Ex parte Pope, re Pavton (1889, 60 L. T. 428), a Bill of Sale contained several specific covenants, followed by a proviso that the chattels should be liable to seizure in certain events, identical with those enumerated in Section 7, ante. This was followed by a second proviso that the chattels and things should be " held and possessed by the mortgagor without any let or hindrance from the mortgagee until the same shall be taken possession of by the mortgagee in consequence of the breach of any of the covenants herein- before contained, and that the same should not be liable to be taken possession of" for any cause other than those specified in Section 7. Cave, J., though observing that the last proviso gave no greater power to seize than is allowed by Section 7, went on to express the opinion that the covenants objected to were necessary for maintaining the sectirity — a question which could only be material if there were power to seize. Charles, J., expressed the opinion that the Bill of Sale contained no powers to seize for matters other than those for which seizure is allowed by the Statute, and it is submitted that this is the correct construction. In Weardale Coal and Iron Co. v. Hodson (189-4, 1 Q. B. 598) a Bill of Sale contained a covenant to produce to the grantee upon demand in writing the last receipts for rent, rates, and taxes. It was then provided that the chattels should not be liable to seizure for anj' cause other than those specified in Section 7, which were set out verbatim. Lastly, it provided " that if the said chattels and things therebj- assigned %hould be seized or taken possession of by the grantee in consequence of the breach of any of the covenants therein contained," the grantee should be at liberty to remove and sell at the expiration of five clear days from seizure. It was contended that the second proviso gave a power of seizure for non-production of receipts, thus exceeding the provisions of Section 7, which contains the words " without reasonable excuse." The Court of Appeal held that the covenant must be read with the proviso which immediately followed it, and that the proviso as to seizure for breach of any of the covenants referred to the covenant as so qualified. Consequently, a power of seizure was not attached to the unqualified covenant, and the Bill of Sale was good. It is impossible to reconcile all the decisions or reported expressions of opinion as to terms which are necessary for maintaining the security. It should be observed, however, that one or two of the earlier cases seem to have been decided under the impression that a Bill of Sale varying or enlarging the specific powers of seizure conferred by Section 7 was necessarily void. Thus, in Davis v. Burton (1883, 11 Q. B. D. 537, affirming 10 Q. B. D. 414), it was held that power to seize for causes not included in Section 7 vitiated a Bill of Sale ; and, in particular, that a power to seize upon failui-e to comply with a demand "in writing or othencise" for production of receipts for rent, rates, and taxes, is '' impliedly forbidden " by that Section, which imports a demand in writing. It X 306 BILLS OF SALE ACT, 1882. Sect. 9, is conceived that the law woukl not now be stated so rigorously, and that such a covenant might in special circumstances be admitted to btatutory ^^ necessary for maintaining the security. Again, in E,r parte iorm. pgarce, re Williams (1883, 25 Ch. D. 656), Bacon, C. J., held a Bill of Sale void because it empowered the grantee to seize (1) "If the grantor shall do or suffer anything whereby he shall render himself liable to become a bankrupt," instead of "shall become a bankrupt," as in Section 7, Sub-section 2; and (2) " If the grantor shall remove or suffer the said chattels to be removed," the word "fraudulently" in Section 7, Sub-section 3, being omitted. This case was decided on the authority of Davis v. Burton, supra, and on the ground of the discrepancy between the language of the covenants and the language of Section 7. But there is later authority by which identical covenants have been held to be necessary for maintenance. There are also one or two early cases where it seems to have been supposed that powers of seizure wider than permitted by Section 7, though defective on that ground, may be cvired by reference to the final proviso. Thus, in Ftirher v. Abreij (1883, 1 C. & E. 186), a covenant in a Bill of Sale to produce and show to the mortgagee on demand in writing the receipts for rent, rates, and taxes (the words "without reasonable excuse" being omitted), was agreed to be necessary for maintenance, and an express power to seize was attached to it. Watkin Williams, J., upheld the Bill of Sale on the ground that "the final proviso must be read in connection with the other covenants, and an absolute covenant must be read with the qualification imposed by that ])roviso." But this is certainly not the law; such a Bill of Sale can only be supported if the covenant in question is in fact necessary, though Sir J. Hannen was disposed to think that a covenant in identical terms maj'^ be necessary {Furber v. Cobb, 1887, 18 Q. B. D. 494; post, p. 307). Again, in Duff v. Valentine (1883, W. N. 225) a Bill of Sale containing a power to seize if the mortgagor " should not, without reasonable excuse, upon demand in writing, produce the policy of insurance or the receipt for the current premiums thereon," was held to be valid; Field, J., observing that " there might have been some difficulty in supijorting this Bill of Sale, but for the proviso at the end of it. I think, however, that that proviso gets rid of any difficulty." This reasoning would not now be used, but there is authority that the covenant in question may be necessary for maintenance. The cases may be most conveniently dealt with by relation to the several Sub-sections of Section 7, ante, p. 259. Variation of Sub-section 1. — The repayment of the sum or sums secured by the Bill of Sale means only of the principal sum secured and interest thereon. Accordingly, a power to seize on failure to repay sums paid by the grantee for rent &c. vitiates a Bill of Sale, there being nothing to show that such a stipulation is necessary for the maintenance of the security. " How," asked Fry, L. J., "can an agreement to pay 40 per cent, interest on the sums so paid for rent &c. — and if it is not paid, that the goods may immediately be seized — bo said to be necessary for the maintenance of the security P " {Real and Personal Advance Co. v. Clears, 1888, 20 (). 15. 1). 304; ;uid otluu' cases, ante, p. 299). Variation of Sub-section 2. — A power to seize " if the grantor shall do or suffer aiiy matter or thing whereby he shall become a bankrupt " was held to he justifiable because these words are in substance equivalent to " shall become a bankrupt." " As to thi- power to seize," said Cave, J., " though some unnecessary woi'ds liave been used, \ am of opinion that it is in substance (M|uivalent to that vvliich is contained in Section 7 of the Act " {E.r jiartr Allaiii, re Mundaij, 1884, 14 Q. B. D. 43). So Cave, J., expressed the opinion that a covenant " that the rnortgagor shall not do anything whereby ho may boconii- a bankrupt " was neccsaai'y for maintaining the security {Km parte Pope, re I'a.iton, 1889, 8TATUT()I!V FolJ.M : TKRMS XKCESSARY FOR MAINTENANCE. 307 00 L. T. 428. But qun-re whether there was a power of seizure in ggg^. 9 tliiscaso: SCO ante, p. 305). A power to seize "if the borrower oj^j^j-^^q' should become bankrupt, or enter into liquidation for the benefit of p J^^ or compound with his creditors," was held by Lord Colerido:e, C. J., and Pollock, B., to vitiate a Bill of Sale, for composition with creditors is not necessarily equivalent to bankruptcy (Barr v. Kingtiford, 1887, 50 L. T. 861). A«:ain, a power to seize " if the mortsjagor shall take the benefit of any Bank- ruptcy Act " was held to vitiate a ISill of Sale, because it would include entering' into a statutory composition. The Court (Wills and Grantham, JJ.) disting-uished E.v parte Allam, supra, on the ground that the paraphrase in that case was equivalent to " becoming a bankrupt." Wills, J., observed that seizure, in the event of the grantor entering into a statutory composition, " is not provided for by Section 7 of the Act, and as the grantees thereby get more than bv Statute "they are entitled to, the Bill of Sale is bad" {Gilroy v. Boirey, 1888, '59 L. T. 223). Variation of Snh-iiection 6'.— A Bill of Sale contained a coveuant "not to remove the said chattels and things, or any of them, from the premises where they now are, or (with the mortgagees' consent) may hereafter be removed to, without the consent in writing of the mortgagees or one of them first had and obtained " (the word "fraudulently" being omitted), and a power of seizure on breach. Sir J. Hannen e.x-pressed the opinion that this covenant was necessary for main- taiuiug the security. " I think," said the learned Judge, " that the fixing a place where the goods are to remain is a part of the security agreed upon. This would be very obvious if it were the case of plate deposited at a banker's, but the validity of the covenant cannot depend upon the degree of safety afforded by the particular locality chosen for the custody of the goods. The grantees had a right to stipulate for this particular safeguard, that the goods should not be removed from the place where they were without their consent. The insurance against fire would probably be vitiated by their removal, and other circumstances might be imagined which would make it reasonable to insist on this provision " {Fitrher v. Cohh, 1887, 18 Q. B. D. 494). So Cave, J., expressed the opinion that a covenant that "the mortgagor will not, without consent, remove or suffer to be removed any of the chattels, or do or suffer any act ov thing by which they may be prejudiciallv affected," was necessary for maintenance of the security (/i- parte Po pel re Pa.vtun, 1889, 60 L. T.'428. But qinere whether there was any power to seize in this case ; see ante, p. 305). ' Variation of Sub-Kection 4.- Sir J. Hannen was disposed to think, though he (lid not express a definite opinion, that a power of seizure may be attached to a covenant to produce receipts for rent, rates, and taxes on demand in writing, omitting the words " without reasonable excuse " (Furber v. Cobh, 8th March, 1887, 18 Q. B. D. 494; rf. Fnrher v. Ahrey, ante, p. 306). But a power to seize on failure to produce "on demand" the last i-eceipts for rent, rates, and taxes, and the current premiums of insurance, has been held to vitiate a Bill of Sale. " I think," said Lord Coleridge, C. J., " that the covenant to produce on demand must be taken to mean on demand otherwise than in writing, and that a covenant to produce on demand otherwise than in writing cannot be reasonably held necessary for maintaining the security" {Barr v. Kings^ford, 28th March, 1887, 56 L. T.'861 ; the case of Fwrher v. Cobh, however, was not cited). Variation of Sub-section 5.— Watkin Williams, J., held that a Bill of Sale was not vitiated by a power to seize attached to a covenant that the mortgagor would not"])ermit or suffer himself to be sued for any debt or debts justly due and owing, nor permit or suffer any writ of elegit, fieri facias, &c., to be levied &c." against the chattels. "This clause," said the learned Judge, " means that he shall not |)ut himself in the position of a defaulting debtor, which would have the efferl nf iini.erilliiiLr the security " (Furber r. Abreg, 1883, 1 C. & E. 186 ; but 308 BILLS OF SALE ACT, 1882. Sect. 9, see ante, p. 306). Again, Cave, J., expressed the opinion that a ~ power to seize may be attached to a covenant " not to do anything a u cry -y^iippg^y the grantor shall have execution levied against the goods " l). (a) That is. Bill of Sale given by way of security for the payment of money (see note (y) to Section 3, ante, p. 24'8). (6) This Section places a downward limit on the amount of the consideration for which a Bill of Sale can legally be given. By Section 8 {ante, p. 269) the consideration must be truly set forth ; otherwise the Bill of Sale will be void in respect of the personal chattels comprised therein. The plaintiff applied to the defendant for a loan of £15 on the security of a Bill of Sale. The defendant referring to this Section refused to lend less than £30, but offered to lend that sum if the plaintiif would agree to repay £15 on demand and £15 by instalments. These terms were agreed to ; and a Bill of Sale was executed " in consideration of the sum of £30 now paid to the grantor," the grantor covenanting to pay " £15 on demand and the balance by equal monthly payments." The sura of £30 was actually paid ; but before the plaintiif left the defendant's office, the defendant, at the plaintiif's suggestion, demanded and received the £15. Default was made in payment of the instalments ; the defendant seized the goods, and the plaintiff brought an action of trespass for an illegal seizure, contending that the Bill of Sale was void under the present Section. On a special case stating the facts, the Court (Day and A. L. Smith, JJ.) declined to draw the iiiference that the transaction was a sham, and held tlic Bill of Sale to be valid {Daris v. Usher, 1884, 12 Q. B. D. 490). But it is to be observed that a covenant for payment on demand has since been held to be inconsistent with the statutory form (see ante, p. 291). (c) This moans void m toto, so that the grantor cannot be sued on any of the covenants contained in it (see ante, p. 281). An untrue statement of the consideration avoids a Bill of Sale oidy in respect of the personal chattels compi-iscd therein (see nnfr, pp. 269, 279). REMOVAL AND SALE OF CHATTELS. 313 13. All per.stniul chattels seized oi" of which possession Chattels not is taken aftei- the commencement of this Act, under oi' by removed virtue of any Bill of Sale (a) (whether registered before or or sold. after the commencement of this Act), shall remain on the premises where they were so seized or so taken possession of, and shall not be removed or sold until after the expiration of hye_clear days from the day they were so seized or so taken possession of (b). (a) That is, Bill of Sale given by way of security for the payment of money (see note (g) to Section 3, ante, p. 248). (b) This Section, coupled with Section 7, ante, and with the statutory form, confers by implication a power of sale on the expiration of iiv'e clear days after possession has been taken under the Bill of Sale (Lord Esher, M. R., and Lopes, L. J., Ex parte Official Receiver, re Morritt, 1886, 18 Q. B. D. 222 ; see ante, p. 59). The Section is intended for the benefit of the grantor only, the object of the five days' respite being to enable him to apply under Section 7, ante, to restrain removal and sale if the cause of seizui'e has ceased to exist. If the grantor permits the grantee to i-emove the goods before the five days have elapsed, the landlord of the grantor's premises has no cause of action against the grantee, either for loss of rent owing to the removal of goods on which he is entitled to distrain (Lane v. Tijler, 1887, 56 L. J., Q. B. 461), or for double value of the goods so removed under Statute 11 Geo. II. c. 19 {TomliJison v. Consolidated Credit Corporation, 1889, 24 Q. B. D. 135). A horse aud carriage were seized under a Bill of Sale in a public street or highway, and at once removed to premises in the occupation of the grantees, where they were detained for five clear days and then sold. In an action by the grantor it was held (1) that the seizure was lavrful ; and (2) that, if Section 13 was applicable to such a case, non-compliance with its terms could neither make the original seizure wrongful, nor give rise, in the absence of evidence of damage, to a cause of action for the irregularity {O'Neil v. City and County Finance Co., 1886, 17 Q. B. D. 234). The five clear days are reckoned exclusively of the day on which possession is taken, and also of the day on which the goods may first be lawfully removed or sold. As to the distinction between " days " and '" clear days " see Liffin v. Pitclier (1842, 1 Dowl., N. S. 767), and compare note (c) to Section 8, ante, p. 269. It would seem that there is nothing to exclude a Sunday from the computation of the five days (see Peacock v. The Queen, 1858, 4 C. B., N. S. 264; Davieti v. Davies, 1879, 4 L. R. Ir. 330). After the expiration of the five days the summary remedy under Section 7 is lost ; and the grantor cannot recover the goods in detinue upon tendering the amount due on the Bill of Sale, but must bring a suit for redemjition (Johntion r. Dipro.-'c, 1893, 1 Q. B. 512). Apart from proceedings to redeem, an injunction will not be granted to restrain a sale (Watkins v. Evans, 1887, 18 Q. B. D. 386). 14. A Bill of Sale to which this Act applies (a) shall Bin of Sale be no protection in respect of personal chattels included in protect such Bill of Sale which but for such Bill of Sale Avould have fimtteis 1 1- 1 1 X 1- X 1 J. X- 4 1 against poor been liable to distress under a warrant tor the recovery aiui of ta.ves and poor and other parochial rates (/;). nues'.'''''' 314 BILLS OF SALE ACT, 1882. (o) This Act applies to Bills of Sale given on or after 1st Sect. 14, November, 1882, by way of security for the payment of money. Xote (fl). Bills of Sale given on or after that date otherwise than in security for the payment of money are not affected by the Section, nor are Bills of Sale executed and registered before that date, whether given in security for the payment of money or not (see note (g) to Section 3, ante, p. 248). (b) A warrant of distress for poor and other parochial rates is in general applicable onl^- to the goods of the person rated or assessed, though under some local Acts the goods of lodgers &c. may be distrained (c/. Peppercorn v. Hofman, 1842, 9 M. & W. 618). The grantor of a Bdl of Sale, who was assessed to a general district rate under The Public Health Act, 1875, made default in payment. The Local Board, instead of proceeding by distress warrant under Section 256 of the Act, took proceedings against her in the County Court under Section 261, and recovered judgment and issued execution. The grantee claimed the goods. In an inter- pleader issue the Divisional Court (Day and Charles, JJ.) held that the Section did not render the goods liable to be seized in execution for rates. The learned Judges abstained from expressing any opinion on the question whether a general district rate comes within the meaning of the words " taxes and poor and other parochial rates" (Wimbledon LocnJ Board r. Fnderirood, 1892, 1 Q. B. 836). Repeal of 15. The Eighth (a) and the Twentieth (h) Sections of the orlaie Art! Pi'incipal Act, and also all other enactments contained in 187S. the Principal Act which are inconsistent with this Act (c) are repealed, but this repeal shall not att'ect the validity of anything done or suffered under the Principal Act before the commencement of this Act. (a) Section 8 of the Act of 1878 (ante, p. 188) is repealed only as regards Bills of Sale given after 1st November, 1882, in security for the payment of money (see note (;/) to Section 3 of this Act, ante, p. 248). The substituted enactment as to such Bills of Sale is Section 8, ante, p. 269. The repeal renders inoperative, as regards Bills of Sale in security for money, the definition of ajjparent possession in Section 4 of the Act of 1878, (iiitc, p. 150. (h) Section 20 of the Act of 1878 (ante, p. 240) is repealed only as regards Bills of Sale given after 1st November, 1882, in security for the payment of money (see note (g) to Section 3 of this Act, ante, p. 248). The result is, as regards such Bills of Sale, to restore the law as it existed before 1878, with a very im])ortaiit difference, whicli results from the provisions of Section 7, ante. The Act of l.S54did not affect the doctrine of reputed ownershij) ; and the registration of a Bill of Sale did not of itself take the goods out of the operation of the reputed ownership clause {Stanajield v. Cubitt, 1858, 27 L. J., Ch. 266; Badger r. Shaw, 1860, 29 L. J., Q. B. 73;" see also re David, 1855, 25 L. T. 188; re O'Connor, 1856, 27 L. T. 27 ; re Hamii, 1859, 10 Ir. Ch. 100). If the grantee had power under the deed to take possession at any time, the reputed ownership clause applied ; and the same was the case when the deed provided that the grantor should remain in possession until default should be made in ])aynient upon demand {Freahnei/ v. Carrich, 1857, 1 H. & N. 653, sub nam. Frcxhiicy o. Wellx, 26 L. J., Ex. 129; Hurnnbii v. Miller, 1858, 28 L. J., Q. B. 99; lieynolds v. Hall, 1859, 28 L. J., Ex. 257; Spademan v. Miller, 1862, 31 L. J., C. P. 309, 12 C. B., N. S. 659; Ex parte Harding, re Fairbrother, 1873, L. R., 15 Eq. 223). TiniH, in Er parte Edcy, re Cuthbertfon (1875, L. R., 19 Eq. 264), goods comprised REPEALS: REPUTED OWNERSHIP. 31." in ii Bill of Sale were held to pass to the trustee in bankruptcy of the grantor under the order and disposition clause, though the Sect. 15, Bill of Sale was duly registered. In E.r parie Montagu, re O'Brien Note (b). (1876, 1 Ch. D. 554), where the Bill of Sale was registered, it was assumed that if there had not been a sufficient demand to exclude the order and disposition clause the trustee would have been entitled notwithstanding registra- tion. In Ex parte National Deposit Bank, re Wills (1878, 26 W. R. 624), the Court of Appeal decided that, even if the description in the affidavit was sufficient, and the registration good, the trustee's title must prevail by reason of the reputed ownership of the grantor. It is true that there were one or two expressions of dissent; see in particular the judgments of Malins, Y. C, in Ashton v. Blackshair (1870, L. R., 9 Eq. 510) and Grawcour v. Salter (1881, 18 Ch. D. 30). It was also in some cases laid down that the test was whether or not the possession was " consistent with the terms of the deed" {Ashton v. Blackshaw, supra ; cf. Ex parte Cox, re Reed, 1875, 1 Ch. D. 302. E.r parte Homai>, re Broadhent, 1871, L. R., 12 Eq. 598, which was supposed to exemplify the same proposition, was explained in another sense in Ec parte Harding, re Fairhrother, supra). But this test is inconsistent with the Common Law authorities above referred to, at least in the case of ordinary mortgages. It would seem to have applied only to furniture &c. in the joint possession of husband and wife in questions between the trustee in bankruptcy of the husband and the wife or a trustee for her (see also Jarninn v. Woollotton, 1790, 3 T. R. 618; Joi/ r. Camphell, 1804, 1 Sch. & Lef. 328; Siuunons v. Edwards. 1847, 16 M. & W. 838). The law settled by the foregoing cases under the Act of 1854 was altogether altered by Section 20 of the Act of 1878, ante, p. 240. The repeal of that Section raises the (piestion hcjw far the law under the Act of 1854 is restored or varied. The question whether chattels comprised in a Bill of Sale duly registered under the Act of 1882 are within the order and disposition of the grantor was very fully considered in In re Stanley (1886, 17 L. R. Ir. 487). In that case the grantor became bankrupt within the time limited by the Bill of Sale for repayment, and before any default had been made. Upon the bankruptcy the grantee's right to take possession for the first time arose. The Court (Miller, J.) held that the chattels were not in the order and disposition of the grantor with the consent of the true owner. The ground of the decision was that the grantee of a Bill of Sale is now prohibited by the Statute from taking possession of the chattels except in certain specified events. Until one of such events has happened he is only a restricted owner incapable of taking or giving possession, and equally incapable of giving or withholding consent to the possession of the grantor. Nor can it be said that the grantee gives an initial consent to the grantor's possession by the act of executing the Bill of Sale, for until the Bill of Sale has actually iieen executed the grantee is not the true owner of the goods. There is no English decisicm as to the effect of the Act of 1882 on the doctrine of reputed ownership. In Ei- parte Sully, re Wallis (1885, 14 Q. B. D. 950), it seems to have been assumed that the order and disposition clause applies notwithstanding registration. The arguments which prevailed in In re Stanley, supra, were not presented to Cave, J. Moreover, the question arose in the bankruptcy of the husband of the grantor, and it does not appear from the report whether the grantee had become entitled to possession or not. The case of In re Stanley was cited before Cave, J., in Ex parte Slater, re Wehher (1891, 64 L. T. 426), and the learned Judge spoke of it as a case " which I liave some difficulty in tinderstanding. It purports to be founded on the dicta in two English cases; but, so far. at all events, as the head-note in the Irish case is 316 BILLS OF SALE ACT, 1882. concerned, the case of Ex parte Harding, re Fairhrother (1873, Sect. 15, L, R., 15 Eq. 223), shows that that head-note is contrary to the Note (b). settled principles of the law of bankruptcy." The decision in In re Stanleii does not seem to have been adopted, or even contro- verted, by any text writer, and it seems to be generally accepted that the former law is restored without any change. Nevertheless, the decision in In re Staiiley, though based on an imperfect view of the authorities, appears to the present writer to be substantially in accordance with the principles of the older cases. The reason why a redemise to the mortgagor, defeasible upon default in payment on demand, was not sufficient to prevent the goods from being in the order and disposition of the mortgagor was thus stated : " Where the mortgagee might at any time repossess himself of the goods upon giving twenty-four hours' notice, and does not choose to avail himself of that power, the goods are in substance in the possession of the bankrupt with the consent and permission of the true owner" (Williams, J., SjMckman v. Miller, su'pra). The mortgagee "had all the time from the execution of the Bill of Sale to within twenty -four hours of the bankruptcy to acquire possession of the goods by giving notice " (ihid., per Willes, J.). Even if the redemise were not terminable at the option of the mortgagee, and the mortgagor was in possession under the express terms of the Bill of Sale, the mortgagee was deemed to consent to the mortgagor's possession, whether the acquisition of the goods and the redemise were one transaction or were effected by different instruments. " The authorities," said Williams, J., " establish this — that the law will not allow a person who takes a Bill of Sale or mortgage of chattels to suffer the grantor or mortgagor to continue in the apparent ownership of them, without incurring the risk of their passing to his assignees in the event of a bankruptcy, and that he cannot prevent that effect by introducing into the deed a clause of redemise to the mortgagor" [Spademan v. Miller, supra). It seems clear that this reasoning does not apply to the statutory redemise under the Act of 1882. The grantee, being prohibited by law from taking- possession, except in certain events, cannot be said to consent to or permit the possession of the grantor before one of those events has happened. The incapacity to take possession does not arise from his own " unconscientious " act, as in the cases of Lingham v. Biggs (1797, 1 B. & P. 82) and Bryson v. Wylie (1783, 1 B. & P. 83 n), cited in Spaclimati v. Miller, supra. The grantee, there- fore, until his right to seize has arisen, appears to be no more able to consent than the trustee of a settlement who is in ignorance of the trust, or an infant during his infancy (hi re Mills's TrnMs, 1895, 2 Ch. 56-1). But if the grantee does not take possession when his right to seize has arisen, the goods may thenceforward be in the order and disposition of the grantor with his consent (cf. Clark v. Croivnshaw, 1832, 3 B. & Ad. 804). (c) Section 10 (ante, p. 309) expressly repeals Sub-section 1 of Section 10 of the Act of 1878; and Section 16, infra, expressly repeals part of Section 16 of the Act of 1878. of'reKiHto'ed 16. So much of the Sixteenth tSection of the Principal BiiisofSaie. Act US enacts tliat any pei-son shall be entitled at all reasonable times to search the I'eti'ister and every registei'ed Bill of Sale upon payment of One Sliilliiio- for every copy of a JJill of Sale inspected is hereby I'cpealed (a), and from and after the commencement of this Act any person shall be entitled at all T'easonable times to search the register, on payment of a fee of One Shilling, or such other fee as may INSPECTION OF REGISTER. 317 be prescribed, and subject to sucli regulations as may be Sect. 16. prescribed (h), and shall be entitled at all reasonable times to inspect, examine, and make extracts from any and every registered Bill of Sale without being required to make a "written application, or to specify any particulars in reference thereto, upon payment of One Shilling for each Bill of Sale inspected, and such payment shall be made by a judicatui'e stamp : Provided that the said extracts shall be limited to the dates of execution, registration, renewal of registration, and satisfaction, to the names, addresses, and occupations of the parties, to the amount of the consideration, and to any further prescribed particulars (r). («) See this Section, ante, p. 236. (b) The office hours of the Bills of Sale Department of the Central Office are from ten in the forenoon to four in the afternoon, except on Saturday and in the vacation, when the offices close at two in the afternoon (R. S. C, Order Ixiii., Rule 9). (c) By R. S. C, Order Ixi., Rule 23, " The Registrar of Bills of Sale shall, on a request in writing giving sufficient particulars, and on payment of the prescribed fee, cause a search to be made in the registers or indexes under his custody, and issue a certificate of the result of the search." An official search may also be made in the Registry of Bills of Sale under Section 2 of The Conveyancing Act, 1882. The rules under that Section and the relative forms are printed in Appendix, po.sf. By the Order as to Supreme Court Fees, 188-i, the following fees are payable for searches and certificates : — 114. On a request for a search and certificate pursuant to Order Ixi., Rule 23 5s. 115. If more than one name included in the same request, for each additional name ... ... ... ... ... ... ... 2s. 116. On a duplicate certificate, if not more than three folios ... ... Is. 117. For every additional folio .. ... ... ... ... ... 6d. 118. On every continuation search, if requested within fourteen days of any foi-mer search (the result to be endorsed on such certificate) ... ... ... ... ... ... ... ... Is. As to searches and inspection of abstracts filed in the local registries see note (c) to Section 11, ante, p. 312. The ])ublication of a correct copy of the register, which is a document open by law to public inspection, is privileged. An action will not lie for such publication, even in a " black list" or trade protection journal, without evidence of express malice (Senrlef v. Scarlett, 1892, 2 Q. B. 56). But a copy of or extract from the register may be libellous if accompanied by a defamatory addition, such as an implied statement that the Bill of Sale is still in force when it is in fact satisfied (Willinrns v. Smith, 1888, 22 Q. B. D. 13-4). Where the proprietors of several newspapers had employed skilled persons, at considerable labour and expense, to compile lists of registered Bills of Sale for publication, it was held that the proprietors of each newspaper were entitled to sue to restrain the infringement of copyright by a tradesmen's association, which reproduced a small part of the lists for circulation amongst its own members (Trades Auxiliary Co. v. Middlenhrough and District Tradesmen's Protection Association, 1889, 40 Ch. D. 425). 318 BILLS OF SALE ACT, 1882. Debentures 17. ISTotliing ill this Act (ii) shall apply to any debeii- ActnoUo tures (/>) issued by any mortgage, loan, or other incorporated apply- company (r), and secured upon the capital stock or goods, chattels, and effects of such company (c). (a) This Section was introduced in the House of Lords under the belief, then prevalent in the profession, that debentures were subject to the Act of 1878. It had been assumed by many Judges that they were. The Court of Appeal lias now decided that, according to the true construction of the Act of 1878, moi'tgages or charges for the registration of wliich provision had been made by The Conipanies Clauses Act, 1845, or The Companies Act, 1862, did not come within the scope of the Act of 1878 {In re Standard Manitfactiiriny Co., 1891, 1 Ch. 627). This somewhat summarily reasoned decision overturns many of the cases previously decided under the Acts, and renders the actual meaning and application of this Section very doubtful. If the decision in In re Standard Manufacturing Co., supra, is ever recon- sidered, it will be material to take the followin": circumstances into account : — (1) Several cases arose under the Act of 1854, in which the Courts might have held that mortgages or charges of incorporated companies were not within the Act. In Shears r. Jacol (1866, L. E., 1 C. P. 513) a Bill of Sale by a limited company was registered under the Act. An execution creditor contended that the affidavit was insufficient, because it did not describe the residence and occupation of the attesting witnesses ; but the Court held that directors who countersigned the seal were not attesting witnesses, and that the registration was good. The same point arose, and was similarly decided in Deffell v. White (1866, L. R., 2 C. P. 144), and in Deffell r. Miles (1866, 15 L. T. 293). In each of these cases the deed in question was a trust deed for the benefit of debenture- holders. In In re Marine Mansions Co. (1867, L. R., 4 Eq. 601) debentures had been issued which charged the land and other property of the company. In the winding-up of the company Wood, Y. C, held that, as to the furniture and chattels of the company, they were not void for want of registration, because a liquidator who acts not only for creditors, but for contributories and also for the company, was not one of the persons as against whom unregistered Bills of Sale were void under the Act. It was an obvious inference from these authorities that an unregistered deed by a limited company would be void as against an execution creditor; and the cases covered not only ordinary Bills" of Sale, but debentures and trust deeds for debenture -holders. (2) This mode of reasoning having been adopted by the Courts, the Act of 1878 contained no words to exclude tiie deeds of limited c<)m])anies from th(> scope of the Act. In In re Stoclinn Iron Furnace Co. (1879, 10 Ch. I). 335) Bacon, V. C, again observed that a litpudator was not within the Act of 1854; and the Court of Api)eal held that a mortgage containing an attornment clause granted by a limited company was not a Bill of Sale within that Act. In re Asphaltic Wood Pavement Co. (1883, 49 L. T. 159) Bacon, V. C, held that debentures creating a charge on the plant and stock-in-trade of the company were not void for non-i-egistration against the licpiidator of the com])any, because the term "liquidaticm" in Section 8 did not refer to the winding-up of a company. (3) The present Section was enacted, on the suggesti(m of Mr. F. B. Palmer and other members of the Bar, to ])revent debentures being wholly avoitled under the more stringent ])rovisions of the new Act. It was assumed that debentures as well as other (diarges of incorjjorated companies were Avithin the Act of 1878. (4) After the passing of the Act of 1882 Pearson, J., held that a Bill of Sale by a company must be as much within tiie mischief of the Act as a Bill of Sale by a jH-ivate individual, and that if Bills of Sale executed by companies generally were DEBENTURES OF INCORPORATED COMPANIES. 319 entirely out of the Act, Section 17 was absolutely unnecessary and useless (re Cunningham ^" Co., Attenborough'tt case, 1885, Sect. 17, 28 Ch. D. 682). Whei-e a company gave a mortgage of lands, and Note (a). in the same deed, but by a separate testatum, conveyed to the mortgagee " the plant, apparatus, machinery, &c.," on the premises, it was lield that this was a Bill of Sale as to the personal chattels, and void as not registered and not complying with the statutory form (/« re Bansha WouUen Mills Co., 1888, 21 L. R. Ir. 181 ; see also In re London and Lancashire Paper Mills Co., 1S88, 58 L. T., 789; ante, p. 175; and other cases in note (h), infra). (5) Registration under the Bills of Sale Acts is by no means identical in nature and effect with registration under the Companies Acts. Under the former, the mortgagee must register in a public registry for the protection of his security. Under the latter, tiie mortgagor company must keep a register of their charges for the information only of ci'editors and members of the company. (6) The consequences of non-registration in the two cases are entirely different. Under the Companies Acts, a mortgage is not avoided by non-registration, even if the mortgagee is a director or officer liable to a penalty for wilfully autliorising such omission (Wright c. Horton, 1887, 12 App. Ca. 371). (7) The existence of other provisions for registration is the main ground relied on in In re Standard Manufacturing Co. But a similar criterion with reference to transfers of ships or vessels has been twice rejected by the Court of Appeal (see ante, pp. 161, 162). (h) It should be noted that the Section does not expressly save Bills of Sale granted by incorporated companies. It was held by Pearson, J., that Bills of Sale by a company are as much within tlie mischief of tlie Act as Bills of Sale by a private individual, and that if Bills of Sale by companies generally were entirely out of the Act this Section is absolutely unnecessary and useless {re Cunning- ham 1^- Co., Attenborough's case, 1885, 28 Ch. D. 682). But see note (a), supra, as to the effect of the decision in In re Standard Manufacturing Co. (1891, 1 Ch. 627). Two methods have been adopted of creating a security on property by means of debentures : — (1) The debenture may itself directly create a right or charge in equity on the property of the company ; (2) There may be a " covering- deed," whereby the property is conveyed or assigned to trustees for debenture- holders, and debentures may be issued which purport to entitle the holders to the benefit of the trust deed. In BrocMehur.9t i\ Raihcay Printing Co. (188i, W. N. 70) there was an assignment in security of plant, machinery, stock-in-trade, &c., to a trustee for debenture-holders, which was registered as a Bill of Sale, but was not in the statutory form. Debentures were issued, containing an undertaking by the company to pay the bearer £100, subject, inter alia, to the following condition : — "The holders of the said debentures are entitled, pari ;ja.s.s(/, to the benefit of an indenture dated &c., and made between the company and a trustee for the debenture-holders, whereby all the property and rights of the company, both ]n"esent and future, are chai-ged with the payment of the said debentures." Execution was levied on the chattels of the company, and the goods were claimed both by the trustee and by a debenture-holder. As to the trustee's claim Field, J., held that the trust deed was not a debenture, and was clearly a Bill of Sale, and void for non-compliance with the Act. The report states that the decision was based on Sections 4 and 5, ante; but it seems that the deed must also have been void under Section 9, ante. As to the claim of tlie debenture- holder Field, J., held that the debentures passed 710 property in the goods; '"all that the debenture-holder has is the right to come in and take the benefit of a sale of the.sc goods by the trustee who, as between grantor and grantee, is the owner of thi'in under the assignment to him." It seems probable, however, 320 BILLS OF SALE ACT, 1882. that the debentures did create an equitable charge (see Cotton, Sect. 17, L. J., in Ross v. Army and Navy Hotel Co., infra), but this would Note (b). not alter the decision if the debentures came within the Act of 1878. By Section 8 of that Act they would be void for non- registration as against an execution creditor, " the exception in Section 17 not applying to the Act of 1878 " (Kay, J., in Ross v. Army and Navy Hotel Co., infra). In Ross V. Army and Navy Hotel Co. (1886, 3-4 Ch. D. 43) the question arose as between grantor and grantee, since the official liquidator is not in the position of an assignee in bankruptcy or an execution creditor (see cases cited, ante, p. 190). There was an unregistered trust deed. The debentures had a condition annexed that the holders were entitled to the benefit of an indenture, fully described, whereby, inter alia, certain specified chattels of the company were vested in trustees to secure jjayment of all moneys payable on the debentures. After the decision in Brocklehiirsfs case, supra, new debentures were issued to the holders of the original debentures, which purported to charge the amount due on the debentui-es upon the undertaking of the company and all its property, both real and personal, present and future. The new debentures were stated to be supplemental to the original bonds. The Court of Appeal (affirming Kay, J.) held that although the covering deed was void (as admitted on all hands) for want of form and for non-registration, the original debentures constituted a contract in equity to charge the money lent upon everj^thing comprised in the covering deed, and were therefore within the saving of Section 17. They also held that the supplemental debentures, which were issued in order to cure a supposed defect in the original issue, did not create a charge upon any property not comprised in the original debentures. In Jenkinson v. Brandley Mining Co. (1887, 19 Q. B. D. 568), an interpleader issue between an execution creditor and a debenture-holder, the debentures professed to be secured by a mortgage deed of even date. The mortgage deed was in form an ordinary mortgage of all the land, plant, machinery, fixtures, &c., of the company. It recited a sale of mining rights to the company, and a stipulation that part of the purchase money should be payable in debentures, which should form a charge upon the property described in i:ho schedule thereto; but it contained no trust for the benefit of the debenture-holders, and was not registered as a Bill of Sale. The debentures were in the form of bonds payable to bearer. They did not assume to pass the property of the company, but contained a clause that repayment was secured by an indenture of mortgage between the company and trustees for the debenture -holders, and by a declaration of trust by the mortgagees : the mortgage deed, however, was not identified by date or other particulars. The mortgage deed was admitted to be void for want of registration. The Court (Grove, .)., and Huddleston, B.) hold that the debentures were void as against an execution creditor. This deciision implies that the debentures came within the Act of 1878 ; and the Court distinguished Ross v. Army and Navy Hotel Co., supra, as a case applying only between grantor and grantee. Edmonds v. Blaina Furnaces Co. (1887, 36 Ch. D. 215) was a case between grantor and grantee. A memorandum of agreement between the company and nine several lenders named in a schedule, whereby the company covenanted to l)ay on a day named to each of the lenders the sujn advanced by him with interest, and as security for the payment thereof chargeil therevvitli all its undertaking, iiroperty, estate, and effects of every kind, was held to bo a debenture in the ordinary acc(^])tation of the term, and to come within the saving of Section 17. Chitty, J., observed that a debenture may consist of one document ; it is not necessary that there should be a serial issue of documents to constitute them debentures. His Lordship also observed that registration as a DEBENTURES OF INCORPOEATED COMPANIES. 321 Bill of Sale was not necessary, and was provided for under the Comimnies Acts ; but it seems probable that this observation was Sect. 17, intended orly to apply in cases between grantor and ^rantee. Note (b). In Levy v. Ahercorris Slate and Slab Co. (1887, 37 Ch. D. 260) — also a case between grantor and grantee — an agreement between the company and a lender, whereby the company agreed to issue debentures to the extent of £600, secured on all their capital, stock, goods, chattels, and effects, including UTicalled capital, both present and future, was held to be in effect a debenture, and within the saving of Section 17. Chitty, J., added that any document which either creates a debt or acknowledges it is a debenture. Tojiham v. Greenside Glazed Firebrick Co. (1887, 37 Ch. D. 281) was an interpleader summons between execution creditors and equitable mortgagees as to certain machinery. The machinery in question consisted of " excluded machinery " affixed to the surface of land belonging to a third party for the purpose of working beds of coal and fire-clay beneath, which belonged to the company. The company deposited the title deeds to the beds of coal and fire- clay with their bankers to secure the balance of their current account. By an accompanying memorandum they undertook to execute, when thereunto requested, a proper mortgage, with immediate power of sale, or such further security as might be necessary for the purpose of effectually transferring to any person or jjersons designated for that purpose, the legal estate in the property to which the security related. The memorandum did not contain any acknowledg- ment of any specific debt, nor any covenant or agreement for payment, except so far as the same was implied in the agreement to execute a legal mortgage. North, J., declined to hold that this memorandum was a debenture within the meaning of Section 17. He also held that the memorandum did not require registration, chiefly on the ground that the articles of machinery in question, being " excluded machinery " under Section 5 of the Act of 1878, were not personal chattels within the meaning of the Acts for any purpose whatever. As to this point see ante, p. 178. But it seems clear that even if the machinery in question had been " trade machinery," and a fortiori if it had been ordinary "fixtures" within the Act, the memorandum would not have required to bo registered if the machinery were in law aSixed to the beds of coal and fire-clay (see notes to Section 5 of the Act of 1878, ante, p. 172). If it were not so afiixed it would not be comprised in the mortgage at all. In Dehenture-holders of WeUted ^- Co. v. Swansea Bank, Limited (1889, 5 T. L. R. 332) — an interpleader issue between debenture-holders and an execution creditor — the document in question was a mortgage debenture for £'500 payable to bearer, and charged on the uncalled capital, sheds, plant, machinery, stock-in- trade, timber (cut and uncut), and effects of the company, and all its property, both present and future. Pollock, B., gave judgment for the debenture-holders, apparently on the ground that such debentures were not within the Bills of Sale Acts at all. " They had existed long before the Acts, and yet had not been expressly named in them ; and no one dreamed that a lawyer's ingenuity would class them with Bills of Sale He thought that to hold otherwise would be to sin against the spirit and words of the Act." Read v. Joannon (1890, 25 Q. B. D. 300) was also an interpleader issue between an execution creditor and the holder of a debenture for £1,500, which was expressed to charge by way of floating security the undertaking and all real and personal pi'operty then or at any time thereafter belonging to the com])any. The judge of the City of London Court held the d(>bcnture void for noTi-registration under the Act of 1878. On appeal, the Divisional Court (Lord Coleridge, C. J., and Wills, J.) held that the debentures of incorporated companies are not Bills of Sale, that they never were within the Act of 1878, and are expressly exempted from the operation of the Act of 1882. " So far as I am Y 322 BILLS OF SALE ACT, 1882. aware," said Lord Coleridge, C. J., " no case can be produced in Sect. 17, -which it has ever been held that a debenture of an incorporated Note (b). company — a perfectly well-known instrument — was a Bill of Sale within the Act of 1878 Even if debentures had originally been within the operation of the Act of 1878, Section 17 is quite sufficient to take them out of that operation, because Section 3 requires that the two Acts shall, so far as is consistent, be construed as one Act, so that the words of Section 17 ' nothing in this Act ' really mean that ' nothing in this Act or in the Principal Act ' shall apply to debentures." Wills, J., went on the further ground that if the debenture was a Bill of Sale it was a Bill of Sale by way of security only, " as to which there is no possibility of contending that Section 8 of the Principal Act has not been repealed. But if so, then the only enactment requiring a Bill of Sale of this description to be registered is Section 8 of the Act of 1882. But the moment that is conceded. Section 17 clearly applies." This reasoning, however, is not convincing, since the supposed concession ignores the possibility that Section 17 may limit the operation of the repealing Section. Up to this point, therefore, omitting the cases between grantor and grantee, there was a conflict of authority as to whether or not debentures were within the Act of 1878. On one side were BrocMehurst's case and Jenkinson' s case, in which debentures were actually held void against execution creditors. On the other side are Welsted §' Go. v. Swansea Bank and Read v. Joannon. The weight of reasoning seems to be on the former side. The question was brought to an issue in In re Standard Manufaciuring Co. (1891, 1 Ch. 627), a contest between execution creditors and debenture-holders. There were two sets of debentures. The first issue consisted of mortgage debentures for £50 each and interest charged upon the undertaking of the company and all its property, both present and future. The second issue consisted of debentures for £100 each and interest, charged by the company on all its present and future stock, goods, chattels, and eifects, and all its real property and interest in lands, and also all its present and future plant, machinery, stock (manufactured and unmanufactured), book and other debts, goodwill, and assets, and generallj^ all the present and future property, real and personal, and undertaking of the company. There was also a trust deed, collateral to the second series of debentures, but comprising leaseholds only. The execution creditors contended that the debentures, being unregistered, were void under the Act of 1882, or at least under the Act of 1878. The Court of Appeal (Lord Halsbury, L. C, and Bowen and Fry, L. J J.) held (1) That, as regards the Act of 1882, the debentures were expressly excepted from its operation by Section 17 ; and (2) That, as regards the Act of 1878, although the debentures were agreements by which a right in equity to a charge or security on personal chattels was conferred, nevertheless, on the true construction of the Act, mortgages or charges of any incorporated company, for the registration of which statutory provision had ali'eady been made by The Companies Clauses Act, 1845, or The Companies Act, 1862, are not Bills of Sale within the scope of The Bills of Sale Act, 1878. The Court referred to the following considerations as fortifying their opinion : — That debentures were not within the original mischief aimed at by the Acts of 1854 and 1878 ; that, being well-known mercantile instruments, they were not expressly named in the Act of 1878 ; and that the language of Sections 4, 8, 10, and 12 shows that the charges of incorporated companies were not actively present to the mind of the draftsman. This decision, therefore, ovei-rules BrocMehurst's case and Jcnlcinson's case as to debentures. But it takes a far wider range. It conflicts with these cases, and also with the former decision of the Court of Appeal in Ross r. Arynij and Navy Hotel Co., supra, as to tlui avoidance of tlu; trust deed ; and it renders irrelevant most of the reasoning in the cases above stated between grantor and grantee. DEBENTURES OF INCORPORATED COMPANIES. 323 In In re Hansard Union (1892, 8 T. L. R. 280), Lindley, L. J., observed that it was settled that the Bills of Sale Acts " did Sect. 17, not affect debentures at all, inasmuch as by the Companies Acts Note (h). other arrangements were made for registration" — an obiter dictum which is important as laying stress on the existence of other provisions for registration as the criterion of exclusion from the Acts. In Jarvis v. Jarvis (1893, 63 L. J., Ch. 10), a firm claimed to have an eqiiitable charge on machinery belonging to a limited company. On obtaining a loan from their bankers, the firm gave them a letter specifying the machinery, '' to which machinery we are entitled under a deed of charge or assignment from the comi)any," and undertaking to execute a proper charge upon the machinery as security. No deed of charge or assignment had in fact been made, and North, J., decided that the firm had no charge upon the machinery which they had assigned or could assign to the bankers. But the learned Judge proceeded to observe that, although as between the company and the firm the Bills of Sale Acts did not apply (citing In re Standard Manufacturing Co., supra), yet "upon a transfer of the charge to the bankers The Companies Clauses Consolidation Act of 1845 did not apply, and the necessary registration could only be procured by observing the formalities of the Bills of Sale Acts, which, therefore, was necessary." The learned Judge can hardly have intended to qualify the decision in In re Standard Manufacturing Co. ; but if a charge is altogether excepted from the provisions of the Bills of Sale Acts, it is difficult to see on what principle registration can become necessaiy by reason only of a transfer or assignment of it (see ante, p. 65). In In re Eoyal Marine Hotel Co. (1895, 1 Ir. R. 368), Porter, M. R., observed that the decision in In re Standard Manufacturing Co. might be a far-reaching decision, but that it was binding upon him, and that it was " unnecessary to expi'ess an opinion whether, if a mortgage given by a company included lands, registration under the Companies Act would be sufficient without registration under the Irish Registry Acts." This observation, however, was merely obiter. The question in the case related to a Bill of Sale dated in 1873, of which the registration had not been renewed ; and the learned Judge held that it was not void against the liquidator of the company, on the authority of In re Marine Mansions Co. and In re Asphaltic Wood Pavement Co., ante, p. 190. In Great Northern Railway Co. v. Coal Co-operative Societij, Limited (1895, 12 T. L. R. 30), debentures issued by a society registered under the Indastrial and Provident Societies Acts were held, by Vaughan Williams, J., to be void against the official receiver and liquidator in the winding ujj of the society. Two points were involved in this decision: — (1) The exception contained in Section 17 does not apply to such debentures, the society not being a company in any of the accepted legal meanings of that word. This appears to be obvious, though the omission of such societies niay have been due to inadvertence. (2) The next question was whether the debentures came within the Acts at all or not. The learned Judge distinguished In re Standard Mannfacturing Co. on the ground that the society was not one as to the securities of which the Legislature had made provision for registration, and held that there was nothing in the Bills of Sale Acts to exclude the debentures from the operation of the Acts. It would seem that this decision weakens the force of the considerations which the Court of Appeal in In re Standard Manufacturing Co. regarded as fortifying their decision. If registration, even unaccompanied by the sanction of avoidance, is enough to exempt securities from the Acts, it would be not unreasonable to hold that the provisions of the Industrial Societies Acts as to accounts, audit, and annual returns, were a sufficient equivalent. It would seem that the principle of In re Standard Manufacturing Co. applies only to " mortgages or charges," and therefore that an Absolute Bill of Sale by 324 BILLS OF SALE ACT, 1882. an incorporated company is liable to be avoided as against an Sect. 17, execution creditor under Section 8 of the Act of 1878. Note (c). (c) It was at one time suggested, though merely obiter, that these words restricted the application of the Section to debentures issued by companies ejusdem generis with mortgage or loan companies (Grove, J., in Jenkinson v. Brandley Mining Co., 1887, 19 Q. B. D. 568) ; but the difficulty of such a construction was pointed out by North, J. (Topham r. Greenside Firehrich Co., 1887, 37 Ch. D. 281) ; the suggestion was dissented from in Read i\ Jonnnon (1890, 25 Q. B. D. 300) ; and the Court of Appeal held that in any case the words must apply to any incorporated company which is authorised to raise money on loan or mortgage {In re Standard Manufacturing Co., 1891, 1 Ch. 627). It has also been suggested that the Section is confined to debentures secured on the undertaking or property of the company generally, so that instruments creating a charge only upon specific chattels would not be protected by it (see Cotton, L. J., in Ross r. Army and Navy Hotel Co., ante, p. 320; North, J., in Topham v. Greenside Firebrick Co., supra). If the question depended upon the language of the Section itself, such an argument would deserve very careful consideration ; but it is conceived that it would now be untenable in view of the broad principle laid down in In re Standard Manufacturing Co., supra. Extent of 18. Tliis Act shall not extend to Scotland (a) or ^'*- Ireland (b). (a) As to the law of Scotland see note (a) to Section 24 of the Act of 1878, ante, p. 242. (h) The Irish Statute corresponding to the present Act is The Bills of Sale (Ireland) Act (1879) Amendment Act, 1883 (46 Vict. c. 7), which came into operation on the 1st of August, 1883. SCHEDULE. Form of Bill ok Sale. This Indenture made the day of , between A. B. of of the one part, and C. D. of of the other part, witnesseth that in consideration of the sum of £ now paid to A. B. by C. D., the receipt of which the said ^4. B. hereby acknowledges [or whatever else the consideration may be], he the said A. B. doth hereby assign unto C. I)., his executors, administrators, and assigns, all and singular the several chattels and things specifically described in the ScluHhile hereto annexed by way of st^cnrity for the payment of the sum of £ , and intei-est tlicreon at the ratt^ of per ceTit. per annum [or ivhatcvcr else may be the rate']. And the said A. B. doth further agree and declare that he will duly pay to the said C. 1). the principal sum aforesaid, together with the interest then due, by equal payments of £ on the day of [or whatever else rnay be the stipulated times or time uf payment]. And the said A. B. doth also agree with the said C. D. that he will [here insert terms as to insurance, payment of rent, or otherwise, which the parties m.ay agree to for the maintenance or defeasance of the security]. Provided always, that tlie chattels hereby assigned shall not be liable to seizure or to be taken possession of l)y the said G. D. for any cause otlicr than those specified in Section 7 ol' The Hills of Sale Act (1878) Ami'iidnuMit Act, 1882. In witness, &c. Signed and sealed by the said A. Ji. in tlic ])rcsence of me /'-'. /''. [mid ivitness's name, address, and description]. BILLS OF SALE ACT, 1890. (53 & 54 Victoria, Chapter 53.) An Act to Exempt certain Letters of Hypothecation from the operation of The Bills of Sale Act, 1882. [18th August, 1890. BE it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. An instrument given or executed at any time prior to Exemption such deposit^ reshipment, or delivery as hereinafter nientio7ied, hypotheca- hypothecating or declaring trusts of imported goods during the ^^°^ o^ i?iterval heticeen the discharge of the goods from the ship in goods from which they are imported arid their deposit in a warehouse, ^^^■^J^l^/ factory, or store, or their beiiig reshipped for export or delivered to a purchaser not being the purchaser giving or executing such instrument, shall not he deemed a Bill of Sale within the meaning of Section 9 of The Bills of Sale Act, 1882 (a). (a) This Section is amended by the Act of 1891, poi;t. 2. Nothing in this Act shall affect the operation of Saving of Section 44 of The Banki'uptcy Act, 1883, in respect of (.. 52, s. u. ' any goods comprised in any such instrument as is herein- before described, if such goods would but for this Act be goods within the meaning of Sub-section 3 of that Section (a). (a) This Section is apparently rendered unnecessary by the amending Act of 1891, post. When the instruments in question are taken out of the Bills of Sale Acts altogether there remains nothing which could interfere with the reputed ownership clause — neither Section 20 of the Act of 1878, which excludes that clause, nor Section 7 of the Act of 1882, which limits its application by prohibiting the true o^Tier from taking possession of the goods except in certain events (see Section 15 of the Act of 1882, ante, p. 314). 3. This Act may be cited as The Bills of Sale Act, 1890. short title. BILLS OF SALE ACT, 1891 (64 & 55 Victoria, Chapter 35.) An Act to Amend The Bills of Sale Act, 1890. [21st July, 1891. BE it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : Exemption 1. Section 1 of The Bills of Sale Act, 1890, shall be ou imported amended so as to read as follows : An instrument charging goods from or creating any security on or declaring trusts of imported c. 3i/and ' goods given or executed at any time prior to their deposit ^^ 43^ ^^^^' ^^ ^ warehouse, factory, or store, or to their being reshipped for export, or delivered to a purchaser not being the person giving or executing such instrument, shall not be deemed a Bill of Sale within the meaning of The Bills of Sale Acts, 1878 and 1882 (a). (a) The mercantile instruments dealt with by the Act of 1890 were left by that Act in a very anomalous position. They wore excluded merely from the operation of Section 9 of the Act of 1882, the obvious inference being that they remained within all the other provisions of that Act. Hence, it was thought necessary to enact Section 2 of the Act of 1890, saving the application of the reputed ownership clause. By the present Act these instruments are exempted from the Bills of Sale Acts altogether, so that Section 2 of the Act of 1890 is now unnecessary. The most instructive way of regarding this Section is to treat it as extending the exemption in Section 4 of the Act of 1878, by which " the expression ' Bill of Sale' shall not include ]}ills of Sale of goods in foreign parts or at sea" (see ante, pp. 150, W.i). The exemption ceases when the goods are depositc>d in a ware- house, factory, or store, or r(^shij)ped for export, or delivered to a purcliaser not being the person giving or executing the instrument. There seems to be good reason for exempting from the Acts during this interval transactions and instruments which are of an essentially ephemeral character. Short title. 2. This Act may be cited as The Bills of Sale Act, 1891. APPENDIX OF FORMS. FORMS FOR USB UNDER THE BILLS OF SALE ACTS, 1878 AND 1882. Form I. Affidavit on Registration of Bill of Sale. [This Form is prescribed by R. S. C. 1883 (App. B. No. 24), but is strictly appropriate only to Bills of Sale within the Act of 1878.] 18 . No. IN THE HIGH COURT OF JUSTICE. Division. I, uf , make oath and say as follows : — 1. The paper writing hereto annexed, and marked "A," is a true copy of a Bill of Sale, and of every schedule or inventory thereto annexed or therein referred to, and of every attestation of the execution thereof, as made and given and executed by 2. The said Bill of Sale was made and given by the said on the day of , 18 . 3. 1 was present and saw the said duly execute the said Bill of Sale on the said day of , 18 . 4. The said resides at [_state residence at time of swearing Affidavit~\, and is [^state occupation^. 5. The name subscribed to the said Bill of Sale as that of the witness attesting the due execution thereof is in the proper handwriting of me, this deponent. 6. 1 am a Solicitor of the Supreme Court, and reside at 7. Before the execution of the said Bill of Sale by the said , I fully explained to the nature and effect thereof. Sworn at "^ this day >• of 18 , ) Before me, This AflBdavit is filed on behalf of 330 APPENDIX. Form II. Affidavit on Registration of a Bill of Sale in Security FOR Money. [Same Form as No. 1, adapted to provisions of The Bills of Sale Act, 1882.] 18 . No. IN THE HIGH COURT OF JUSTICE. Division. I, of , make oath and say as follows : — 1. The paper writing hereto annexed, and marked " A," is a true copy of a Bill of Sale, and of the schedule or inventory thereto annexed or written thereon, and of the \_or every, if there are tivo attesting witnesses^ attestation of the execution thereof, as made and given and executed by 2. The said Bill of Sale was made and given by the said on the day of , 18 . 3. I was present, and saw the said di^b^ execute the said Bill of Sale on the said day of , 18 . 4. The said resides at [state residence at time of swearing Affidavit] , and is [state occupatioji] . 5. The name subscribed to the said Bill of Sale as that of the witness attesting the due execution thereof is in the proper handwriting of me, this deponent. 6. I reside at , and am a Sworn at "^ this day >■ of 18 , ) Before me. This Affidavit is filed on behalf of FORMS. 331 Form III. Affidavit on Renewal of Registration. [See Schedule A. to The Bills of Sale Act, 1878 (ante, p. 244).] Form lY. Form of Register. [See Schedule B. to The Bills of Sale Act, 1878 (ante, p. 244).] Form Y. Order to Reiuster or Re-register Bill of Sale lnder Section 14 of The Bills of Sale Act, 1878 (ante, p. 232). [R. S. C. App. K. No. 59.] IN THE HIGH COURT OF JUSTICE. Queen's Bench Division. The Hon. Mr. Justice , Judge in Chambers. In the Matter of a made between and , dated the day of , 18 , and registered the day of , 18 . Upon the application of , and reading the Affidavit of , filed this day of , 18 . It is ordered that the time for registering [or re-registering] the said be extended until next inclusive, but this Order to be without prejudice to the rights of parties acquired prior to the time when such shall be actually registered \_or re-registered] . Dated this day of , 18 . 332 APPENDIX. Form YI. Consent to Entry of Satisfaction. IN THE HIGH COURT OF JUSTICE. Queen's Bench Division. I, of , being the person entitled to the benefit of a Bill of Sale dated the day of , 18 , and registered on the day of , made between A. B. of of the one part, and C. B. of of the other part, by way of security for the sum of £ and interest thereon, hereby certify that the debt for which such Bill of Sale was made or given has been satisfied and discharged, and I hereby consent to an Order that a memorandum of satisfaction be written upon the i^egistered copy of the said Bill of Sale. Dated the day of Signed in the presence of Form YII. Affidavit Verifying Consent to Entry of Satisfaction. IN THE HIGH COURT OF JUSTICE. 18 . No. Queen's Bench Division. I, of , make oath and say as follows : — 1. The paper writing hereto annexed and marked "A" is a consent by , of , to an Order that a memorandum of satisfaction be written upon the registered copy of a Bill of Sale dated the day of , 18 , and registered the day of , 18 , made between of , and of 2. I was present and saw the said duly sign the said consent on the day of , 18 3. The said is the same person as , of , mentioned in the said Bill of Sale. 4. The name subsci-ibed to the said consent as that of the witness attesting the signature of the said is in the proper handwriting of me, this deponent. 5. I am a , and reside at Sworn at this | day of 18 , 3 Before mo, This Affidavit is filed on behalf of FORMS. 333 Form YIII. Summons for Entry of Satisfaction on a Registered Bill of Sale. [R. S. C, 1883, App. K., No. 58: see Section 15 of the Act of 1878, and R. S. C, Order 61, Rules 26, 27 (ante, p. 234).] IN THE HIGH COURT OF JUSTICE. In tlie Matter of a Bill of Sale by to dated the da.j of , 18 , and registered on the day of , 18 . Let all parties concerned attend the Registrar of Bills of Sale at the Central Office, Ro^'al Courts of Justice, London, on the day of , 18 , at o'clock in the noon, on the hearing of an application on the part of that satisfaction be entered on the above-mentioned Bill of Sale. Dated the day of , 18 . This summons was taken out by of To Form IX. Oi;|)ER for Exti;v he Satisfaction on a Registered Bill of Sale. [R. S. C. 1883, App. K., No. 58a.] IN THE HIGH COURT OF JUSTICE. Division. In the Matter of a Bill of Sale by to , dated the day of , 18 . Upon the hearing of , and upon reading It is ordered that satisfaction be entered on the above- mentioned Bill of Sale. Dated the day , 18 334 APPENDIX. Hi ■< m X S -< s u m o ^ tm ^ ^ o Date of filing Affidavit of Renewal. 00 o u . CO r- 1 el M 00 1— 1 O to Amount secured and how rei^ayable. Ph (B d Nature of Instrument and Con- sideration. 1 ' - Residence and Occupation. o ft" d .2 2 QQ 't^ O O FORMS. 385 Form XI. Notice of Satisfaction. [Prescribed hy R. S. C, Bills of Sale Acts, 1878 and 1882 (ante, p. 311), to be transmitted to Local Registrar.] Bills of Sale Registry, Royal Courts op Justice, London. to Reojistered [or re-reg-istered] , 18 Abstract transmitted , 18 Satisfaction entered , 18 Take Notice That A Memorandum of Satisfaction to the above Bill of Sale was entered on the Reg-ister on the above date. (Sig7ied) To the Fcfiistrdr of the Cniuify Court of , Jiolden at Sent on the day of 336 APPENDIX. Form XII. PnaiciPE FOR Search. [Prescribed by R. S. C, 1883 (App. G. No 27), to be used under Order 61, Rule 23 (anie, p. 317).] 18 . No. IN THE HIGH COURT OF JUSTICE. Division. to Search for Dated the day of , 18 . (Signed) (Addi-ess) Agent for , Solicitor for Rules under Section 2 of The Conveyancing Act, 1882 (ante, p. 317). 1. Every requisition for an official Search shall state the name and address of the person requiring the Seai'ch to be made. Every requisition and certificate shall be filed in the Office where the Search was made. 2. Every person requiring an official Search to be made pursuant to Section 2 of The Conveyancing xlct, 1S82, shall deliver to the officer a declaration according to the Forms 1 and 2 in the Appendix, purporting to be signed by the person requiring the Search to be made, or by a solicitor, which declaration may be accepted by the officer as sufficient evidence that the Search is required for the purposes of the said Section. The declai-ation may be made in the requisition, or in a separate document. 3. Requisitions for Searches under Section 2 of The Conveyancing Act, 1882, shall be in the Forms 3 and 4 in the Appendix, and the certiticates of the results of such Searches shall be in th(? Forms 7 to 10, with such modifications as the circumstances may require. 4. Where a certificate setting forth the result of a Search in any name has been issued, and it is desired that the Search be continued in that name, to a date n(jt more than one calendar month subsecpicnt to the date of the certificate, a requisition in writing in tlu; Form 11 in the Ajijiendix may be left with the proper officer, who shall cause the Search to be continued, and the result of the continued Search shall \)v indorsed on the original certificate, and upon any office cojiy thereof which may have been issued, if produced to the officer for that pur])ose. The indorsement shall be in the Form 12 in the Ajijienilix, with such modifications as circumstances recjuire. FORMS. 337 Form XIII. Declaration by Separate Instrument as to Pukposes of Search. [Prescribed by the foregoing Rules, Form 1.] SUPREME COURT OF JUDICATURE. Central Office. To the Kegistrar of Bills of Sale, Royal Courts of Justice, London. In the Matter of A. B. and C. D. I declare that the Search [or Searches] in the name [or names] of required to be made by the Requisition for Search dated the , is [or are] required for the purposes of a sale [or mortgage, or lease, or as the case may fee], by A. B. to C. I). Signature, "^ Address, and > Description j Dated Form XIY. Declaration as to Purposes op Search contained in the Requisition. [Prescribed by the foregoing Rules, Form 2.] I declare that the above-mentioned Search is required for the pui'poses of a sale [or mortgage, or lease, or as the case may fee] by A. B. to C. D. 338 APPENDIX. Form XY. Requisition for Search in the Bills of Sale Department under The Conveyancing Act, 1882, Section 2. [Prescribed by the foregoing Eules, Form 4.] SUPREME COURT OF JUDICATURE. Central Office. Requisition for Search. To the Registrar of Bills of Sale, Royal Courts of Justice, London. In the Matter of A. B. and C. D. Pursuant to Section 2 of The Conveyancing Act, 1882, Search for instruments registered or re-registered as Bills of Sale during the period from , 18 , to , 18 , both inclusive, in the following name \_or names] : — Surname. Christian Name or Names. Usual or last known Place of Abode. Title, Trade, or Profession. Add declaration, Form 2 (Form XIV., supra). State if an office copij of the certificate is desired, and ivhether it is to be sent by post or to be called for. Signature, address, and "^ description of person r requiring the Sear person j- -ch ) Dated FORMS. 339 Form XYI. Certificate of Search by thk Registrar of Bills of Sale under The Conveyaxcixg Act, 1882. [Prescribed by the foregoing Rules, Form 8.] SUPREME COURT OF JUDICATURE (Central Office). Bills of Sale Department. Certificate of Search Pursuant to Section 2 op The Conveyancing Act, 1882. In the Matter of A. B. and C. I). This is to certify that a Search has been diligently made in the Register of Bills of Sale in the name [or names] of for the period from , 18 . to , 18 , both inclusive, and that no instrument has been registered or re-registered as a Bill of Sale in that name [or in any one or more of those names] duinno- that period. Or, and that except the described in the Schedule hereto, no instrument has been registered or re-registered as a Bill of Sale in that name [_or in any one or more of those names] during the period aforesaid. The Schedule. Dated Form XYII. Requisition for Continuation of Search under The Convey'ancing Act, 1882. [Prescribed by the foregoing Rules, Form 11.] SUPREME COURT OF JUDICATURE (Central Office). REQUISITION FOR CONTINUATION OF SEARCH. To the Registrar of Bills of Sale. Royal Courts of Justice, London, W.C. In the Matter oi A. B. and C. B. Pursuant to Section 2 of The Conveyancing Act, 1882, continue the Search for , made pursuant to the requisition dated the day of , 18 , in the name \_or names] of , from the day of to the day of , 18 , both inclusive. Signature, address, and description ) of person i-equiring the Search j Dated 340 APPENDIX. Form XYIII. Cehtipicate of Result of Continued Search under The Conveyancing Act, 1882 (Section 2), to bk Indorsed on Original Certificate. [Prescribed by the foregoing Rules, Form 12]. Tliis is to certify that the Search [or Searches] mentioned in the within-written certificate has [ar have] been diligently continued to the day of , 18 , and that up to and including that date [except the mentioned in the Schedule hereto (these ivords to he omitted where nothing is found)~\, no instrument has been registered, or re-registered, as a Bill of Sale in the within-mentioned name \_or in any one or more of the within-mentioned names]. Dated Form XIX. Attestation Clause to Bill of Sale within the Act of 1878. (See Section 10 of that Act, ante, p. 197.) Signed [or signed, sealed, and delivered] by the above-named in my presence, the effect of the above-written Bill of Sale having been explained by me to the said before the execution thereof. A Solicitor of the Supreme Court of Judicature. Form XX. Statutory Form of Bill of Sale in Security for Money. (See ante, p. 824, and Notes, ante, pp. 283-309.) INDEX. ABSOLUTE BILLS OF SALE : at Common Law and by statute, 1. governed by Act of 1878, 6, 249. (1) documents accompanying sales, 6 — 19 {see " Sales "). (2) deeds of gift, declarations of trust, and settlements, 20 — 22. schedule or inventory, 23 — 26 {t^ee " Schedule "). Statutory Requirements : must be attested, 188 (see "Attestation "). must be registered within seven days, 188 (.see "Reglstration " and "Time"). effect of bankruptcy or execution within seven days, 189, 193. provision for Bills executed out of England, 189, 269. must be re-registered every five years, 229 (see " Renewal of Registration "). must set forth consideration, 188 (see " Consideration "). due registration excludes grantor's order and disposition, 240 (see "Reputed Ownership"). Consequences of Non-Compliance : avoidance in certain events, 188. in whose favour avoided, 188, 189. (1) trustee in bankruptcy, &c., 188. critical date — at or after time of filing petition, 188, 192. effect of possession by grantee before filing of petition, 192. effect of possession by sheriff at critical date, 171, 192. (2) trustee under assignment for benefit of creditors, 188, 189. (3) sheriff's officer &c. levying execution, 188. (4) execution creditor, 188. extent of avoidance against execution creditor, 189, 191. effect of possession by grantee before execution, 192. avoidance only affects chattels in possession or apparent possession of grantor, 188 (see "Apparent Possession "). avoidance does not affect leaseholds, 191. nor covenant to pay, 191. 342 INDEX. ABSOLUTE BILLS OF SAL'S!— continued. unregistered or unattested Bill of Sale is good between grantor and grantee, 189. as against purchaser from grantor, 189. as against liquidator of company, 190 (see " Incorporated Company "). as against unsecured creditors in administration action, 190. unregistered Bill of Sale may be postponed to later registered Bill of Sale, 198, 224 (see "Priority of Bills of Sale"). unregistered Bill of Sale, how proved, 237. when satisfied, 235. when exhausted and spent, 226, 230, 236. comment on Tuck v. Southern Counties Deposit Bank, 226. ABSTRACT of Bill of Sale, when to be transmitted to local registrar, 310. form, 334. of re-registered Bill of Sale, 311. (See also " Local Registration " and " Registrar.") ACT OF BANKRUPTCY : definition of, 118. assignment for benefit of creditors, 118, 160. fraudulent conveyance, 118. assignment of debtor's whole property in consideration of past debt, 119. what is a substantial present equivalent, 119. when part of consideration is a substantial fresh advance, 120. when part of consideration is an agreement to make further advances, 120. when assignment is made in pursuance of agreement made at the date of loan, 120. postponement of giving security until insolvency, 121. fraudulent preference, 118, 123. when available for adjudication, 125. when Bill of Sale may be void as, 126. protected transactions, 125, 126. ADDRESS of grantor in statutory form, 283. of attesting witness must appear in attestation claus(> ol' statutory form, 308, 309. (See also "Residence.") ADVERTISEMKNTS l)y nioncy-londers, 55. INDEX. 343 AFFIDAVIT : how to be sworn, 237, 238. formal requisites of, 238. clerical error in jurat, 238. omission of commissioner's title, 238. omission of commissioner's name, 238. not to be taken out of Central Office without order, 236. proved by office copy, 236. not proved by certificate of registration, 237. penalty for making or using false affida\at, 238. defect in. how cured (see "Rectification of Regi.ster"). AFFIDAVIT OX REGISTRATION OF BILL OF SALE to be filed with copy of Bill of Sale &c., 198. form of affidavit prescribed by R. S. C, 329. form adapted to Bill of Sale in security for money, 330. contents of affidavit, 198. (1) date of execution of Bill of Sale, 200. clerical error in date, 201. (2) due execution and attestation, 201. execution at foot of annexed schedule, 201. what is due attestation, 201. verification of signature insufficient, 201. 202. not necessary to verify fact of explanation to grantor, 202. (3) description of residence (see "Residence "). (4) description of occupation (see " Occupation"). (a) of grantor &c., 198. Bill of Sale by joint grantors, 212. error in name of grantor, 212. (b) of every attesting witness, 212. omission to describe one of several witnesses, 212, 213. description of attesting witness in introductory part of affidavit, 202, 203. descriptions refer to time of swearing affidavit, 203, 207. description to best of deponent's belief, 202. AFFIDAVIT ON RENEWAL OF REGISTRATION to be filed with registrar, 229. form of affidavit, 2-14. contents of affidavit, 230. (1) date of Bill of Sale and of last registration, 229. (2) names, residences, and occupations of parties as stated in Bill of Sale, 230. (3) that Bill of Sale is still a subsisting security, 230. 344 INDEX. AFTER-ACQUIRED CHATTELS : whether included in " personal chattels," 3. criticism of Lord MacNaghten's view, 150, 164. confirmation from language of Section 7 of Act of 1878, 187, 188. modes of creating security over, before Act of 1882 — (1) by grant or assignment completed by novus actus inter veniens, 91. exception as to future crops, 92. (2) by licence to seize, 92. effect of discharge in bankruptcy, 93, 235. (3) by equitable assignment or conti'act to assign, 93. title taken by grantee, 9-4. qusere as to contract to assign all future property, 95. effect of discharge in bankruptcy, 94, 235. Under Act of 1882 : Bill of Sale is void, except against grantor, as to articles specifically described in schedule of which grantor not true owner, 253 (see " Growing Crops," " Substituted Fixtures," and " True Owner"). assignment of, in body of Bill of Sale, 253, 285. substituted under covenant for maintenance, 253, 286, 301. substituted under protection of Section 6, 259, 286, 301. priority of Bills of Sale over, 104. AFTER-ACQUIRED PROPERTY of undischarged bankrupt, 99, 100. AGENT : Bill of Sale by, 97, 98, 99 (.sec "Attorney "). AGREEMENT to give a Bill of Sale does not require to be registered, 54, 156. money advanced on security of, 54, 120. might formerly be relied on as an equitable assignment, 54, 157. specific performance of, 55. when sufficient to support assignment of debtor's whole property, 120. intentional postponement of giving security, 121. creating a right or charge in Equity over personal chattels is a Bill of Sale, 149, 156 (sec " Bill of Sale " and " Equity"). collateral to a Bill of Sale (see " Consideration " and " Defeasance"). to give a pledge or similar security in futuro, 52. creating a power of distress (see " Attornment "). {See aUo " Building Agreement " and " Hiring Agreement.") APPARENT POSSESSION : definition of, 150. (1) when chattels are on premises occupied by grantor, 150. de facto occupation necessary, 166. distinction between real and formal possession, 167. possession by bailee, 168. possession as servant, 170. INDEX. 345 APPARENT POSSESSION— co«^i7l»ec^. (2) when chattels are used and enjoyed in any place whatsoever, 150, 170. possession by bailee, 170. attornment or adverse claim, 1 70. possession of sheriff under execution, 170, 171. ambiguity of possession as between husband and wife &c., 171, 172. unregistered Absolute Bill of Sale void if chattels in grantor's, 188, 193. distinguished from reputed ownership, 241. does not apply to Bills of Sale under Act of 1882, 314. ASSIGNMENT of chattels, when an assurance, is a Bill of Sale, 149. of chattels in statutory form, 284. of Bill of Sale (see " Transfer "). fraudulent (nee "Act of Bankruptcy" and " Fraudulent Conveyances"). ASSIGNMENT FOR BENEFIT OF CREDITORS excepted from definition of Bill of Sale, 150, 158. when instrument is within the exception, 158 — 160. when void under 13 Eliz. c. 5, or under bankruptcy laws, 160. trustee under, unregistered Bill of Sale void against, 188, 189. ASSURANCE of personal chattels is a Bill of Sale, 149, 152. explanation of term, 152. examples of, 152. when document accompanying sale is an, 7. (See also "Bill of Sale" and "Sales.") ATTESTATION : meaning of, 199, 201. (1) of Absolute Bill of Sale, 188, 197. in what cases necessary, 188. attestation by solicitor necessary, 197, 199. not party to the deed, 199. attestation clause must state fact of explanation to grantor, 197, 199. form of attestation clause, 340. questions as to sufficiency of e.xplauation, 199. evidence of solicitor as to execution, 199. (2) of Bill of Sale in security for money, 269. by credible witness, 309. not party to the deed, 309, 310. agent of grantee, 310. name, address, and description of witness must appear on face of Bill of Sale, 309. form of attestation clause, 308. 346 INDEX. ATTESTING WITNESS: proof of Bill of Sale by, 237. description of, in affidavit filed on registration, 198. every attesting witness must be described, 212. must not be party to Bill of Sale, 199, 309 (see " Attestation "). ATTORNEY : execution of Bill of Sale under power of, 55, 105. ATTORNMENT not within Act of 1854, 155, 179. now "deemed to be a Bill of Sale," 178 (.fee "Deemed to be Bill of Sale"). distinction between attornment clause creating tenancy and conventional power of distress, 179, 180. attornment clause ci-eating tenancy. 181. iiature of tenancy, 180. incidents of right to distrain, 180. consequences of non -registration, 181, 182. express power of distress, without tenancy, 181. consequences of non-registration, 181. proviso as to demise by mortgagee in possession, 179, 182, 183. what is fair and reasonable rent, 183, 184. AUCTION : sale by, may be within Act of 1878, 10, 189. when sheriff must sell by, 26. AUCTIONEER : action by grantee against, 58. stipulation for commission on sale by auctioueer-gi-antee, 303. AUTHORITY to take possession of chattels, as security for a debt, is a Bill of Sale, 149, 152 (see " Bill of Sale " arid " Licence "). BAILEE: possession of chattels by, 168. 170. BANKRUPT : Bill of Sale by undischarged, 99. dealings of, with after-acquired property, 99, 100. BANKRUPTCY : commencement of, 124. protection of bona fide transactions without notice, 125. onus of proving want of notice, 126. jurisdiction in, 130 — 132. rights of Bill of Sale holder in, 132. payments by holder of void Bill of Sale, 133. a cause of seizure, 260, 263 (.see " Seizure, Causes ok "). {See aUo "Act of Bankkuptcv," "Fraudulent Preference," "Reputed Ownership" unci "Voidable Settlements"). INDEX. 347 BARGE (sec "Ship"). BENP]FICIAL OWNER : assignment as, is inconsistent with statutory form, 284. BILL OP EXCHANGE : effect of, as collateral security, 63 (see " Defeasance "). as consideration for Bill of Sale, 273, 277 (.see " Consideration "). BILL OF LADING excepted from dednition of Bill of Sale, 1.50. BILL OF SALE : Common Law definition of, 1. definition of, under the Acts, 149. instruments included in definition, 149. (1) assurances of personal chattels, 149, 151. Bills of Sale, 149. assignments, 149. transfers, 149, 1.51. declarations of trust without transfer, 149, 151. inventories of goods with receipt attached, 149, 151. receipts for purchase-moneys of goods, 151 (.see aUo " Sales "). other assurances of personal chattels, 149, 152. formerly included equitable assurances, 152. (2) licences to take possession of chattels, as security for a debt, 149, 152. not available as security, under Act of 1882, 152, 280, 281. do not include cases where possession is actually delivered 153. delivery of possession a question of fact, 153 (see " Licence to Take Possession of Chattels"). examples of licence in brewer's lease, 155. (3) agreement creating right or charge in Equity over personal chattels 149, 156. equitable assurances within Act of 1854, 156, 157. equitable rights or charges since 1878, 157, 158. Exceptions from definition : assignments for benefit of creditors, 150, 158. • marriage settlements, 150, 160. transfers of ships or vessels, 150, 161. transfers of goods in ordinary course of business, 150, 162. Bills of Sale of goods in foreign parts or at sea, 150, 163. instruments charging imported goods, 325, 326. documents authorising delivery &c. of goods, 150, 164. delinition of, how affected by statutory form, 281. two tests whether instrument is, 148. how taken out of Acts, 149. distinction between Absolute and conditional, at Common Law, 1. distinction between Absolute and by way of secui-ity, how recognised in Act of l87s, 148 (.see " Conjjitio.n " and "Defeasance"). 348 INDEX. BILL OF SALE — continued. distinction between Absolute and by way of security for money, in Act of 1882,248 (see "Fictitious Transactions"). meaning of, in Act of 1882, 2-15. (See also " Deemed to be Bill of Sale.") BILL OF SALE IN SECURITY FOR MONEY is essentially a mortgage of chattels, 53. distinguished from ordinary mortgage of personalty, 53. distinguished from pledge &c., 45 ef seq. distinguished from Absolute Bill of Sale, 248. evidence to prove nature of transaction, 40, 248. may be executed under power of attorney, 55, 105. when voidable on ground of fraud, 55, 56. grantor's statutory right to possession, 56, 260. outline of former law, 70 — 72. events in which grantee may take possession, 259, 260. importance of right to possession as against strangers, 261. insertion of express powers of seizure, 260, 302 (see " Maintenance or Defeasance of Security" and " Statutory Form"). chattels not to be removed or sold for five days after seizure, 313. action for wrongful seizure &c., 56. measure of damages, 56, 57 (see " Possession " and " Seizure, Causes of"). grantor has no implied jus dis'ponendi, 58. outline of former law, 73 — 75. action by grantee against purchaser from grantor, 58. liability of auctioneer, 58. grantor's power to redeem, 66, 67 (see " Redemption "). grantee's power of sale, origin of, 59. injunction to restrain sale, 60, 62. undertaking as to damages, 62. implied trusts of sale moneys, 60, 303. liability for improper sale, 61. grantee's right to appointment of receiver, 61. right to foreclose, 61. claim for costs and expenses, 61, 303. action on covenant for payment, 62. collateral securities, 63, 64 {see " Defeasance "). successive Bills of Sale, 68—70 (.see " Successive Bills of Sale "). transfer of (see " Transfer "). transfer of debts sc^cured by, 64. when satisfied, 235. when exhausted and spent, 227, 228, 236. Statutory Requirements : must have schedule of cliattels annexed, 249 (see "Schedule" and " True Owner "). INDEX. 349 BILL OF SALE IN SECURITY FOR MOSEY— continued. must be attested, 269. be registered within seven clear days, 269. Bills of Sale executed out of England, 269. truly set forth consideration, 269 (see " Consideration "). consequence of non-compliance — " void in respect of personal chattels," 269. possession taken immaterial, 279. not construed as licence to seize, 279. independent title, 279, 280. grantor remains liable on covenant, 280. must be in accordance with statutory form, 54, 280. not limited to transactions of loan, 280. effect on definition of Bill of Sale, 281. tests of compliance {see " Statutory Form "). consequence of non-compliance — " void in toto," 281. grantor not liable on covenant, 281. instrument may be good as assignment of chattels real, 281. or of " e.xcluded machinery," 281 (bitf see "Excluded Machinery "). or of hiring agreement, 282. consideration must not be under £30, 312. BILLS OF SALE dated before Act of 1854 : how defeated, 190. transfer of, after Act of 1854, 242. dated after Act of 1854 but before 1st January, 1879 : Acts of 1854 and 1866 continue in force, 242. registration must be renewed under Act of 1878, 229, 242. retrospective rule of construction as to fixtures and growing crops, 184, 242 (see " Separately Assigned or Charged "). not affected by Act of 1882, 246. dated on or after 1st January, 1879 : three classes, 147. reason of this classification, 245, 246. BILLS OF SALE ACTS : an offshoot from the law as to fraudulent conveyances, 1. cardinal definitions in, 2. strike at documents not transactions, 4. Bills of Sale Act, 1854, 137—140. general object of, 2. avoided title in certain events only, 3. how far it continues in force, 242. re-registration of Bill of Sale registered under, 229, 242. did not affect reputed ownership, 241, 314. 350 INDEX. BILLS OF SALE ACTS— co7itinued. Bills of Sale Act, 1866, 141—144. first made renewal of registration necessary, 229. Bills of Sale Act, 1878, 147—244. commencement of, 147. a^jplication of, 147, 148. extent of, 242. general object of, 2. dominant conception of, 3. avoids title in certain events only, 3. {See " Absolute Bills of Sale.") Bills of Sale Act (1878) Amendment Act, 1882, 245—324. commencement of, 245. construction of, 245. scope of, in relation to Act of 1878, 248, 249. extent of, 324. general object of, 2. dominant conception of, 3. avoids title ab initio, 3. even if possession taken, 4. (See " Bill of Sale in Security for Money.") Bills of Sale Acts, 1890 and 1891, 325, 326. exclude from Acts certain instruments charging imported goods, 326. BILLS OF SALE DEPARTMENT OF CENTRAL OFFICE : first and second class clerks in, may take oaths and affidavits, 238. office hours in, 317. BONUS included in principal sum, 287. included in lump sum, together with interest, 289. BOOK DEBTS (.see "Choses in Action"). BREWER'S LEASE : licence to seize chattels in, 155, 179. BUILDING AGREEMENT not within Bills of Sale Act, 1854, 27. stipulations in, when void in bankruptcy, 27. not within the Acts, 28, 248. assignment by lessee or buihkn", including building materials, 28, 29. CANCELLATION OF HILL OF SALE: effect of, 195— 197, 235. CAPACITY of parties to Bill of Sale, 105. CERTIFICATK OF REGISTRATION not evidence of affidavit, 237. CHATTKLS (.see " Pkhsonal Chattels"). INDEX. 351 "CHATTELS AND THINGS" : meaning of, 285 (see "Statutory Form"). CHATTELS REAL not personal chattels within Acts, 150. Bill of Sale not void in respect of, 191, 281. insertion of, in Bill of Sale is a departure from the statutory form, 286. quxre as to insertion in schedule, 251. CHOSES IN ACTION not personal chattels within Acts, 150. include book debts, 89. debt accruing due under hiring agreement, 90. share in partnership, 90. executory bequest of chattels, 90, 102. " CLEAR DAYS " : meaning of, 269, 313. CLERICAL ERROR in copy of Bill of Sale &c., 200 (.see "True Copy "). in affidavit, 201. in jurat of affidavit, 238. in schedule, 252. COLLATERAL AGREEMENT {. transfer of charge by incorporated company, 65, 323. debentures issued by, not within Act of 1882, 318 (see " Debextures "). ! shares in capital or property of, not personal chattels, 150. : INDEMNITY : Bill of Sale given by way of, 287, 291. i INDEPENDENT TITLE ' apart from Bill of Sale or document, 4, 11, 45 et aeq., 158 (aee also " Sales "). when Bill of Sale void, 279, 280. I INDEX I to be kept by registrar, 231. I error in, 231. j to be kept by county court registrar, 312. satisfaction to be noted in, 312. J INDIA WARRANTS not within definition of Bill of Sale, 150. i I INDUSTRIAL AND PROVIDENT SOCIETIES ACTS : debentures issued by i society registered under, 323. 1 INJUNCTION ! to restrain sale, when granted, 60, 62, 313. I undertaking as to damages, 62. ! to restrain removal or sale under Section 7, 268. ■ application to set aside, 269. ' INSPECTION of registered Bill of Sale, right of, 317. of local registry, right of, 310, 312. j INSTALMENTS : provision for payment by, 291 — 295 (see " Statutory Fokji"). ' how it affects right to redeem, 67. ! INSTRUMPJNT creating power of distress is now deemed to be a Bill of Sale, j 178 (see " Attornment " and " Deemed to be Bill of Sale "). INSURANCE : j covenant for, may be inserted in statutory form, 295. may be necessary for maintenance, 308. \ J 364 INDEX. INSURANCE— conh'wMecZ. payments by grantee for, may be charged on chattels, 298. and made repayable on demand, 298. but not recoverable by seizure, 299. application of policy moneys, 297, 298. INTEREST recoverable by grantee, 61. ceases after valid tender, 68. rate must be stated in statutory form, 286. stipulation for interest on interest vitiates Bill of Sale, 288. stipulation making future interest payable on default vitiates Bill of Sale, 288, 289. stipulation for, on overdue instalment of principal, 292. calculated in a lump sum, 289. v^hat is a " rate of interest," 290. " on mortgages, if any," covenant by grantor to pay, 300. misrepresentation as to rate of, 55. INTERPLEADER : claims by grantee in, 267, 268. grantee need not prove immediate right to possession, 261. order for sale in, 68. INTERPRETATION OF TERMS {see " Dkfinitions"). INVENTORY (.s-ee "Schedule"). INVENTORY OF GOODS WITH RECEIPT ATTACHED is a Bill of Sale, 149, 151. these vt^ords were not in Act of 1854, 13. test of necessity for registration, 151, 152 (see a7.so " Sales"). when colourable mortgage, 152 (.see " Fictitious Transactions"). IRELAND : Acts do not extend to, 242, 324. corresponding Acts applicable to, 243, 324. English Bill of Sale over chattels in, 163. JOINT OWNERS : title to grant Bill of Sale, 100, 254. avoidance of Bill of Sale granted by, 193. description of joint grantors in affidavit, 212. JOINT STOCK COMPANY (.see " Incorporated Company"). JURISDICTION IN BANKRUPTCY : provisions of Section 122 of Bankruptcy Act, 1883, 130 — 132. oljjection to existence or exercise of jurisdiction, 131. INDEX. 365 LACHES : surety discharged by, G3, 261. LANDLORD OF GRANTOR : questions between grantee and, 263 — 26.). has no remedy against grantee for removal of goods within five days after seizure, 313. (See "Distress for Revt.") LEASE : 4 power of distress in, not within Acts, 179. by mortgagee in possession, 179, 182 (spe " Attorxme-N't " and " Mortgagee IN Possession "). (See also " Brewer's Lease," " Hiring Agreement," " Mining Lease," and " Surrender of Lease.") LICENCE TO TAKE POSSESSION OF CHATTELS as security for a debt is a Bill of Sale, 149, 152. not available as security under Act of 1882, 47, 152, 280, 281. formerly used as form of mortgage, 54. especially over after-acquired property, 92, 93. definition does not apjjly when possession actually given, 45 et aeq., 153. delivery of possession a question of fact, 153. distinction as to effect of, according to nature of transaction, 153. when licence may be exercised after change of property, 154. whether licence can be transferred, 154, 155. contained in hiring agreement, 154, 155 {?.ee " Hiring Agreement"). contained in brewer's lease, 155. otherwise than as security for a debt, 153, 248. by making forcible entry, 302. void Bill of Sale cannot operate as, 279, 281. LIEN reserved on sale and transfer of stock-in-trade &c., 19, 158. dependent on jjossession, not within Acts, 45 et seq., 149. distinguished from pledge, 46. when goods are in possession or on premises of creditor, 51, 1.53. given by law, without writing, not within Acts, 148. LIQUIDATOR (.see " Incorporated Company "). LOCAL REGISTRATION : abstract of Bill of Sale when to be sent to local registry, 310. effect of omission, 311. form of abstract, 334. abstract of re-registered Bill of Sale, 311. notice of satisfaction, 31 1 . form of notice, 335. (See also " Registrar.") 366 INDEX. LONDON BANKRUPTCY DISTRICT : definition of, 310. MAINTENANCE OR DEFEASANCE OF SECURITY : terms agreed to for, may be inserted in Bill of Sale, 295. meaning of "maintenance of security," 296. meaning of " defeasance of security," 297. " defeasance " distinguished from " term for defeasance of security," 3, 223, 297 (sec " Defeasance "). insertion of terms not within this description, when fatal, 295, 296. covenant to insure, pay rent, rates, taxes, &c., 298, 299. to produce receipts &c., 299, 300. payments by grantee may be charged on chattels, 298, 299. and made repayable on demand, 298. but not recoverable by seizure, 299, 306. covenant to pay interest on " mortgages, if any," is too wide, 300. covenant not to remove from premises, 300. covenant to repair, replace, and make good, 300, 301. covenant for substitution not implied, 253. title of grantee to substituted articles, 253, 301. cost of repairs by grantee may be charged on chattels, 301. covenant for further assurance, 301, 302. express powers to seize and sell, 302. trusts of proceeds of sale, 303. stipulations operating after sale, 304 (.see " Sale "). power to seize avoids Bill of Sale if attached to any covenant not necesfiary lov mamtaining security (.fee "Necessary for Maintaining Security") MARGINAL NOTE in Act of Parliament, 253. MARRIAGE SETTLEMENT excepted from definition of Bill of Sale, 150, 160. includes informal agreement for settlement, 160. but not ])ost-nuptial settlement, 160. when void under 13 Eliz. c. 5, or under bankruptcy laws, 161. Bill of Sale by husband of ])roperty com]n-ised in. 102. MARRIED WOMAN : Bill of Sale by, 101, 102. Bill of Sale to, by husband, 16, 18, 22. apparent possession of chattels belonging to, 171, 172. description of, in affidavit, 209, 210 (see "Affidavit " nyid " Occupation "). MARSHALLING as between first and second mortgagees, 69. as between landlord and grantee, 264. MASTERS OF SUPREME COURT to be registrar of Bills of Sale, 232. affidavits may be sworn before, 237. INDEX. 367 MEMORANDUM OF SATISFACTION {see " Satisfaction "). MINING LEASE : power of distress in, not within Acts, 178. nature of power of distress in, 179. MISNOMER of grantor or grantee, 105 — 108. of grantor as an element of fraud, 106, 116. of grantor in affidavit, 212. MISREPRESENTATION : Bill of Sale obtained by fraudulent, 55 (see " Fraud"). MONEY LENDERS : Act of 1882 aimed at, 2. advertisements by, 55. MONTH : meaning of, in hiring agreement, S-l, 41. MORTGAGE of chattels, definition of, 53. how created at Common Law, 53, 54. Bill of Sale in security for money is, 53, 54 (see " Bill of Sale in Secdritt for Moxet"). under colour of sale and hiring agreement &c., 30 — 41, 248 (see "Fictitious Transactions "). coupled with immediate transfer of possession, 45 (see " Pledge "). of land containing attornment clause, 178 et seq. (see " Attornment "). MORTGAGEE IN POSSESSION : demise by, not within Acts, 179, 182. what is fair and reasonable rent, 183, 184. attornment clause does not make mortgagee a mortgagee in ])ossession, 183. MOTIVE POWERS (,w - Excluded Machinery"). NAME of grantor or grantee, 106 — 108 (see " Misnomer "). NECESSARY (COVENANTS) FOR MAINTAINING SECURITY : default in performance of, a cause of seizure, 260, 263. question of "' necessity " may be material to right to possession, 263. Bill of Sale may contain covenants for maintaining security, 295 (see "Maintenance or Defeasance" and "Statutory Form"). question of necessity may arise in connection with the statutory form, 263. 296. power of seizure attached to covenant not neces.sary for maintaining security avoids Bill of Sale, 263, 296, 304. term cannot be made necessary by agreement, 296, 304. construction of power to seize, 304, 305. 368 INDEX. NECESSARY (COVENANTS) FOR MAINTAINING SEGVRITY— continued. decisions on question of " necessity," 30-4 — 308. tendency in earlier cases, 305, 306. vai'iations of powers to seize conferred by Section 7, 306 — 308. (1) nonpayment of sums paid for rent &c., 306. (2) bankruptcy or composition, 306, 307. (3) covenant not to remove chattels from promises, 307. (4) non-production of receipts, 307. (5) execution &c., 307. covenant to insure &c., 308. covenant to repair, replace, and make good, 308. covenant to pay rent, rates, and taxes, 308. OCCUPATION : description of, in affidavit filed on registration, 198 (see '"Affidavit"). at time of swearing affidavit, 207. meaning of, 207. omission of, vitiates affidavit, 207. may be described by reference to copy Bill of Sale. 207. onus of proving fact of, 208. description as " gentleman " equivalent to omission of, 208. cases where occupation not proved, 208. cases where occupation proved, 209. of " married woman " or " widow," 209, 210. sufficiency of description, 210. persons carrying on several occupations, 211. alleged inaccuracy or misdescrijjtion, 211, 212. OFFICE COPY of Bill of Sale and affidavit, or affidavit of renewal, 236. fee for, 236. how authenticated, 236. admissible in evidence, 236. of abstract or notice of satisfaction, 310, 312. ORDER AND DISPOSITION (.sec "Reputed Ownership"). ORDINARY COURSE OF BUSINESS (.see "Transfek"). PAROL evidence admissible as to real nature of transaction, 40, 248 (see " Fictitious Transactions"). transactions not affected by Acts, 4, 6, 20, 48, 158. agreement, whether capable of being a defeasance, 214. PARTIES to Bill of Sale, cai^acity of, 105. PARTNERSHIP : Bill of Sale of goods belonging to, 100, 101, 254. assignment of share in, 90. INDEX. 369 PAWN (see "Pledge"). PAYMENT default in, a cause of seizure, 259. meaning of, 261, 262. covenant for, 290 (see " Statutory Form "). PAYMENTS by holder of void Bill of Sale, when recoverable, liJS. by grantee for rent &c. may be charged on chattels, 298, 299, 301. and made repayable on demand, 298. but not recoverable by seizure, 299, 306. PERJURY by making or using false affidavit, 238. PERSONAL CHATTELS : definition of, 150. application of definition under Acts of 1878 and 1882, 164. Property I.xcluded in Definition : — goods, furniture, and other articles capable of complete transfer by delivery, 150, 164. Lord Macnaghten's view that the definition excludes after-acquired chattels, 3, 164. criticism of this view, 164, 165. confirmation from language of Section 7, 187, 188. provisions of Act of 1882 as to after-acquired property, 165, 253 (see "True Owner"). undivided shares in chattels, 165. fixtures, when separately assigned or charged, 150, 165 (see " Fixtures"). growing crops, when separately assigned or charged, 150, 165 (see " Growing Crops ") . Property Excluded from Definition : chattel interests in real estate, 150 (tee" Chattels Real "). fixtures, when assigned together with a freehold or leasehold interest iu land, &c., 150, 165. trade machinery excepted from this negative rule, 165 (sec " Trade Machinery.") growing crops, when assigned togetherwithanyinterestin the land, 150, 165. shares or interests in the Stock, Funds, orsecuritiesofanj- Government, 150. shares or interests in the capital or property of any incorporated or joint stock company, 150. choses in action, 150 (see " Choses i.\ Action "). stock or produce not removable from farm, 150, 166. (See " Schedule.") PLANT : meaning of, 258. substituted for articles specifically described in schedule, 256 (see " True Owner"). BB 370 INDEX. PLEDGE : transactions of, not within Acts, 45. even if terms reduced to writing, 46, 47, 148. distinguished from mortgage, 45 (note). delivery of possession need not be contemporaneous with advance, 49. delivery of possession a question of fact, 153. of goods in possession of sheriff, 50. memorandum of, should be stamped as agreement, 49 (note). effect of contract to give pledge in fnfuro, 52. POLICY OF INSURANCE taken as collateral security, 63. guaranteeing payment by mortgagor to mortgagee, 64. on chattels, covenant by grantor for production of, 298. application of proceeds of, 297, 298. POSSESSION : securities dependent on, 45 — 52. delivery of, is a question of fact, 153. Of Grantor at date of Bill of Sale not material to need for registration, 3. grantor's continuance in possession formerly evidence of fraud, 115. unregistered Bill of Sale void under Act of 1878, if goods in, 188 (.see "Absolute Bills of Sale" and "Apparent- Possession"). statutory redemise under Act of 1882, 56, 259. outline of former law, 70 — 72. events in which grantee may take possession, 259, 260 (see "Seizure, Causes of"). effect on reputed ownership clause, 314 — 316. By Grantee under unregistered Bill of Sale, 4, 192, 280. omission to take on default not evidence of fraud, 116. POST-NUPTIAL SETTLEMENT OF CHATTELS is not a marriage settlement, 160. is generally within Acts, 22. POWER OF ATTORNEY: execution of Bill of Sale under, 55, 105. to take possession of chattels, as security for a debt, is a Bill of Sale, 149, 152 (see "Bill of Sale " ajid " Licence "). mere authority to act under Bill of Sale need not be stamped as, 240. POWER OF SALE (.see "Sale"). PREFERENCE OF CREDITOR apart from l)ankruptcy, 114 (i^cc " Fraudulent Preference "). PRINCIPAL SUM secured by Bill of Sale, 286 (.see " Statutory Form "). INDEX. 371 PRIORITr OF BILLS OF SALE according to dates of registration, -4, 68, 198. outline of former law, 75 — 77. provision not limited to bankruptcy or execution, 224. comment on Lyons v. Tuckei; 225. provision applies to Absolute Bills of Sale as well as Bills of Sale in securitv, 225. does not prevent granting of successive Bills of Sale, 226. comment on Tiicl- v. Southern Counties Deposit Banl-, 225, 226. excludes equitable doctrine of notice, 226. does not apply to mortgages of land comprising fixtures or growing crops, 226. application to mortgages including trade machinery, 226. over substituted fixtures, plant, or trade machinery, 104. PRIVILEGE of solicitor, 117. PRODUCE not removable from farm not personal chattels, 150, 166. PROMISSORY NOTE taken as collateral security, 63 (see " Defeasance ")• PROOF by Bill of Sale holder in bankruptcy of grantor, 132. PROTECTED TRANSACTIONS in bankruptcy, 125, 126. PUBLICATION of copy of register, 317. copyright in compiled list of Bills of Sale, 317. RATE OF INTEREST (see "Interest" and " Statctory Form"). RATES (POOR AND OTHER PAROCHIAL) : chattels not protected against distress for, 313. quxre as to general district rate, 314. RATES AND TAXES : covenant by grantor to pay, is a term for maintenance, 298, 299. may be a necessaiy covenant, 308. to pi'oduce receipts for, 299, 300. whether necessary, 307. payments by grantee in respect of, may be charged on chattels, 298, 299. and made repayable on demand, 298. but not recoverable by seizure, 299, 306. distress for, a cause of seizure, 260. non-production of receipts for, when a cause of seizure, 260, 266. REAL AND FICTITIOUS TRANSACTIONS, 30—44 (see "Fictitious Trans- actions "); 372 INDEX. RECEIPT FOR PURCHASE-MONEY OF GOODS: when an assurance, is a Bill of Sale, 149, 151. test of necessity for registration, 151, 152 (.see " Sales"). mere receipt not within Acts, 11, 13. when used as secui'ity for money, 152 {see " Fictitious Transactions "). accompanying delivery of possession, 48 (see " Pledge "). RECEIPTS FOR RENT, RATES, AND TAXES : non-production of, when a cause of seizure, 260, 266. covenant to produce, is a term for maintenance, 299, 300. whether necessary, 307. RECEIVER on behalf of grantee, 61. RECITALS in Bill of Sale, 284. RECTIFICATION OF REGISTER : application for, how made, 232. order for, 232, 233. form of order, 331. REDEMPTION in cases of pledge or mortgage, 45. of Bill of Sale in security for money : implied right to redeem, 59, 66, 67. not excluded by summary remedy under Section 7, 269, 313. who may redeem, 67, 69. interest recoverable, 61, 62. damages allowed in suit for redemption, 67. custody of Bill of Sale after, 68, 304. REGISTER OF BILLS OF SALE : definition of, 230. particulars to be entered in, 230, 231. particulars to be entered on renewal of registration, 231. form of, 244. omission or mis-statement in, 232. rectification of, 232. business of, performed in Central Office, 232. publication of copy of, 317 (see "Inspection," " Registkau," " Satisfaction, and " Search"). REGISTRAR OF BILLS OF SALE: Masters of Supremo Court to be, 232. duties of, ministerial, 213. INDEX, 373 REGISTRAR OF BILLS OF SAL'E— continued. duty as to stamp, 213, 239. power of, to order entry of satisfaction, 234. duties as to local registration, 310, 311. to transmit abstract of Bill of Sale to county court registrar, 310. effect of omission, 311. to transmit abstract of re-registered Bill of Sale, 311. to transmit notice of satisfaction, 311. REGISTRAR OF COUNTY COURT: abstracts and notices, when to be sent to, 310. duties as to local register : to number, file, and keep abstracts, 310, 311. to keep index, 310, 312. to enter notice of satisfaction, 312. to allow search and inspection &c., 310, 312. to provide office copies, 312. REGISTRATION not necessary before 1854, 190. how Bills of Sale could be defeated before that date, 190. introduced for protection of creditors, 2. of Absolute Bill of Sale (under Act of 1878), 188. necessary within seven days 188, 198 (see "Absolute Bills of Sale "). effect of bankruptcy or execution within seven days, 189, 193. wlien time expires on Sunday &c., 241. protects chattels from grantor's order and disposition, 240 (see " Reputed Ownership"). of Bill of Sale in security for money (under Act of 1882), 269. necessary within seven clear days, 269 (.see "Bill of Sale in Security FOR Monet"). reckoning of time, 241, 269. Bills of Sale executed out of England, 269. does not protect chattels from distress for rates and taxes, 313. copy of Bill of Sale, schedule, and attestation, to be filed with registrar, 198,200 (see "True Copy"). affidavit to be filed with registrar, 198 (see " Affidavit on Regis- tration "). fees on, 239. date of, 231. extension of time for, 232. form of order, 331. proof of, 236, 237. when action lies for wrongful, 189, 269. (See " Local Registration " and "Renewal of Registration "). 374 INDEX. REMOVAL : covenant not to remove chattels from premises is a term for main- tenance, 300, 301. may be necessary for maintenance, 307. former interpretation of, 266. fraudulent, a cause of seizure, 260 (.see " Fraudulent Removal " and " Seizure "). of chattels after seizure, 313. object of five days' respite, 313. removal with consent of grantor, 313. chattels seized in public place, 313. RENEWAL OF REGISTRATION not necessary before Act of 1866, 141. now necessary every five years, 229. Bill of Sale registered under Act of 1854, 242. Bill of Sale void for want of renewal before 1879, 242. when time expires on Sunday &c., 241. consequences of non-renewal, 229. affidavit to be filed with registrar, 229, 230 (see " Affidavit on Renewal of Registration "). particulars to be entered in register, 231. fees on, 239. extension of time for, 232 — 234. form of order, 331. proof of, 236, 237. not necessary on transfer or assignment, 229, 230. abstract, when to be transmitted to local registrar, 311. RENT: distress for, a cause of seizure, 260, 263 (see " Distress " a^id " Seizure "). non-production of receipts, when a cause of seizure, 260, 266. covenant by grantor to pay is a term for maintenance, 298. and may be necessary for maintenance, 266, 308. payments by grantee for, may be charged on chattels, 298. and made repayable on demand, 298. but not recoverable by seizure, 299, 306. covenant by grantor to produce receipts for, is a term for maintenance, 299, 300. what is " fair and reasonable," 183, 184 (.see " Attornment "). REPAIR : covenant to keej) chattels in, is a term for maintenance, 301. and may be necessary for maintenance, 308. REPEAL of Acts of 1854 and 1866, 242. how far these Acts continue in force, 242. INDEX. 375 B^EPEAL— continued. of Sections 8 and 20 of Act of 1878, 314. limited nature of repeal, 249, 314. REPURCHASE : condition of, on sale of chattels, 30 et seq. distinguished from right to redeem, 248. REPUTED OWNERSHIP : provisions of Section 44 of Bankruptcy Act, 1883, 127. what possession satisfies the Section, 127. possession of grantor " in his trade or business," 127. reputation of ownership a question of fact, 127. exclusion of reputation by evidence of trade custom, 128. what is consent of true owner, 128. application of Section determined by true owner taking possession, 128, 129. by notoriety of change of property, 129. by withdrawal of true owner's consent, 129. critical date is commencement of bankruptcy, 241. taking possession after bankruptcy, when a protected dealing, 129, 130. distinguished from apparent possession, 241. doctrine of, how related to Bills of Sale Acts, 126, 314—316. Under Act of 1854 : registration made no difference, 241, 314. Under Act of 1878 (Section 20) : registration excludes reputed ownership clause, 240. reputed ownership clause does not apply during seven days allowed for registration, 240. Section 20 protects transferee equally with grantee, 229. Under Act of 1882 : effect of repeal of Section 20 of Act of 1878, 315. decision in hi re Stanley, 315. absence of English authority, 315, 316. reasons of law before Act of 1878, 316. consequences of statutory redemise under Section 7 of Act of 1882, 316. reputed ownership may apply after right to seize has arisen, 316. Under Acts of 1890 and 1891 : saving of reputed ownership clause, 325. saving not now necessary, 325, 326. RESCISSION of Bill of Sale by agreement, 195. RESIDENCE: description of, in affidavit filed on registration, 198 (see " Affidavit on Registration "). object of description, 202. description " to best of belief " of deponent, 202. at time of swearing affidavit, 203. 376 INDEX. RESIDENCE— cowfMwed. of attesting witness, described in introductory part of affidavit, 202, 203. described by reference to copy Bill of Sale, 203, 207. place of business is, 203. sufficiency of description, 203. test of sufficiency, 20-i. insufficiency supplemented by reference to copy Bill of Sale, 204. inaccurate description, when material, 205, 206. statement when person has several residences, 206. of grantor, when described as out of London Bankruptcy District, 310 (see "Local Eegistration "). RULES : meaning of " prescribed," 151. for purposes of Acts, how made, 241. under Acts of 1878 and 1882, 238, 311, 312. for search, 317. for search under Conveyancing Act, 1882, 336. as to entry of satisfaction, 234, 235. SALE (in relation to Bill of Sale in security for money) : grantor has no implied power of, 58. outline of law prior to 1882, 73—75. grantee's implied power of, 58, 59. arises after five clear days from seizure, 260, 313. implied trusts of proceeds, 60, 303. express power may be inserted in Bill of Sale, 302. by private treaty or public auction, on or off the premises, 302, 303. trusts of proceeds, 60, 303. commission of auctioneer-grantee, 303. power to purchase at valuation, 303. stipulation that purchaser not bound to inquire as to default, 61, 303. liability of grantee for, 60, 61. order for, in interpleader, 68. SALE OF CHATTELS followed by hiring agreement or condition of repurchase, 30 et ser/. by auction may be within Act, 10, 189. in ordinary course of business (.see " Transfer"). under writ of execution (ace " Sheriff "). SALES: documents accompanying, 6 et seq. parol contract not aff(!cted by Acts, 4, 6. when purchaser's title is dependent on document, 7. instrument of transfer, 7. record of transaction made or sti])ulatod for at the time, 7, 8. principle of Ex parte Cooper, 7. illustrative cases, 8 — 11. INDEX. 377 SALES — continued. principle of Marsden v. Meadows, 11. illustrative cases, 11 — 17. sales involving transfer of po.ssession, 17 — 19. reservation of Hen or charge, 19, 158. SATISFACTION : entry of, 234, 235. form of consent, 332. form of affidavit, 332. affidavit need not be made by solicitor, 235. form of summons, 333. form of order, 333. fee for entry of, 235, 239. notice of satisfaction to be sent to local registrar, 311. to be entered in index, 312. form of notice, 335. of Absolute Bill of Sale. 235. of Bill of Sale in security for money, 235. by release of debt in bankruptcy, 235. custody of Bill of Sale after, 68, 295, 304. Bill of Sale cannot be set up against execution creditor after, 68, 235, 236. distinguished from being " exhausted and spent," 226—228, 236. SCHEDULE to Bill of Sale must be registered, 198. catalogue referred to in schedule, 200, 252. (1) to Absolute Bill of Sale: is not necessary 23, 200. construction of deed where no schedule exists, 23, 24. construction of schedule in relation to operative words of deed, 24—26. (2) to Bill of Sale in security for money : must be annexed to or written on Bill of Sale, 249. execution of Bill of Sale at foot of, 250, 309. absence of, vitiates Bill of Sale, 250, 309. must contain inventory of chattels, 249. Bill of Sale has effect only in respect of personal chattels specifically described in, 249. gwa-'re as to inclusion of other property, 250, 251. Bill of Sale is void, except as against grantor, in respect of personal chattels not specifically described, 249. specific description, what is, 251 — 253. place where chattels are situated, 311. saving as to growing crops, 255. how explained by Privy Council, 256. difficulties of this view, 256. 378 INDEX. SCHEDULE— confin?ie(J. quxre whether saving applies to substituted fixtures &c., 258. effect of schedule as between grantor and grantee, 250. {See also " True Owner.") SCOTLAND : Acts do not extend to, 242, 324. law of, as to securities on movables, 243. English Bill of Sale over chattels in, 163. SEARCH in Register of Bills of Sale, 316. oflBcial search, 317. form of prxcppe, 336. fees, 317. official search under Conveyancing Act, 1882, 317. rules, 336. forms, 337—340. in local register, 310, 312. SECURITIES dependent on possession, 45 — 52. are not within Acts, 148, 149. delivery of possession a question of fact, 153. SEIZURE prohibited by Act of 1882, except in certain events, 56, 259. outline of former law, 70 — 72. effect of statutory redemise on doctrine of reputed ownership, 314 — 316. failure to exercise right not evidence of fraud, 116. express powers of, may be inserted in Bill of Sale, 302. but are not controlled by final proviso, 304, 308. if attached to covenant which is not necessary for maintaining the security the Bill of Sale is void, 263, 296, 304. construction of express power in this respect, 304, 305 (see " Necessary FOR Maintaining Security"). chattels not to be removed or sold for five days after, 313. wrongful, liability of grantee for, 56, 57. SEIZURE, CAUSES OF : enacted by Act of 1882, 259. (1) default in payment, 259. meaning of, 261, 262. gives right to seize for whole sum due, 262. default in ])erformance of covenant necessary for maintaining security, 260, 263. does not apply to breach of negative covenant, 263 (see "Necessary FOR Maintaining Security"). INDEX. 379 SEIZURE, CAUSES OF— continued. (2) bankruptcy of grantor, 260, 263. does not apply to composition with creditors, 263. distress for rent, 260, 263. rent payable in advance, 263. distress for rates or taxes, 260, 265. (3) fraudulent removal of goods from premises, 260, 265. fraudulent intention a question of fact, 265. grantee's rights as against landlord, 266. (4) non-production of receipts, without reasonable excuse, on demand in writing, 260, 266. not equivalent to nonpayment of rent, 266. (5) levying of execution, 260, 267. action against execution creditor, 267. claims in interpleader, 267, 268. proviso as to restraining removal or sale, 260, 268. applies to seizure under Bill of Sale registered before Act of 1882, 268. when the cause of seizure " has ceased to exist," 268, 269. application to set aside injunction, 269. redemption after the five days, 269 (see " Redemption "). "SEPARATELY ASSIGNED OR CHARGED": fixtures and growing crops are personal chattels when, 150, 165. argument that "fixtures" here include trade machinery and "excluded machinery," 165, 173, 185 (see " Excluded Machinery " and "Trade Machinery"). rule for construing term, 184. omission of copyholds, 185, 186. probable result of omission, 186. rule of construction made retrospective, 184, 242. retrospective effect of rule as to fixtures, 186, 187. diflSculty as to growing crops, 187. SETTLEMENT : im^ierfect voluntary, not construed as declaration of trust, 21. post-nuptial, requires registration as Bill of Sale, 22. voidable in bankruptcy, 123. application of Section 47 of Bankruptcy Act, 1883, 124. consequences of avoidance, 124. (See "Marriage Settlement" and " Post-Ncptial Settlement"). SHAM TRANSACTIONS (see "Fictitious Transactions"). SHARES in capital or property of company not personal chattels, 150. SHERIFF : sale by, under execution, 6, 26. when inventory &c. is a Bill of Sale, 10. when not a Bill of Sale, 12 — 15 (see "' Sales "). 380 INDEX. SHERIFF— confmHecZ. Bill of Sale by, how executed, 26. colourable purchase of goods from, 115, 116. possession of, when it excludes reputed ownership, 129. whether it excludes apparent possession, 170, l7l. when execution creditor is liable for acts of, 267. SHERIFF'S OFFICER : unregistered Bill of Sale under Act of 1878 void against, 188. SHIP OR VESSEL, TRANSFER OF : excepted from definition of Bill of Sale, 150, 161. scope of exception, 161, 162. probable reason for exception, 162. mortgages of British ships, 162. SOCIETY registered under the Industrial and Provident Societies Acts is not a " company " 323. debentures issued by, 323. SOLICITOR : knowledge of circumstances of fraud, 116. evidence of, as to issue of fraud, 117. as to execution and attestation, 117, 199. must attest Absolute Bill of Sale, 197, 199 (nee "Attestation "). SPECIFIC PERFORMANCE of agreement to execute Bill of Sale, 55. of agreement to make or take loan of money, 55. SPECIFICALLY DESCRIBED : chattels must be, in schedule to Bill of Sale under Act of 1882, 249 (see " Schedule "). when chattels arc, 251, 252. SPENT : when Bill of Sale is, 227, 228. STAMP on Bills of Sale, 239. Bill of Sale not to be registered unless duly stamped, 213, 239. unstamped Bill of Sale, when admissible in evidence, 239. mere authority to act under Bill of Sale docs not require, 240. formerly required on separate schedule, 240. on memorandum of iiledgc, 49 (note). on policy guaranteeing jiayment by mortgagor to mortgagee, 64. INDEX. 381 STATUTORY FORM of Bill of Sale under Act of 1882, 324. applies to Bill of Sale in security for money, 280. non-compliance avoids Bill of Sale in toto, 280 {see "Bill of Sale in Security for Money"). tests of accordance with statutory form, 282. rule in Ex parte Stanford, 282, 283. material divergence not altering legal effect, 283. diflBculty of construing deed, 283. clauses of : date and parties, 283. description of parties, 283. address of grantor, 283. consideration, 284 (see "Consideration"). effect of recitals, 284. assignment of chattels, 284. assignment " as beneficial owner," 284. assignment to several grantees, 284, 285. scope of " chattels and things," 285 (see " Schedule "). enlargement of operative words, 285. assignment of after-acquired chattels, 285. assignment of chattels substituted under covenant for main- tenance, 286. assignment of substituted chattels protected by Section 6, 286 (see " True Owner "). place where chattels are situated need not be described, 286, 311. effect if place is described as out of London Bankruptcy District, 310. principal and interest secured, 286. the " condition contained in the body " of the statutory form, 286 (see " Defea.sance "). omission of words " by way of security," 286. Bill of Sale ex facie absolute, 286. statement of principal sum secured, 287. Bill of Sale to indemnify surety, 287, 291. Bill of Sale to secure future advances, 287. whether principal sum may include bonus, 287. whether principal sum may include interest on prior trans- actions, 288. statement of rate of interest, 288. stipulation making future interest payable on default, 288, 289. interest calculated in a lump sum, 289. rate per pound per month, 289. meaning of " rate of interest," 290. 382 INDEX. STATUTORY FOnU— continued. covenant for payment, 290. .stipulated times or time of payment, 290. time depending on demand, 291. time of payment uncertain, 291. jjayment otherwise than by instalments, 291. payment by instalments, 291. default clauses, 291, 292. (1) stipulation making principal due on default, 291. (2) stipulation for interest on overdue instalment of principal, 292. interest on interest illegal, 292 — 294. interest on principal already repaid, 293. instalments representing principal only, 292, 293. instalments representing interest only, 293, 294. instalments comprising principal and interest together, 294, 295. unintelligible provision for payment, 295. terms agreed to for inaintenance or defeasance of security, 295. insertion of terms not within this description, when fatal, 295, 296. " necessity " of covenant immaterial unless coupled with power to seize, 263, 296. construction of power to seize, 304, 305. meaning of maintenance or defeasance of security, 296, 297 (see " Maintenance or Defeasance " and " Necessary Covenants "). proviso as to causes of seizure, 308. does not control express power to seize, 304, 308. attestation clause, 308. address and description of witness, 309. execution of deed at foot of schedule, 309. absence of schedule, 309. STOCK (see "Farm Stock "). STOCK-IN-TRADE : Bill of Sale over, now struck at by enactmont as to after-actpiired property, 73, 253. grantor's jus disponendi formerly implied in, 73, 74. disposition of, " in ordinary course of trade," 255. SUBSTITUTED BILL OF SALE made within seven days after prior Bill to be absolutely void, 193. this provision strikes at mode of evading registration, 194. former law, 194, 195. meaning of " absolutely void," 194. validity of, 195, 196. fraud in procuring, 55, 195. statement of consideration in, 196, 271. when prior Bill of Sale may be set up, 196, 197. INDEX. 383 SUBSTITUTED FIXTURES, PLANT, OR TRADE MACHINERY excepted from rule avoiding Bill of Sale as to after-acquired chattels, 255. qiiwre whether excepted from rule as to specitic description in schedule, 258. modes of assigning or charging, 258, 259, 286. title of grantee, 104, 259, 286 (see aho " True Owner."). SUCCESSIVE BILLS OF SALE : priority of, 68, 198, 224—226. outline of former law, 75 — 77. rights of first and second mortgagees, 60, 69, 70. in bankruptcy, 132. title to grant second Bill of Sale, 103, 104. SUCCESSIVE INTERESTS IN CHATTELS, 102. SUNDAY : when time for registration expires on, 241. computation of, 313. SURETY : payment of debt by, 63. discharge of, by laches, 63, 64, 261. action against, when demand must precede, 64. Bill of Sale to indemnify, now void, 280, 287, 291. SURRENDER OF LEASE : how affecting Bill of Sale by tenant as to growing crops, 79. as to fixtures, 84. TAXES : Bill of Sale in security for money does not protect chattels from distress for, 313 (see also " Rates "). TIME for registration, seven days or seven clear days after execution, 188, 198, 269. how reckoned, 242, 269. when it expires on Sunday, 241. or day when office closed, 241. Bill of Sale executed out of England, 269. for renewal of registration, 229. extension of, 232, 233. not granted to defeat vested title, 234. for payment (see "Statutory Form"). for redemption, 59, 67. for removal of goods after seizure, 313. TITLE OF GRANTOR : want of title, 96. effect of writ of execution, 96, 97. by agency and estoppel, 97, 98. 384 INDEX. TITLE OF GUA^TOn— continued. voidable or defeasible interests, 99. joint ownership, 100. successive interests in chattels, 102. how affected by prior Bill of Sale, 103. (See also " True Owner.") TRADE MACHINERY : definition of, 172. exception of fixed motive powers &c. 172, (.see "Excluded Machinery"). not distinguished from fixtures befoi'e 1878, 8.5, 173 (see " Fixtures "). not excepted out of aifirmative rule as to fixtures, 173. instrument " separately assigning or charging " is a Bill of Sale, 173. meaning of separately assigned or charged, 184. semhle, this definition applies to trade machinery, 185. excepted out of negative rule as to fixtures, 173. conveyance of land when passing trade machinery, 74, 178 (.see " Fixtures"). test of necessity for registration — principle of Iv re Yatet;, 174, 175. dictum in In re Yates questioned, 176. applications of principle, 176 — 178. different views as to operation of Act of 1882, 174 (see "Deemed to be Bill of Sale "). quaere whether definition is retrospective, 186, 187. substituted for trade machinery specifically described in schedule to Bill of Sale under Act of 1882, 255 (see " Substituted Fixtures " and " True Owner"). TRADING COMPANY: Bill of Sale by, 107 (see " Incorporated Company"). TRANSFER of chattels, when an assurance, is a Bill of Sale, 149, 151. of goods in ordinary course of business excepted from definition, 150, 162. cases of hypothecation to bankers, 156, 162. dicta as to scope of excei^tion, 163. of Bill of Sale does not require registration, 64, 198. does not make it necessary to renew registration, 64, 229, 230. distinguished from sub-mortgage, 65. equitable sub-mortgage, when equivalent to transfer, 228. distinguished from sale under power of sale, 65, 227, 228. distinguished from new mortgage by grantor, 65, 66. distinguished from new Bill of Sale by grantee, 227. comment on Chapman v. KnigJit, 227. after 1854 of Bill of Sale executed before 1854, 242. of debts secured by Bill of Sale, 64. of charge given by incorporated com])any, 65, 323. INDEX. 385 TRUE COPY of Bill of Sale, schedule, aucl attestation to be filed with registrar, 198. clerical errors in, 200. TRUE OWNER: Bill of Sale in security for money now void, except against grantor, as to chattels specifically described in schedule, of which grantor not true owner, 253. this rule not limited to after-acquired chattels, 253. when grantor is, 254, 255. undivided share in chattels, 254. equity of redemption, 254. equitable interest in settlement, 255. legal title of trustee, 255. goods bought but not paid for, 255 (see also " Title of Grantor"). qmere whether saving applies to growing crops, 255, 257. distinction between tenant of land and stranger, 257. possible application of saving, 257, 258. saving as to substituted fixtures, plant, and trade machineiy, 255. meaning of " plant," 258. instruments dealing with trade machinery, 258. quxre as to exemption from specific description, 258. mode of charging substituted fixtures, &c., 258, 259, 286. title of grantee, 104, 259. comment on Seed t\ Bradley, 259. (See also " Reputed Ownership.") TRUST, DECLARATION OF : Bill of Sale given subject to, 1. is within Act of 1878, 147, 148. must be registered as part of Bill of Sale, 198. means trust in favour of grantor, 213. trust in favour of third party, 214, 215. effect of omission to register, 216 — 221 (.see " Defeasance "). sale of goods subject to, 33, 39, 40. TRUST, DECLARATION OF, WITHOUT TRANSFER : of chattels, may be by parol, 21. when an assurance, is a Bill of Sale, 21, 149, 151. TRUSTEE : Bill of Sale given to, 214, 215, 285. TRUSTEE IN BANKRUPTCY generally takes same title as banki-upt, 126 (.see " Jurisdiction"). relation of trustee's title, 125. unregistered Bill of Sale under Act of 1878 void against, 188 (see "Absolute Bills of Sale "). CC '^S6 INDEX. UNDERTAKING as to damages, 62. UNDISCHARGED BANKRUPT : Bill of Sale by, 99. VESSEL (see "Ship"). VOID BILL OF SALE : remedy for sale under, 57. payments made imder, when recoverable, 133. VOIDABLE SETTLEMENTS : provisions of Section 47 of The Bankruptcy Act, 1883, 123. VOLUNTARY SETTLEMENT : when a Bill of Sale, 21, 22. fraud in, 111 (see " Fraudulent Conveyances "). WAIVER by grantor, of right of action for wrongful sale, 57. by grantee, of right to seize and sell, 58, 262. WAREHOUSE-KEEPER'S CERTIFICATES excepted from dednition of Bill of Sale, 150. WARRANT OF DISTRESS (see "Distress"). WARRANTS OF ATTORNEY : Act requiring filing of, 213, 222, 235. WARRANTS FOR DELIVERY OF GOODS excepted from definition of Bill of Sale, ] 50. WASTE : Damages allowed for, in suit for redemption, 67. WHARFINGER'S WARRANT not within Acts, 46. WITNESS (see "Attesting Witness"). WORKSHOP (see "Factory"). WRIT OF EXECUTION : effect of, on title to grant Bill of Sale, 96, 97 (sco Execution "). WRONGFUL REGISTRATION : when action lies for, 189, 269. Mnrks ntt C0mpang lalti antr ^Prattia it^r. PDBLISHED BY JORDAN & SONS, LIMITED. ) ♦ » ♦ < Nineteenth Edition, Price 5s. net ; by Post 5s. 6d. A HANDY BOOK ON THE FORMATION, MANAGEMENT, AND WINDING UP OF JOINT STOCK COMPANIES. By WILLIAM JORDAN, Registration and Parliamentary Agent, and F. GORE-BROWNP], M.A., of the Inner Temple, Barrister-at-Law. " The style is easy and perspicuous, and we should imagine, that it is just the book which every Secretary of a Limited Company would like to have constantly ready at hand as a guide in all cases of difficulty arising in the management of the affairs of his undertaking. Every branch of the subject appears to be dealt with, and a capital index provides a means of ready reference." — Law Journal. " The aim of the book is to be, in the words of its Authors, ' a trustworthy Guide to Shareholders, Directors, Promoters, Secretaries, Officers, Liquidators, and Creditors of Companies, as to their duties and rights.' The book is at once handy and exhaustive. There is no overwhelming flood of detail, and yet nothing of importance is omitted. 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A c()ni2)ilatiou of the essential ftnitures of the Statutory Law regulating the Formation, Management, and Dissolution of General Business Corporations in America (North, Central, and South), and other Countries of the World; with Special Digest of the United States Street Railway Laws; Ti-eatise on Receiverships; and Synopses of the Patent, Trade Mark, and Copyright Laws of the World. Edited by CHARLES L. BDUraiEYER, oF Iho New Jersey Bar, Newark, N.J. (JORDAN & SONS, LIMITED, are the English Publishers of and Sole Agents for this Book.) DRAFT FORMS OF MEMORANDUMS AND ARTICLES OF ASSOCIATION. =^>-&= Messrs. Jordan & Sons, Limited, beg to announce that, in com- pliance with numerous requests, they now supply Draft Forms of Memoi-andums and Articles of Association suitable for various kinds of Joint Stock Companies. In order that these Drafts may be as reliable as possible, they have been carefully settled by Mr. F. 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