TENTH EDITION ^v^' 1MLI.S or SALE ACTS, 1S7S & 1882. II h K lil \< \ Kl'. HI) • M)« 'N \VATKKIX)\\ in<()S. & lAVTON, 11 T R.'Z-S/S't, 1895 THE LIBRARY OF THE UNIVERSITY 0¥ CALIFORNIA LOS ANGELES SCHOOL OF LAW ./k lU'^'X^ , THK BILLS OF SALE ACTS. EPITOME OF THE LAAV AS AFFECTED BY THE ACTS. BY HERBERT REED, OF THK INXKK TKMIM.K. OXK OK IIKK MA.ir.STY's COIVSEL. T E NTH EDITION LONDON ; WATKHLOW BROS. A LAVTON. UMITKH, 24, IMIICIIIN" i..\NK, E.C. 1895. LONDON : wat?:rlow liuos. & i.ayton, ltmitkd, printers, BIRCHiy LAKE, AND BHOKEX WHARF 42, UPPER THAMES STREET, K.C. ^ T PREFACE TO THE TENTH EDITION. It is the object of tlie following pages to present a short statement of the law of bills of sale, as atfecteil by the Bills of Sale Acts, 1878, 1882, 1890 and 1891. Tli.- Acts will be found printed together, as they are to be so construed. Under each section are collected such cases as involve points of practical importance, and in the interest of those at a distance from reports, a full extract of material facts has been given in dealing with recent decisions. A reference to contemporaneous reports will be found in Ihe first citation of each authority. Ill the Appendix will be found the Statutes, Orders, and Rules, relating to bills of sale, together with precedents. To these have been added extracts trom hills of sale hitherto contested under section nine, shewing the present judicial views of accordano** with the scheduled form. 7'19^B: o» iv PREFACE TO THK 'I'KNTil KDITION. The decisions tliroiigliont the work will be found noted to December, 1894. H. R. 1, Temple Gardens, December, 1894. (JONTEN'rS. The Bills of Sak- Act. 1878 Section 1. Short titl»- 2. ("uiniiU'iK-eineiit '•'). Aj)i»licati()ii of Act 4. Interpi*etation of terms •'j. Tnulf nuu'hinery ... 6. Instruments j;ivin<< powers of dis tress 7. Separate assii^mueiit of fixtures and Sfi"Owin<^ crops 8. Avoidance of unregistered bills of sale 9. Avoidance of >uccessive bills of sale 1<>. Mode of r<'gisterin«; 11. Renewal of registration 12. Form of register ... 13. The j-cgistrar 14. Rectification of register 15. Phitrj- of sjitisfaction 16. Office copies and proof 17. Affidavits 18. Fees 19. Collection of fti's ... 20. Order and disposition 21. Rules 22. Time for reiristration 3<) 31 31 4-) 8V» in i'9 IIM i:.5 17ti 20o 2<»y 212 21 :{ 215 218 225 228 2:V2 23:; 24'J 241 vi CONTENTS. PAGE Section 23. Repeal ... ... ... ... 241 24. Extent of Act ... ... ... 242 The Bills of Sale Act (1878) Amendment Act, 1882. Section 1. Short title ... ... ... 30 2. Commencement of Act ... ... 31 3. Construction of Act ... ... 37 4. Bill of sale to have schedule of ])ro- perty attached thereto ... ... 77 5. Bill of sale not to affect aftei'- acquired property ... ... 83 6. Exception as to certain things ... 92 7. Power to seize in certain events oidy 104 8. Bill of sale to l)e void unless attested and registered ... ... ... 123 9. Form of bill of sale ... ... 156 10. Attestation ... ... ... 175 11. Local registration of contents of bills of sale ... ... ... ... 207 12. Bill of sale under £30 to be void ... 211 13. When chattels may be removed or sold ... 211 14. Bill of sale not to protect chattels against taxes and rates ... ... 215 15. Repeal of part of Bills of Sale Act, 1878 ... 217 16. Inspection of i-egistered bills of sale 221 17. 18. Debentures to which Act not to apply •■• Extent of Act 222 242 Schedule... 260 The Bills of Sale Act, 1890. Section 1. Exemption of letters of hypothecation from s. 9, Amendment Act ... 261 2. Saving of re])iited()\vnershi]) clause... 240 3. Short title ... ... ... 30 Tl.c Bills of Sale Act, 1891. Section 1. Exemption of securities on imported goods from Bills of Sale Acts ... 174 2. Short title ... ... ... 30 CONTKNTS. An 1 Mm \. — Slututos, Rtilcs, and Forms roliitiiiij to l)ills of Kuk-. Pint 1.— Stiitutrs iiiid Kill. >. TIm- Bills of Salt- Act, 1878 ... ... 217 Thf Bills of Sale Act (1878) AiiiciKiiii.nt Act, 1882 ... ... ... ... 2:.t) The Bills of Sale Act. 189U ... ... 2t)l The Bills of Sale Act. iM'tl ... ... 2ti2 Rules of the Supreme Court. 188:!, Order LXl.... ... ... 2ti:l Rules of the Supreme Court, Bills of Sale Acts. 1878 and 1882 ... ... 2t;.". Centrjil Office Practice Rules ... ... 2«>7 Rules under s. 2. Conveyanciu"; Act, 1882 2H7 Part li. — Forms relating to hills of sale: — No. 1. Affidavit on registration of 1)111 of sale ... ... ... 2ti'.» No. 2. Affidasit on registrati. Affidavit of ex(>cution of absolute bill of sale by way of inventor}' and receipt ... ... ... 27! No. 4. Declaration by grantor against incumbrances ... ... 272 No. •'<. Foiui of register ... ... 2"'"' No. 6. Searcli ... ... ... 27:5 No. 7. Affidavit on renewing registration *5o No. 8. Affidavit for order to enter satis- faction ... . . ... 2/:'. No. !*. Consent to satisfaction... ... -71 No. lU. Summons to enter satisfaction ... 2/1 No. 10a. Order thereon ... ... 2i'.'. No. 11. Abstract, jjocal registration of bills of sale ... . . ... 27. I'M!) l.'.l )°>l «;t). g.H Albert r. The Grosveiior Investment Co. (1HG7), Q.H. Alexamlcr, >ip.. ri' Kslick (lS7t>)' Hiicon, C). ... Allam, ,''vp., r,' WnVht (1876), C.A Arnold, o' (1891), t^.H.D Ashford -•. Tiiite (1857), CM». (Ireland) Ashton-A Corrigan(1851),\Vick('n8, V.C. Ashtonr. Biackshaw (187(1), Malins, V.C. C.L' Askew f. Lewis (1888), Cave, J I'U Asphaltie, &c.,Co., *7!(1.S.S3), Bacon, V.C. L'l'.'. Astbury, « 47)., ct; Richards (18G9), Ch. Ap '.'1' Attenborough c. Thomjison (1857), E.\. ... ttwater, ea^p., /e Turner (1870), C.A. ... Bach r. Meats (181(J), K.H. BadKer v. Shaw (1800), (^.B Baghott V. Norman (1880), -Malins, V.C. Baxnall r. Villar (1879), Hall, V.C. Bagot I'. Arnott (1807), C.P. (Ireland). Baker v. Richanlson (1858), Kx. ... Baldwin v. Cawthorne (1812), Eldon, C Banlmry »•. White (iMo."}), E.\ Bansha, Ac, Co., re (1889) Ir Barehiy, erp., »e Joyce (187 !■), Ch. Aji. ... Bardell f. Daykin (1887), g. B.I) Harj^en, enp., r>' Hasluck (189.S), Williams, J. Barker c. Aston (1858), N.I'., Coleridge, .1. Barker r. Dale (1858), N.P. Pollock, CB. Barker -•. Furlong (1.S91). Konier. .1. \Si 1 10, 122 112 ■S.i 1 •)> >. !tS Ito S2 :v.t 185, ISM l.-.s luj 172. :i'.>7 150, 168. •Jss 2:4), (^.H. Uniiiloni '•. (JrirtithH (1H77). CMM). UrcKiiovich i'. Lpvihoii ( 188i»), g. H.l). lireton v. Copt' (I7i>l), Kciiyon, C.l.. N.l'. Browin v. Short (IK.'}.')), g.» Briorley r. Kendull (lHr)2), Q.H. ... MriKf,'H r. Hobs (IH(JK), g.M. HriggH v. Pike (1892), C.A. Hriggs tt Spicer, /•.■ (181)1), StirlinK. J. Bright, e.vp., re Smith (187!*), C.A. Brighty >•. Norton (18()2), g.B. ... Brigniill >: Cohen (1872), K.v. Ch. . Bringloc r. Gooflson (IKJIt), C.P Broiidwood, rip. (IHU), Sir J. Cross. Brockh'hin-si r. Railway Printing, &f., Co. (1884), Fiel< Brodrick c. Siiilo (1871). C.U Brooke r. Hrooke (18!»i). Kokowich, J Brookes r. Harrison (1880) C.A. (Irelai.il ). Brooks, e.q)., re Fowler (1883), C.A Brown, erp., re Keed (1878), C.A. Brown, c.vp., re Vunsittart (1803). Williams, .1. Brown, «.i'p., re Yates (1870), C.A. Brown c. Hatenian (18(17). C.I' Brown r. Blaine (1881), Wills, J Brown r. Hiekinbothani (1881), C.A Brown c. London & County Advance Co. (1889) Field Brown -•. Metropolitan Counties Society (18o;»). g.U. "Browne c. Cole (1845), Shudwell, V.C Browne f. Fryer (1882), C.A Back, e,rp., re Faweus (187ti). Bacon, C..I. Bulmerr. Hunter (18t]'.i), Malins, V.C Burdekin r. Potter (1811), Ex Burgess, c..;}., re Hood (1803), C.A. Burrell. ^"171., rr Kohinson (187tj). C..\. Burroughs r. Williams (1878), Hall, V.C. Burton, exp., re Tunstull (1879), C.A Butcher I'. Stead (1875), H.L Batters, e.vp., re Harrison (1880), C.A. Battonr. O'Neill (1870), C.A Byerleyr. Prevost (1871), C.P Byrne, exp., re Burdett (1888), C.A , .1. J. ISI IM '.'I «)0 IM 01 . 1 .1 1 KiH l.Vi 220 230 U17 IK7 280 • U 237 IMS 1 3.-, 220 1 1 HI 223 1st; 10:1 ■i\ SM l.jl 61 1 o-J ."it; .•.1 3(> 18(» kn; S'.l 237 (;3 107 IS :»•; 1 1.'. I \u I .'.2 liHI i.x C.\POGVN i\ Kennett (1776), K.B. Culdccott, exp., re Majilehaek (1870), C.A. Call I-. Dunning (1803), K.B Calvert r. Thomas (1887), C.A. .. Catnpanari »•. Woodhurn (I80I), CM'. Campitm r. Cotton (1811), Grunt, .M.K. ... Carpenter r. Deen (1889), C.A |:ts i:.i 22n 172, 17;!. 2'.t7 «;3 70, So, 10 1 12 CASES CITED. V\C,K CaiT c. Acraniaii (1850), Ex. .. ... ... ... ... 55 Ciiri-r. Allatt (1858), Ex 86 Garrard r. Meek (188U). C.P.D 128,155 Carruthera r. Payne (1828), C.P 287 Carter, exp., re Threappleton (1879), Bacon, C..J. 127, 181 Carter r. Wake (1877), Jessel, M.R 104 Cartwright, e.cp., re Joy (1881), C.A 150 Oasson v. Churchley (1884), Q.B.D 62,170 Castle, exp. (1842), Knight Bruce, C.J 68 Castle y. Downton (1879), C.P.D. 190 Central Bank r. Hawkins (1890), Q.B.D. 189 Challinor, eup., re Rogers (1880), C.A 124,131 Chaplin, exp., re Sinclair (1884), C.A 124 Chapman c. Knight (1880), C.P.D 34,204 Chapman, exp., re Davey (1881), C.A 188, 190 Charing Cross Bank, e.K^^., y-e Parker, (1880), C.A 132 Charlesworth v. Mills (1892), H.L 42, 43, 55 Cheney y. Courtois (1863), C.P 181 Chesworth ('. Hunt (1880), C.P.D 202 Chidell I'. Galsworthy (1859), C.P 55 Church i>. Sage (1892), Wright, J 57 Clark r. Crownshaw (1832), K.B. 68 Clarkson v. Henderson (1880), Hall, V.C 286 Clater, ex^., re Wilkinson (1883), Bacon, C.J. ... ... ... 145 Clements v. Matthews (1883), C.A 68,87,103,114 Clemsonv.Townsend (1884), Lopes, J 167,294 Climie V. Wood (1869), Ex. Ch 92 Climpson r. Coles (1889), Q.B.D 57,102' Close, eojjj., re Hall (1884), Cave, J 44,65,66 Cobum v. Collins (1887), Kekewich, J 53 Cochrane, erp., re Mead (1875), Bacon, C.J. ... ... ... 118 Cochrane r. Di.xon (1887), Q.B.D. 133 Cochrane v. Entwistle (1890), C.A 70, 78, 158, 164, 293 Cochrane i;. Moore (1890), C.A 127,141 Cochrane ■)'. Kyniill (1879), C.A 200 Cohen c. Higgins (1891), Q.B.D. 132 Cohen '(.-. Mitchell (1890), C.A 36 Cohen, ea!j?., re Sparke (1871), Ch. Ap 156,238 Cole r. Kernot (1872), Q.B. 86 Collins, exp., re Lees (1875), Ch. Aj).... ... ... ... 194 Collins, cip., re Yarrow (1889), Cave, J 51 Collis c. Tnson (1882), Q.B.D 134 Collyer c. Isaacs (1881), C.A 87,217 Colonial Bank ('. Whinney (1886), H.L 238 Coltman r. ChaniberlaiTi (1890), Q.B.D 65 Columbine V. Penhall (1853), Stuart, V.C. 63 Condy '•. Blaiberg (1891), C.A 116 Conelly r. Steer (1881), Q.B.D 197 Congreve 1'. EvcttB (1854), Ex. ... ... ... 86 CASKS ( irKit. 1:1 p tl>l Coiiiiint,', crp., re. Sli't-lc (\H7',i), Kacon, (.'..I. CuuHolidittc'd Credit Corp. i'. (iosnoy (INH&l. (^.I!.l> Coiisolidiitod Co. v. CurtiH (1892), Collins, .1. Cook .'. .loni'M (1H12), K.M Cook r. Tuy 1( )r ( 1 887 ) , C . .\ . Cookfloii f. Kryi-r (1858), N.I'., Willie, .1. CiM)kHoii r. Swiro (1884), U.L. ... -W, Coolo f. Bnilmin (18^W), Kx Coomlx- r. Ciirtcr (1887), C.A. CoombH r. Hcaiimoiit (l8.{:{), K.15. Cooper c. Hriilmni (I8(!7), l/.H. Cooper, e.i-i>., re Biiiiiii (1878), (;.,\. Coojwr c. Uiivi.s (18s:{), i).\i.\). ... Cooper I-. IbhiMson (I8SI), g.lM). Cooper r. Keiidrick (18S»), g.JM) Cooper c. Zofffrt (1883). C..\ Cooper, eii>., ri- '/uci-n (1875), Cli. A|>. Coote r. Jecks (1872), Macon, C.J. Coppock c. Bower (18;{8), K.\ Corbett r. Eowe (187G), Q.H.I) Corkhill r. Lrtnibert (1880), Q.H.D Cort V. Sajfar (1858). K.v Cotton, . My.. (1883), Q.H.D CoulHon I-. Dick.soM (I8i«)). C.A CouDHeil V. London & We.st minster liOitii Co. (1887). C.A. Courcier r. Bardili (1883), C.A Cowley V. Tyler (1881). Field, J Cox, exp., re Heed (1875), Hacon, C.J. ... Cracknall r. Janson (1877), Hall. V.C. ... Ci-amer <\ Gile.s (1883), N.I'., Lope.-. J Crantield c. Cranfield (1885»), Ireland Crawcour, p.r;»., re Hobcrtson (1878), C.A. Cmwcoiir c. Salter (1881), C.A. ... Crawshaw v. Harrison (1894), Q.B.D. Credit Co. c. Pott (188U), C.A Cremotti >•. Croin (1879), Q.B.I) Crew I'. Cumiiiing.s (1888), C.A. Crosse r. Weleh (1892), C.A. Crosser r. Maxwell (18H5), C.A. Cninberland, Ac., Co. <•. Maryport. .'te.. Co. (1N92), North. .1 Cuudy c. Lindsay (1878), ILL Ciiuuin);hani. re (1885), IVar.son. ,\. Currie r. Child (1812), N.l'., Kllenhoioiivh. C.J. Curtis V. Niili.pii;i] Bank cf Wales (IssiK. C.A Daomsh, exp. (1873). Ch. Aj.. Dana, erp., re I'arker (1881), C.A Darby r. Harri.s (1841), Q.B. Darvill r. Terry (18(51), Ex .V.I 17H. 29<> 13 t 1 1* t 1 til. 111 1 2S4 135, 137. 201. 2U5 1 13 ss 23K 205 Hi. i.'.<;. I4(> 1. Rees (188(3), C.A. Davies I'. Usher (1884), Q.B.D Davis ('. Burton (1883), C.A Davis c. Go.^drnan (1880), C.A Deffel 1-. Miles (1866), N.P., Blackburn, J. Deffell ('.White (1866), C.P Dewey u. Bayntun (1805), K.B Dickin, exp., >-e Pollard (1878), C.A Dickin, ea-p., re Waugh (1876), Bacon, C.J. Dobbin, re (1887), Q.B.D Doe V. Penfold (1838), N.P., Pattesou, J. Doe r. M. of Cleveland (1829) , K.B Doe r. Thorn (1813), K.B Dorman, e:cp., re Lake (1872), Ch. Ap. ... Dowling V. Steward (1885), Bacon, V.C... Downs u. Salmon (1888), Q.B.D Dresser V. Townsend (1886), Smith, J Dryden V. Hope (1860), Ex. Duck r. Braddyll (1824), Ex Duff c. Valentine (1883), Field, J Duignan, crp., re Bissell (1871), Ch. Ap.... Duncan V. Cashin (1875), C. P. Dyer, exp., re Taylor (1885), Cave, J. Dyer r. Green (1847), Ex Eatough, exp., re Cliffe (1880), Bacon, C.J. Edey, exp., re Cuthbertson (1875), Bacon, C.J Edmonds v. Blaina Furnaces Co. (1887), Chitty, J. Edmunds r. Wallingford (1885), C.A Edwards v. Edwards (1876), C.A. Edwards )'. English (1857), Q.B p]dwards c. Glyii (1859), Q.B Edwards r. Harben (1788), K.B Edwards r. Marcus (1894), C..\ Edwards /•. Marston (1891). C..\. Edwick V. Hawkes (1881). Fry, J Elliott '•. Freeman (1863), C.P Ellis, f'.op. (1876), C.A Emerson, ecp., re Hawkins (1871), IJacon, C.J. Emery, re (1888), C.A Emmanuel c. Bridger (1874), Q. M. Emmott '■. Marchant (1878),Q.B.I) England r. Cowley (1873), Ex England r. Oown.s (1S40), Langdale, .M.H. England r. :^Iar.sd.'n (1865), C.l' Evans, exp., re Edwards (1878), Bacon, C.J. Evans v. Roberts (1887), Kay, J. ... Evans y. Wright (1885), Ex. PAGK 80, 81, 180 75 134, 158 211 159, 164, 166, 294, 295 120, 134, 177 123, 175 191 80 152 56 213 220 220 283 236 81 190 166, 295 186 83 169, 288 235 62 238 83 138 239 222 113 59, 118, 123 122 147 142 193, 194, 195 162, 168, 287 107 179 145 50,237 . . . 75, 206, 214, 241 74 219 112 82 113 147 54 112 fASES CITED. i:. p(i. » Fawcktt 0. Foarno (18-W), (^|{ .. IK) F«>ti8t I'. RubiiiBon (1894), Konuir, J. ... 1S7 Fcnn !•. Hittlostoii (1851), K.\. .. . Ill F.Miloii r. Hlytlii> (18!K)). Q.IM) Hf). laC, liOC, Fow .■. Huckhousf (18.iH), g.|{. I.U Fowiiigs, .(p., (•<• Snovtl (1H8:M. t'..\. . I<»'. Fii'ld, »?.rp., ce Marlow (1880), ('.A ... I »7 Finlay, f.tp., ;v Linton (18l»3), Williams. .). ... ... .. l.'.T Firth, exp., re Cowbinn (1882), I'.A. .. I.n,i:i2 Fishor, ejp., re .\Hh (1872), C'li. Aji 14.". Fitzgerald c. Mellorsli (1892). Cliilty, . I. 2:11 Fitzpatrifk, r*- (18S6), Bank, .Ir 185.188 Fletelu»r,«.ip., <•« Bainbridg*' (1878), IJanm, C.J. ... 7l,2:ir, Fletcher, ej:p., r« Hart (1878). (".A l.-,3 Fletcher, «ip., r« Henley (1877), C. A ... 77.111 Fletcher !•. Manning (1814), K.\ 2a'.t Fletcher f. Marillier (1839), g.l{ 112 Flory r. Denny (1852), Ex 1."? Fonhlanque v. Lee (1858), CM*. (Ireland) 191 Ford r. Kettle (1882), C.A ISO Ford, e,i:p., re Caughey (1870), C.V. ... ... ... ... ;{♦» Forater c. Forster (1804), Pro! t 221 Fo88,e,rp., re Baldwin (1858). Cli. Ap 239 Foulger c. Taylor (1800), Kx 18:{. 18'J Fourdrinier, erp. (1882), C.A 122 Fowler f. Foster (1859), g.B 02 Foxley,exp.,reNni-8e(1808).Cli..\p 147 Fraser 1'. Thompson (1859), Cli. .\p. ... ... ... ... O.t Freeman r. Pope (1870), Ch.Ap 141 French v. Bombernard (1888) (^H.l) 5 16 CASES CITED. PAGE Gilroy V. Bowt>y (1888), Q.B.D 110,171,296 Gladstone r. Padwick (1871), Ex 140 Goklstrom v. Tallerman (1886), C.A 1(55. 168, 17u, 286,289 Goodchap r. Roberts (1880), C.A. 286 Goodyere r. luce (1611), K.B 283 Gordon, *v (1889), Q.B.D 68 Gough V. Everard (1863), Ex 74 Gongli r. Wood (1894), C.A 101 Grace c. Card (1890), g.B.D 48 Graham i\ Furber (1854), C.P 139.239 Graham t\ Wilcoekson (1876), Ex. D. ... ... ... ... 46 Grannell r. Monck (1889), Q.B.D. Ir 168,288 Grant v. Shaw (1872), Q.B. 186, 191 Graves, re, (1883), Hawkins, J 117 Gray I'. Jones (1863), C.P 188 Green v. Attenborough (1864), Ex. Ch 80, 192 Green r. Marsh (1892), C.A 42,58,95,96,98,157 Greener, e.vp., re Vane (1877), C.A. ... .. ... ... 145 Greenham ('. Child (1889), Q.B.D. 185 Gregg r. Wells (1839), Q.B 32 Griffin r. Union Deposit Bank (1887), N.P., Stephen, J. ... 78, 158 Griffith r. Blake (1884), C.A 118 Griffith, exp., re Wilco.xon (1883), C.A 148 Griffith r. Williams (1892), Q.B. D 125 Grigg '•. National Guardian Assurance Co. (1891) , Kekewich, J . 44, 67 Grindell V. Brendon (1859), C.P 180,219 Gugen c. Sampson (1866), N. P. Channell, B 186 Glimmer c. Adams (1843), Ex. ... ... .. ... ... 156 Hadden c. Oppenheim (1889), Q.B. D 164,293 Hale r. Allnutt (1856), C.P 147 Hale V. Metropolitan Omnibus Company (1859), V.-C. ...46. 139, 142 Halifax, &c-.. Bank, t'. Gledhill (1890), Kay, J 139 Halkett r. Enimott (1878), Q.B.D. 219 Hall r. Comfort (1886), Q.B.D 95, 96 Hall, eajp., re Cooper (1882), C.A 149 Hall, ea;p., ?"e Jacks(jii (1877), Bacon, C.J ... ... ... 156 Hall r. Smith (1887), C.A. 121 Hall, ei'p., re Townsend (1880), C.A 154,283 Hall, P -p., re Wood (1883), C.A 118 Hallas c. Robinson (1885), C.A N9, 201 flalliday, f/.7). (1873), Ch. Ap 148 Hailing, f,,iJ., re Haydon (1877), C.A 116 Hamilton I'. Bell (1854), Ex 237 Hamilton r. Chaiiie (1881), C.A 130 Hamlyu V. Betteley (1880), C.P.D 126 Hammond V.Hocking (1884), Q.B.D 169,288 Hams, re (1859), Bankr., Ireland 184 Hance v. Harding (1888), C.A 63 CASKS ClTKl). 17 Hiirdin^,', .'.ip., re Pnirln-othcr ( IH7M), Hucoii, CI '2-U llardiiiK c. Tingey (1S(!.-)), Kiiul.Tsl.-y, V.C. Iixi Harris, erp., re Jiiiin'H (1S7 1), Uafoii, I'.J. ... I"'* llarriH, crp., re I'ulliii^r ( 1H72), Cli. Ap. .. ... \'>*i HarriH I'. Rickott (IKoK), K\ 00,145 Hfirris .•. Trunmn (1HH2), C.A 23s HarriHon, .Mp., re B«>ttK (1H81), C.A 'M Harrison r. Blackburn (IKt! I). O.P .. XI Harrison -•. Blades (1H1:{), S.I'., Klleiiborougli, CI. 2:i!• Hawker, eip., r.' Kecli'v (1S72), (Ml. Aj> IH Hawtrey r. Buttlin (1H7:{). ^.B KJ2 Haydon r. Brown (188K). C.A i:*. 17 Hay '■. Nathan (18SG), C.A. I^il Ha/.rlhurst, .ip., re Bcswick (1888). Q.B.D. ... I")-' Uazlowood f. ConsolidaU'il Credit Co. (189(0, C.A. Hili. L'h7 Heath r. Cochrane (1877), Q.B * H'- Helby I-. Matthews (1894), C.A ''-^ Helsham 1-. Barnett (1873), Malins, V.C. 177 Hermann r. Hodges (1S73), Selbomc, C. ... .. •'" Hernaman r. Bowker (185(;), Ex 0s '■iS-i Hervoy r. Liddiard (18ir>), N.l'., Ellenborongh, C.J '2M Heseltincr. Simmons (1892), C.A. ItW, 191, Uls Hetlx'rington i-.(;rr)onii'( 1884.), C.A. .. ... It,:, 1 7-'. li'.l I . li'.t? H.nver r. Cox (1860), (^B 181, l'.»l jHickley r. Creenwood (1S90), Q.B.U. . 79, 80, 1st Hickso'n r. Darlow (1883). C.A 32.38.117 Hill r. Kirkwood (1.S80), C.A 117. 177 I7s Hill, ea-p., re Bird (1883). C.A ■•'^ Hill. Pi'p-, '-f Lane (1886), (J. B.D. 1^'' Hillman, e.vp., re Pnmfrey (1879), C.A. '•■^ Hills r. Shepherd (1858), N.l'., Williams, J. ... ... !'•'< Hilroi. .-. Tucker (1887), Kekowich, J. .. ^* Hockey '•. Evans (1887), C.A "6 Holgate <•. Slight (1851), Bail Ct ^'^ Uollnnd >: Hodgson (1872), Ex. Ch. ... '"•' Hollingsworth f. White (1802), Q.B ll.'1.17'.' Holmes r. Penney (18511), Wood, V.C. ... * K Holniyd v. Marshall (18G2), H.L ""'>• '^•' HootC fxp., r^ Bnrge.-s (1893), C.A. ... '"^ Hooman, crp., r»» Vining (1870), Bacon, C.J. '•***» Hooper 1-. Parmenter (1HG2), C.I'. ... 1^'' Hooper I'. Ker (1884), C.A. ^1 Hopcrafl, ecp., re Flavell (18(15), Holroytl, Cmn. ''7 Hope r. Hay ley (1850). (^B •''•'' Hopkinson f. Rolt (18<'.l). ll.l '■'"- 18 CASES CITED. PAGK Hon. f. Baker (18Ub), K.B 235 Home ('. Hughes (1881), C. A 203 Homidge *'. Cooper (1858), Ex. ... ... ... ... ... 283 Hornsby f. Miller (1858), Q.B 237 Horsfall c. Key (1818), Ex 42 Horsford f. Webster (1835), H.\ Ill Horsleyf. Style (1893), C. A 124 Hon-BB f. Ball (1827), K.B.... 55 Hubbard, exp., re Hardwick (1886), C.A. 44, 45, 54, 58, 105 Hue i;. French (1857), Kindersley, V.C 139 Hughes, e,>jj., re Thacki-ah (1888) Cave, J 238 Hughes f. Little (1886), C.A 125, 157, lti4, KJ'J, 295 Hughes t'. Morris (1852), Ch. Ap 134 Hunt, e.cp., re Caiiii (1884), g.B.D 133 Hunter y. Turner (1875), Q.B 198 Hutton V. Brown (1881), Fry, J 58 Hutton c Cruttwell (1852), g.B. .. 144 Hyde r. Warden (1877), C.A 107 IxcE r. Everard (1796), K.I5. ... 134 Irish Civil Service Building Society v. Mahouej' (1876), g.B. (Ireland) 93 Irons V. Smallpiece (1819), K.B 140 Izard, escp., re Chappie (1883), C.A 218,233 Izard, eap., ?-e Cook (1874), Ch. Ap. ... ... ... ... 145 J.VCKSOK, ej;jj., re Bowes (1880). C.A. ... ... ... ... 99 James v. Macken (1878), Harrison, J. (Ireland) ... ... 186 Jardine, exp., re McManus (1S75), Biicon, C.J. ... ... 81 -larvis, e;vp., re Spanton (1870), C.A. ... ... ... ... 154 Jarvis r. Jarvis (1893), North, J 52,71,224 Jay, e.Tjj., re Blenkhorn (1874), Ck. Ap 73,238 Jay, ca!23., re Harrison (1880). C.A. ... ... ... ... 56 Jenkinson v. Brandley Mining Co. (1887), Q.B.D 223 Jezeph r. Ingram (1817), C.I' 200 John v. Jenkins (1832), Ex. .. 114 Johnson, exp., re Chapman (INHI), C.A. 128,145,181 Johnson V. Diprose (1893), C.A 38, 104, 105, 106, 117 .lohnson V. Mason (1794), N. P.. Kcnyon C.J 220 .lohnson c. Oeenton (1869), Kx. ... ... ... ... ... 60 Jones r. Brewer (1811), C.P 220 Jones V. Harber (1870), Q. 15 148 Jones V. Harris (1871). Q.B 182,183 Jones r. Lock (1865), Cranworth, C. ... ... ... ... 45 Jones r. Roberts (1890), g.H.D. 79 Jones y. Tower Furnishing Co. (1889), Q.B.D 50 Joseph f. Lyons (1884), C.A 89,201 Joseph V.Webb (1884), Hmldkvstou, B 201 CASKS CITKI). Kaiikx, iMj.., rr Hew IT llH82), Hacuii, C.J. I:.'!, la.'., 17'.'. I s:i, SM Kiirt't c. KoHher Meat Assuciiitioii (1877), C^.M.I'. KuarHh-y ,-. Phillips (lH8:}), t'.A. Kelly !•. KoUond (1«HK), C.A. Ki'lly, fxp., ri- Smith (l-'^'O), C.A.... Ki-nii.-(iy, t:rp., ,;■ Willis (1888), C.A. Ki'ttlcwell r. Watson (1884), C.A. Ki'vaii, eip., ri' Crawford (1874), Cli. A p. Kovuii I'. Mawson (1871), Kx. Kidd f. Kawlinson (1800), C.P Kilner, e.t/)., re Barker (187H), C.A Kilpiii I'. Ratley (1892), Q.B.D King, (M/). (1876), C.A Kirkwood, exp., re Ma.son (1879), C.A. Kiiightloy, exp., re Moulaon (1882), BiitiHi, C.J... Knott, .e (1877), Hall, V.C. Knowlrs <■. Hursfall (1821), K.B. L.\MH 1-. BriK-e (187(5), Kx. D Landowners, &<.■., Co., v. Asht'ord (188U), Fry, J. hauc r. Tyler (1887), Q.B.D Larchin r. Nortli -We.stern Deposit Bank (187o), K.\. Cli. Latimer v. Batsoii (1825), K.B Jjazarus c. Andrade (1880), Lopes. .1. Lcaroyd, exp.. re Fould.s (1871'), C.A. I.eatham c. Amor (1878), Q.B.D. Lee r. Barnes (1886), Q.B.D. Leer. Butler (1893), C.A Lee r. Clutton (1870), C.A. Leo r. Turner (1888), Q.B.D Lees I'. Whiteley (18G(i), Kindersley, V.C. Leman, e.rp., re Barraud (187G), C.A. Leman r. Yorkshire Waf,'on Co. (1881), Hall. \ .('. Le Neve v. Le Neve (1747), liardwicke, C. Levy V. Abercorris Slate & Slab Co. (1887). Chiity. J. Levy r. Polack (1885), Q.B.D Lewis, cxp., re Henderson (1871), Ch. A)). Liford's Case (Ui05), K.B Limerick, r>' (18tJ3), L.K.C. Lincoln Waj^on Co. v. Mumford (1879). E\ l>. Lindon r. Sharp (1843), C.P Lingard v. Messiter (1823), K.B. . Liverpool, Ac, Society r. Hichardson (l.ssii). Q.B.D. Load r. Green (184G), Kx. . . Lock V. SclUvood (1841), Q.B. Lomax r. Buxton (1871), C.P London Loan A DLscount Co. r. Drake (1859), C.P. London >;< . l.V.» 14H 95, ntj, !I8 •J 4 l-J'.t 1 *' 1 1 ^ 1 2(MI 1 1.'. m 5'.> 18G ISO . IS.-, 12(» •^M 179, 182, , 187 202 112. ,212 187 i.-f;i. 14:{ s7 1 ' 1 1 .,1 87 I ('.2. 29G :{;{, .',.! 1!»<» lS(i, l!ti» 2S1 1!»S 1. '••7 199 223 li'.i t'i<> ISH in 2:tc. 171. 2:"1, 2!H> 238 2H;{ 1 W 1(»:{ '.•2 isl 20 CASES CITED. FAGB London & Westmineter Loan Co. v. L. & X.W. Ry. (1893), Q.B.D. Ill Longbottom f. Berry (1869), Q.B 92 Longdeu v. Sheffield Deposit Bank (1880), Field, J 108 Lovei-ing, Cctj)., re Jones (1874), Ch. Ap — ... ... ... 237 Lovering, exp., re Murrell (1884), C.A. ... ... ... ... 236 Low r. McGill (1864), Q.B 32,37 Lowe, evp., re Standard Manufacturing Co. (1891), C.A. ... 224 Luck, erp., re Kemp (1883), Bacon, C.J. 148 Luckin r. Hamlj-n (1869), Ex 187 Lumley r. Simmons (1887), C.A 105,168,287,293 Lunn '•. Thornton (1845), C.P 86 Lusty, .riJ. (1889), Cave, J , 91,100 Lybbf r. Hart (1883), C.A. 71 Lyder. Munn (1831), Shadwell, V.C 217 Lyon r. Weldon (1824), C.P 235 Lyon r. Morris (1887), Q.B.D., C.A 172,297 Lyons r. Tucker (1881), C.A 197 Lyons, e^rp. (1872), C.A 153 Macbeth i: Ashley (1874), H.L. (Sc.) 43 Macey r. Gilbert (1888), Q.B.D 173,297 Mackay )■. Douglas (1872), Malins, Y.C 142 Mackay, exp., re Jeavons (1873), Ch. Ap. ... ... ... 59, 196 Mackenzie, exp., re Bent (1873), Ch. Ap. ... ... ... 183 Mackay r. Merritt (1886), Bacon, V.C 294, Maddever, re (1884), C.A. 143 Madell I'. Thomas (1890), C. A 39,50 Manchester, &c., Ry. v. North Central Wagou Co. (1888), ILL. 40, 42,46,48 Manning's Case, (1610), C.P 283 Marine Mansions Co. re (1867), Wickens, V.C. ... ... ... 120 Marples V. Hartley (1861), Q.B 44,121 Marsden v. Meadows (1881), C.A 42,47,48 Martin i-. Gale (1877), Jessel, M.R 34 Martiudale r. Booth (1832), K.B 139,142 Martinson !'. Consolidated, &c., Co, (1889), C.A 190 Maaon, exp., re Isaacson (1894), C.A. ... ... ... ... 71, 158 Mason r. Wood (1875), C.P.D 219 Massey r. Sladen (18G8), Ex 109 Mather r. Eraser (18r.6), Wood, V.C. ... 70,92 Matthews r. Buchanan (1889), C.A 186 Maugham r. Sharpe (1864), C.P 105,224 Mavor I'. Croome (1823), C.P 148 May, e.rp., re Spackman (1890), C.A 61 Mayor u. Mindlevich (1888), Q.B.D 127 Mayhew r. Suttle (1854), Ex. Ch. 109 .McBurnie, exp. (1852), Ch. Ap 63 .M'Cue '•. James (1870), C.P. (Ireland) 186 McLtKxl r. Drummond (1810-1), Eldon, C 35 .Mead v. Orrery (1745), Hardwicke, C. ... ... .. ... 35 riUK HI a»; ]>>», lt,:<, 1 7ii. itt-t 141 .V.t. 1 15 ri'laiul ) iV, (•.<», {»(•. ;tM». -d^h 17'.', iHit. ;<,Mi, lid I4;< 117 lot; 1 4H .')5 45 |t;:i, IU5 Iii7. \H'J .'I'.i. 23H liJO. lt)2 i(t7. i(»y 177 i:{:t .'it. sc. CASES CITED. 21 Mei- I'. PfHTf-n (IHCC), Kx. Cli Mcjfffv !•. Imperial Ui.scount Co. (1H7M). ('.A. Mfivilli' r. Strill^,'lM• (IKH-l), C.A. . >^l Mom-r, crp., re Wi.so, (1H8G), C.A MerciT >•. I'cturson (18G8), V.x. Ch. Mfi-ch'int Hankinf,' Co. r. Spotti-ii (1H77V Sullivan. M.H.dri-laiul ) Mi'ux V. Jncobs (1875), ILL. M'llattie, >:ip., re Wo.mI (187H), C.A. Mii-liiiL'I r. Gray (1858), N.l'., Willes, J. Michvorth, .vp., (1885). Q.B.U. ... Mildred r. Austin (186f>), Uomilly, .M.I!. Mills, re (1888), C.A Mills V. CharlcHWorth (1890), C.A. Milroy >•. Lord (18G2), Ch. Ap Monetary Advance Co. v. Cater (1888), g.lM). .Monson v. Milner (1892), Denman, J. Montagu, evp., re O'Brien (1876), C.A. ... Moore, erp., re Arinytage (1880), Bucou, C.J. Moore r. Shelley (188:{), P.C MoorhouBe r. WooHV (1882), Kay, .1 Morcwood '•. S. Vorksliirc Haihvay (1K58), K.\. Morris r. Delobbel-Flipo (1892), Stirling. .1. Morrison, e.ip., re Westray (1880), Bacon. ('..I. "i-^ Mortlock, e.vp., re Bashani (1881), Bacon. C'.l. " Morton r. Woods (18G9), Kx. Ch '••" Mumford r. Collier (IHiK)), Q.B D '•'•'' Murray f. Mackenzie (1875), C. P. . IM'. 1h4 Musgrave -■. Stevens (188:j), Field, .1. ... -01 Musgrave, e.i-p., re Wood (1878), C.A. '•'- Mutton, exp., re Cole (1872) , Bacon. CI . • •'• ' Myers r. Elliott (1886), C.A If.,',. 2!i| National Deposit Bank, eip., re Wills (1878), C.A 1^*^ National (Juardian Assurance Co., exp., re Francis (1878), C.A. lt>9. 'S.iS National Mercantile Bank, e.vp., re Haynes (1880). C.A. 1 2r>. l:<(i. 177. 188 National Mercantile Bank, eep., re Pliillii)s (1881), C.A «">8 National Mercantile Bank >: Hampson (1880), Q.B.D.... 200 National Mercantile Bajik r. Hymill (1881). C.A. 2tK» Needham r. Johnson (18G7), Q.B li'- Nelson, exp., re llockaday (1887), Q.B.I). & C.A. 125> Nelson v. Stocker (1859), Ch. Ap. '-^^ Newitt, e.vp., re Garrud (1881), C.A. •'•'■• •*'" Newlove r. Shrewsbury (1888), C.A. v:{. 17. »'.'. l.»r, Newport Co., erp.. re Banilield (l.'<72), Baccm. ('..' >'• Newsham, exp., re Wood (1879), Baron. ('..I 7f> Nicholson r. Cooper (1858), Ex. .. '"^ Norman r. Hodges (1883), C.A >ii7 North Central Wagon Co. v. Manchester, Ac. Haihvay (188G), C.A ■ '»• ^ North-Western Bank, ecp., re Slee (1872). Bacon, C.J. CO PAGE 64 115 142 191 186 95, . 158 46, 51, 204 22 CASES CITED Norton, ^sp., re Brail (1893), Williams, J Nimn 1-. Kirkwood (1883), Day, J Xunn r. Wilsmore, (1800), K.B O'Briex, ve (1860), K.B. (Ireland) O'Connor, re (1850), Macan, Com. (Ireland). O'Dwypi- (1886), Bank, Jr. Odcll, f.'p., re Walden (1878), C.A Official [Receiver, erep., reMorritt (1886), C.A. 104, 161, 171, 172, 173, 201, 292 Official Receiver r. Tailby (1886), C.A 70 Oliver r. King (1856), Ch. Ap 138 O'Neill -'. City Finance Co. (1886), Q.B.D 212 Onn r. Fisher (1889), Chitty, J 195 Opperman 1'. Smith (1824), K.B 114 O'SnllivMn >■. Burke (1875), K.B. (Ireland) 143 P.\GET r. Parchard (1794), N.P., Kenyon, C.J 142 Paine r. Matthews (1885), Q.B.D. 61 Parke, ve (1884), Miller, J. (Ireland) 214 Parker r. Lyon (1888), C.A 43 Parnacott v. Dieudomie (1885), X.P., Lopes, J 121 Parnell f. Steadman (1884), Cave, J 63 Parry r. Duncan (1831), C.P 114 Parsons & Purber, re (1893), C.A. 214 Parsons )■. Brand (1890), C.A 123.160,173,175,182 Parsons r. Dewsbury (1887), C.A. 137 Parsons, exp., re Townsend (1886), C.A 45, 54, 61, 136, 157 Patrick, re (1890), C.A 205 Payne, rnp., re Coton (1887), Q.B.D 168, 171, 288 Payne r. Cales (1878), C.P.D 198 Payne, fV'p., re Cross (1879), C.A. 68,146,199 Payne r. Fern (1881), Q.B.D 201 Pearce 7-. Morris (1869), Hatherley, C 105 Pearce, exp., re Williams (1883), Bacon, C.J 167, 291, 295, 296 Pearson, e«p., re Mortimer (1873) Ch. Ap. ... 147 Peckhani V. Taylor (1862), Romilly, M.R 45 Peel, re (1894), Ir 238 Pennell ('. Dawson (1856), C.P 142 Pennell y. Reynolds (1862), C.P 144 Pennington, exp. (1888), C.A 63 Penwarilen V. Roberts (1882), Q.H.D 178 Fetch r. Tntin (1846), Ex 87 Phillips r. Burt (1862), N.P., Wightman, J 191 Phillips /•. Earner (1795), N.P., Kenyon, C.J 143 Pliilli])s ,-. Gibbons (1857), Q.B 48 Philps r. Hornstedt (1875), Ex. Ch 146 Pickard c. Bretz (1859), Ex 183 Pickard ('. Marriage (1876), Ex. D 76,191 Picksiork ('. Lyster (1815), K.U 61,140 Piercy «'. Humphreys (1868), Stuart, V.C 121 CASES ('ri'lM* !':» I'liimn- r. HiisiMi (1S47), Q.B. I'.iiisfoid r. W.'ilton (IStW). C.I'. l'o|M', ../.., ,:■ I'axtoii (l.S8S»), (/ IM>. l'(>|i|.letoii, fivp., ;v Look (IH'.tl). (^.H.D. l'«)|>|ilinvoll, e.rp., iv Storey (1>^2), C.A. ... I'owoll, pti/j., »v .Mdtthows (IS7.')), C.A. ... Pratt, «.rp., iv Fi.-lil (IHi)O), Cmv.-, .1. Preeco i-. Gilliiijr ( 1H.S.'>), l^. B. I ) I'riM'R r. Coko (1871), Hatlii'rlry, C. I'rcHcott r. Phipps (18H:}), C.A. Pricp. r.rp., rfi Roberts (1S82), C..\. Pridoanx, re (1883), Hawkins, .1 Prifstl(«y ,-. Pratt (18G7), Kx I'ri.sinnll >■. Lovogrove (18(j2), Ex. I'rohyn, -•,;,., ,•-• Harrott (1880). C.A. I'lilhrook V. Asliby (1887), D.-uiiiiin, J. ... I'lilliiiK <•• Tucker (1821), K.M I'limii'tt, .■>■;>., )•.• Kitchiii (ISSO), C.A. VIlUM. 22(J 2:»1 17n, 171. a»l 2:{s i2<;, 1st;, u)'), i!ii; 2;J7 s^ i;i 177 lo; i:i2 17;J 2as 2:{s 1 1:, .")>s, !»7 Its !»7, '.IS l^iKKN's Boni'tit Biiildiiif,' Soi-icty, e.rp., rr 'I'lirolfall (188CI). C..\. (^iiocnaiaiul Mprcamilo and .Vjjcncy Co. (1801), .\oi-tli,.I. K. r. Cox (188-1.), C.(;.K K. r. Croose (1874), C.C.K. K. r. Uarrin^'wortll (1815), K.15 R. r. Ha/.lewood (1883), ecu R. c. Hodnjkiss (18GJ>), C.C.R R. i<. Meakin (1800), C.C.R R. c. Samp.wn (1885), C.C.R H. I'. Scaniinondon (1789), K.B. ... R. r. St. (iiU-s (1853), g.B. R. f. Thomas (1870), I.iisli, . I R. f. TownsluMid (1881). Day. .1 Railton '•. Wood (18!I0), P.C Ramsay c. MarKrcti (1894), C.A Ramsdcn i'. Liipton (1873), Ex. Cli. Rawliiii^s, exp., re ('leaver (1887), C.A Rawliiigs, e.vp., »•« Davis (1888), C.A. Read r. Joannon (18iK)), (^B.D lUnulcr, exp. (1875), Baeon, C..I. ... Real & Personal Advance Co. r. Clears (1888) Redfern, .rp., n- Ball (1871), Bacon, C.l. Redhead i-. Westwood (1888), Kay, J. ... Itecd V. Blades (1813), C.P Rocd, evp., n- Tweddell (1872), Bacon, CI. Reed r. Wihnot, (18;n), C.P Rccvo r. Whitmoro (1803), Went bury, C. Reeves c. Barlow (1883), (^B.D Reeves r. Capiier (1838), C.P Reynolds 1. Hall (1859), Ex 98 212 til. 139 220 202 228 202 202 13S 221 I (5 ll:t 13, 17 108, 171. 173, 2S7, 2;il u;,i 43. i.->(i . 292. 295 t>2. •>• >. i 1 22 t 1 IS . 289. 21 »6 107 52 13;'. l»2 1 Mi 1 12 s7 .'.; ^ 5s 13 39 2{ CASES CITED. Bichanls r. Jamt'8 (18(37), Q.B Kichards v. Jenkins (1887), C.A Richards V. Johnston (1859), Ex Eichardson i\ Harris (1889), C.A. Biches r. Evans (1810), N.P., Abinger, C.B Eidlerv. Ridler (1882), C.A Roberts v. Roberts (1884), C.A 79,94,125,1 Robinson ('. Briggs (1870), Ex Robinson L'. Collingwood (1864), C.P Robinson v. Hedger (1850), Shadwell, V.C. Robinson v. M'Donnell (1818), K.B llobinson v. Tucker (1883), Watkin-Willianis, J. & C. A. Roe r. Bradshaw (18G6), Ex. Roe V. Mutual Loan Association (1887), Pollock, B., C.A. Rogers v. Challis (1859), Eomilly, M.R Rolls r. Miller (1884), C.A Eolph. ea;p.. re Spindler (1881), C.A Rose I'. Haycock (1827), K.B Ross V. Army and Navy Hotel Co. (1880), C.A. Houth c. Roublot (1859), Q.B Russell, exp., re Butterworth (1882), C.A. Ryall r. Rowles ( 1749) , llardwicke, C 26, 133 193, 137 P.VGE 122, 198 32, 198 32 131, 133 139 142 161, 164 73 196, 284 105 138 76 180 165, 294 60 234 127, 132 144 223 183 142, 144 71 Sacker v. Childley (1865), Ex Saffery, exp., re Bremner (1881), C.A. Sanders v. Davies (1885), Q.B.D Schmitz, exp., re Cohen (1884), C.A. Schulte, exp., re Matanle (1874), Mellisli, L.J. ... Scott, e.i'jj., re Hawke (1886), Q.B.D Scott r. Tyler (1788), Thurlow, C. Seal V. Claridge (1881), C.A Searles r. Scarlett (1892), C.A Scdwick r. HOlier (1887), Q.B.D Seed V. Bradley (1894), C.A Sergeant, e*2'-, '■« Gelder (1881), C.A. Seymour I'. Coulson (1880), C.A. ... Shaftesbury v. Russell (1823), K.B Shane, exp., re McGinity (1884), Q.B.D Sliarp V. Brown (1887), Kay, J Sharp r. McHeury (1887), Kay, J. Sharpe y. Birch (1881), Q.B.D Shaw, exp. (1877), Bacon, C.J. Shears V. Jacobs (1866), C.P. Sheen, exp., re Winstanley (1876), C.A. ... Sholiield & S. Yorks. Society v. Harrison (1884), Shepherd r. Pulbruok (1888), C.A. Shower r. Pilck (1849), Ex. Sliuckburgh r. Pike (1892), C.A Sibley r. Higgs (1885), Q.B.D 76, ... 74, 176, 171, 85, 164, 170, C.A 162, 179, 186, 190, 186, 191, ... 44,49 167, 295, 239 239 101 115 150 152 35 178 210 291 290 53 36 68 196 179 196 180 203 224 146 92 ,76 140 116 296 CASKS L'iii:i). ji:, TAOk Sieliert <•. SjHioiiur (183G), E\. , M7 SimmoiiB r. HiiKhes (ISOO), C.A .. ~\> Simmuiis v. \V(K)dwuitl (1«!)2), 11.1.. . !•;;{, Ki.",, 171, l«l, I8'.t, L'Jl. l'n7 Siiiipsoii c. Chjiring CrosH Bauk (18«tJ), t^.H.l). ... ... ... It;-,' Siiifjlutoii, (},i'p., re Tiittou (18H!i). Wills, J. ... ... ... 7l Sluddeii c. Ser>,'oaiu (1H3H), N.l'.. Will.-H, J l,s;{ Smalo r. HuiT (1872), CI* 156 Small 1'. National I'rovimial Hank ( 1894), Stirling, J.... ... lOH Smith, ec/). (1H80), Haiuii. (..1 128 Smith r. Baker (187;J), U.r. |;}S Smith r. Brown (lH7".t), Hall. V.C. 1 M Smith r. Cannan (1853), Q.B 14-1 Smith c. Cheesf, (1875), (MM). .. 18't Smith r. Day (1883), C. A US Smith 1'. lIuiLson (18G5), t^).B 2:t7 Smith r. L'ilKriiii (1870), .MaliuK, V.C Ijs Smith r. Tatton (187!)), K.\. D. (Ireland) 11- Smith 1-. Topping (1833), K.H L'3s Smith r. Wall (18G8), Ex 71 Snell r. lleigliton (1883), X.I'., (irove, J. -H" Soutbam, «.rji. (1874), Bacon, CI. ... ... ... ... I!t5 Southport, &c., Banking Company c Thompson (1887), C. A. .. 1(X>, 101 Spackman I'. Miller (18G2). C.P l.'.{7. 238 Sparrow, e.cp. (1852), Ch. Ap. ... ... ... ... ... :«► Spencer c. Slater (1878), g.B.U i\\ Spirett c. Willow.s (1864). Westbury, C. IJl Standard Mannfacturing Co., re, e.ii>. Lowe (1801), C.A. ... 224 Stanford, exp., n- Barber (1886), C.A. ... 159, KJl, 165, 169, JHU. 294 Staniforth c. Cajjon (1886). g. B.I) 129 Stanley, re (1886), Bank, I r. 237 Stansfield r. Cubitt (185S), Cli. Ap l.'iC. 234 Stephenson, tM/». (1847), Knight Bruce, V.C W'.i Stevens, exp. (1875), Baion. CI. ... ... ... ... ... I (6. 156 Stevens r. Marston (1890). C.A 58.95.158 Stevenson v. Wood (1805). N.l'.. Ellenborough, C.J \ \H Stockton Iron Works Co., ,v(l879). Bacon, V.C 98. !I9. 120 Stray, ej;p. (1867), Ch. Ap. (il Stubbins, e.r;j. (1881), C.A. 148 Sully, exp., re Wallis (1885), Cave, J 234 Sampler r. Cooper (1831), K.B H Sntton r. Bath (1858), N.l'.. Krle. .1 82. I s9. 191 Swift r. Panm-ll (1883), Fry. .1 32, 38, 119. 176, 21.S. 2:v.i Swire r. Cook.ion (1883), Cave. .1. .. 7.'.. 20.". Swinbanks, exp., re Shanks (1879), C.A. ... .. 15;< Symmons, etp., re Jordan (1880), C.A. ... . It'.* T.vn.MAN r. D'Epineuil (l882),Fry, J. ... s\ I2n Tailby '•. Official Ueceiver (1888), ILL 70. 8s Tapfield c. Hillman (1843). C.P S7 Tarback '•. Marbury (1605). 196 CASES CITED. PAGE Tiite, -;aji3. (1870), C.A 149 Taylor, ei)p., re Goldsmid (1886), C.A 148,149 Taylor t). Eckersley (1877), Bacon, V.C 76,239 Taylor i>. McKeand (1880), C.P.D 201 Tempest, exp., re Craven (1870), Ch. Ap. ... ... ... 148 Tennant )•. Howatson (1888), P.C. 66,67 Thomas r. Harris (1858), Ex 107 Thomas v. Kelly (1888), H.L. ... 78, 85, 93, 157, 159, 1G4, 173, 293 Thomas v. Searles (1891), C.A 84,126,194,198 Thompson V. Cohen (1872 ^ Q.B 55,217 Thoms(mr. Barrett (1859), Romilly, M.R. 46 Thornton V. Adams (1816), K.B. 112 Thorp i>. Browne (1867), H.L 183 Thorp y. Cregeen (1885), Q.B.D 165 Threlfall, exp., re Williamson (1876), Bacon, C.J 146 Throssoll y. Marsh (1885), Q.B.D. 185,188 TiUett /•. Gosbee (1887), Q.B.D 291 Todd, e.cp., i-eAshcroft (1887), C.A 64 Tomkins V. Saffery (1877), H.L 149 Tomliuson r. Consolidated Credit Corp. (1889), C.A 112,212 Toms ''. Wilson (1862), Q.B 110 Topham, fic-ep., re Walker (1873), Ch. Ap. 148 Topham r. Greenside (1888). North, J 90, 223 Topley r. Corsbie (1888), Q.B.D 160,165,170,290 Townend V. Toker (1866), Ch. Ap 138 Trade Auxiliary Co. v. Middlesbrough, &c., Co. (1889), C.A. 210 Trevor, exp., re Burghardt (1875), Bacon, C.J. ... ... 109 Trinder v. Raynor (1887), Q.B.D 208 Tuck r. Southern Counties Deposit Bank (1889), C.A. ... 84, 197 Turner '■. Culpan (1888), Q.B.D 171,219,289 Turner r. Hockey (1887) Q.B.D 200 Turquand, exp., re Parker (1885), C.A. 203, 237 Tuton r. Sanoner (1858), Ex 186 Twcedalc, erp. (1892), Q.B.D 149 Tweedy, exp., re Trethowan (1877), Bacon, C.J. 102 Twyne's case (1602), Star Ch 142 IJxiox Bank of London r. Lenantoii, (1878), C.A. 65 Union Bank of Manchester, exp., n- Jackson (1874), Bacon, C.J. 238 Usher -■. Martin (1889), Q.B.D 85, 126, 187 Vaux, ccp. (1874), Ch. Ap. 237,238 Vernon »'. Cooke (1880), C.A 178,181,228 Vicarino i\ Hollingsworth (1869), Q.B 236 Villars, exp., re Rogers (1874), Ch. A[) 283 Voisey, r?.cp., re Knight (1882), C.A 98 Vulcan Iron Works, re (1888), North, J 44, 92 Waddi.vgtom'. Roberts (1868), Q.B 219 Wale r. Commissioners of Inland Revenue (1879), Ex. D. ... 203, 230 Walker w. Clay (1880), C.P.D 200 Walker »'. Jones (1865), P.C. ... 204 t'ASBS CITED. Waller r. Dmkpford (iHr*:*), <,i.H WjilliiiKford r. Mutiiiil Soc-i.-ty (IKHO), H.L. Wallis r. Say.-i-s (ls'»0), C.A. WiilliH r. Smith (IS.S2K Hiicon. V.C. WiiliiiRlry r. Milno (IHoO), C.P. WalroiKl ••. Goldmunn (ISH.-)). if.HA). W'ui-fl, ,r,p.,n: Couston (IH'li), Cli. Ap. ... Wiinior I'. .laool) (1KH2), Kiiv. .1. Wiishljuni '■. Hirc-h (17!»3K K.H Waterfall r. Pcnistono (IH.-)!',). i).]l. Waterton i-. Bakor (1HG8), C^.H Watkiiis r. Birch (18i:i), C.I* Watkins, irrp., re Coustoii (1S7:1), Ch. Ap. Watkins r. Kvanfi (1887), C.A 104,108, Watson, IV. p.vp., Lovo (1877), C.A. Watson, If, f.p., Official Rccoivor (1890), C.A. Watson r. IVacho (18.S1), C.I' Watson r. Strickland (1887), C.A. Wayne r. Hanhani (1851). 'rni-ncr, \'.C. ... Weardalc Coal A- Iron Co. >: Ho.Non (1894), C.A Webster I'. Blackmail (18.-j1), N.P.. Cii.-mnell, B Webster, pvp., rp Morris (iaS2), r..\. Weeks r. Maillardet (1811), K.B Welsted r. Swansea Bank, Ld. (ISHH), Pollock, Wenman c, Lyon (1891 ) , C. A Wensley, erp. (18G2). Wcstbury, C. Westbury v. Clapp (18(!4), Wwxl, V.C. ... Wharlton r. Kirkwood (1873), E\. Wharton r. Naylor (1848), Q.B Wheeler i-. Montefiore (18 H), Q.l{. White v. Morris (1852). C.P White r. Ruhory (1H04), l/.B.U Whitfield I-. Brand (1847), Kx Whitmorc ''. Kmpson (1857), Kmnilly, .M.R. Wi^frins, ,Mp. (18.32), Ct. Rev Wilkinson, rip., re Berry (1883). C.A. .. Wilkinson -•. Giraud (1891), N.P., Matthew, .1. Williams, erp., re Sari (1892). Williams. .1. Williams, Tp., re Thomjison (1878), C.A. Williams r. Bnrgess (1840), Q.B Williams v. Kvans (18.")G), Romilly. M.H. Williams r. Gerry (1842), Ex WilHama c Smith (1889), Q.B.D Williams ,'. Stern (1879). C.A Wilson, erp., re Butterwortli (1835). Ct. Rev. Wilson, V. Kirkwood (1883), Chitty, .1. .. Wilson r. Watlierspoon (1881 ), Kay. .1. .. Wiltshear '•. Cottrell (18.''>3).g.B. Wimbledon Local BoanI -•. Und.>r\v...Hl (1892). (^B.I) .■«2 2H7 lu7 IS.'. 1 1 HI :il 238 Ki.'i l:<; U)l 162, 288, 29X 3.'i 206, 2 1 I S2 2Ln 02 147 I Kt Ids 111 :ts 39, 13S 21 1; 237 ;•! 237 ]U 4-J- 85, 103 :•;• 124. i;"2 Kni 147 231 21() los 91 1 05 l.V) 09 2 1 .'i 28 CA8ES CITED. W'injifield, exp., re Florence (1870), C.A. WiuttT, exp., re Softley (1875), Bacon. C. Winter, erp., re Fothergill (1881), C.A. .. Witt I'. Banner (1887), C.A Woherhampton Co. r. Marsden (1861). E Wood, re, exp., Woolfe (1894), Q.B.D. .. Wood r. Dixie (1845), Q.B. Wood r. Manlcy (1839), Q.B Wood V. Rowcliffe (1851), Ex Woodgate v. Godfrey (1879), C.A. \\'t)udhouse ''. Murray (1868), Ex. Ch. Woodland r. Fuller (1840), Q.B. ... Woolfe, exp., re Wood (1894), Q.B.D. Woollen r. Wright (1862), Ex. Ch. AVorsley v. De Mattos (1758), K.B. Wright, rt> (1856), Bail Ct. WulfE f. Jay (1872) Wyatt 1'. Barwell (1815), Grant, M.K. Yarmouth v. France (1887), C.A. ... Yates V. Ashcroft (1882), Q.B.D. ... Young V. Fletcher (1865), Ex. ^'oung, exp., re Symonds (1880), Bacon, C.J. 235, 238 65 125, 126 79 35 104, 168 140 55 81 46,47 146 36 104, 168 116 144 191 154 199 94 180 147 189 Zucco, re, exp. Cooper (1875), Ch. Ap. 154 Tni>: lULLS OF SALE ACTS, 1878, 1882, 1890 & 1891. 41 & 42 Vict. c. 31 ; 45 & 40 Vict. c. 43 ; 53 A- 54 Viet. c. 53 ; 54 & 55 Vict. c. 35. AN ACT C0N80LIDATK AND AMEND THK LAW FOR I'REVKNTING FRAUDS [1878.] UPON CREDITORS BY SKCRET BILLS OP SALE OF PERSONAL CHATTELS. [22»d July, 1878, AN AC T AMEND THK BILLS OF SALE ACT, 1878. [1882.] [18fh August, 1882. AN ACT EXEMPT CERTAIN LETTERS OF HYPOTHECATION FROM THK [1890 1 OPERATION OF THE BILLS OF SALE ACT. 1882. [18«h August, 1890. AND AN ACT AMEND THE BILLS OF SALK AW, 1890. [1891.] [21xt July, 1891. WHEREAS it is expedient to consolidate and p^'-""''!' amend tlie law relating,' to bills of sale of [1878.] personal chattels : Be it enacted by the Queen's most Excellent Majesty, by and with the advice and con.sent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 30 THE BILLS OF SALE ACTS, 1878 TO 1891. Preamble. "TT"/^HEREAS it is expedient to amend the Bills [1882.] VV of Sale Act, 1878 : 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 : The preamble is .said to be, as it were, a key to the under- standing of a statute, '"' and the object of the Bills of Sale Acts has been to protect creditors, to give them a true idea of their debtor's position, and to prevent transactions by which a grantor is allowed to retain possession of property which the grantee may at any moment withdraw from the claims of creditors and dispose of as he thinks fit.'" The amendment Act, while continuing this protection, is also designed to define the rights of bill of sale holders and borrowers of money, and to protect the latter against inequitable claims. [1890.] Be it enacted by the Queen's most Excellent [1891.] 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. (1878.) This Act may be cited for all purposes as the Bills of Sale Act, 1878. 1. (1882.) This Act may be cited for all purposes as the Bills of Sale Act (1878) Amendment Act, 1882; and this Act and the Bills of Sale Act, 1878, may be cited together as the Bills of Sale Acts, 1878 and 1882. Short Title. 3- (1890.) Tins Act may be cited as the BiUs of Sale Act, 1890. The Act was passed and came into operation on the 18th August, 1890. It has been amended by the Bills of Sale Act, 1891. Short Title. 2. (1891.) This Act may be cited as the BiUs of Sale Act, 18i>l. Short Title. Short Title. (a) Co. Litt. 79a. (4) Exp. Sparrow, [1890] ; Pages 174, 2«2 [1891J. De G. M. &. G. 907. (c) Paycs 2Jk\ 2C1 THE HILLS OF SALK ACTS, 1M7H A 1882. ru SeC8.2. 3 [1878.] 2. (1878.) This Act shall coiiK.' into oixTiition on Sec. 2. the tirst day of January one thousand eight hundred 11882. ) and seventy-nine, which day is in this Act referred <'onjmtncc- to as tlie commencement of this Act. 2. (1882.) This Act shall come into operation on conumnco- the tirst day of November one thousand eight hundred and eighty-two, which date is hereinafter referred to as the coimiit'ncciiient of this Act. 3. (1878.) This Act shall apply to every bill of sale ^/'J^'^p^'"" executed on or after the first day of January one thousand eight hundred and seventy-nine (whether the same be absolute, or subject or not subject to any trust), whereby the holder or grantee has power, either with or without notice, and either immediately or at any future time, to seize or take possession of any personal chattels comprised in or made subject to such bill of sale. By sec. 23 of the principal Act, any renewal, after the commencement of the Act, of the registration of a bill of .sale, executed before it.s commencement, and registered nnder the Acts thereby repealed, shall be made under the Act in the same manner as the renewal of a registration made under the Act; and the rule of construction enacted by sec. 7 of the priTicipal Act applies to all deeds or instruments, including fixtures or growing crops, executed before the commencement of the Act, and then subsisting and in force, in all questions arising under any bankruptcy, litjuidation, assignment for the benefit of creditors, or execution of an}' process of any Court, which shall take place or be issued after the; commencement of the Act. The principal Act continues to apply to any bill of sale duly registered before the 1st of Xovember, 188"2, so long as its registration is not avoided by non-renewal or otherwi.se, and to bills of sale executed more than seven days before the commencement of the amendment Act, l»ut unregistered.'*' Tlie principal Act also applies to bills of sale given otherwise than by way of security for the payment of money, although executi-d and i-egistered after the com- Sec. 3. 32 THE BILLS OF SALE ACT, 1878. [1878.'] mencement of the amendment Act, for this class of bills of sale is not affected bj- that Act.'"' All bills of sale given on or after the 1st of November, 1882. by way of security for the payment of money, unless within the exception of Bills of Sale Act, 1891, will be governed by the amendment Act. Who may pive It may here be convenient to consider by whom a bill of a bill of sale, ^^j^ ^^^ 1^^ given. Any person with capacity to contract may become the grantor of chattels personal, but cannot transfer a right which he himself does not possess, although if he has a qualified interest in goods, he can charge them to the extent of that interest. '*' If a person has obtained goods by fraud, under colour of a contract intended to transfer to him the property in them, though he himself could not detain the goods against the real owner, a hond fide purchaser or mortgagee who has obtained possession without notice of the fraud, and before the real owner interferes to recover them, will have a good title to the extent of his advances. <''' So by sec. 23, Sale of Goods Act, 1893, when the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and withoiit notice of the seller's defect of title. If the true owner stands by and allows another to deal with goods as if he were the owner, and thereby induces a third party to purchase or make advances upon them, he cannot afterwards, though he acted under a mistake, claim them from such third party ; '"^ although this estoppel would not prevent seizure of the goods in the hands of the purchaser by an execution creditor of the true owner,''' unless the person dealing with the goods was the true owner's agent. '^' So an execution creditor may defeat a claimant's title, which the execution debtor is estopped from denying.^"' {a) Swift V. Pannell, 24 Ch. D. 210 ; 53 L. J. Ch. 341 ; 31 W. R. 543 ; 48 L. T. 351 ; Hickson v. Darlow, 31 W. R. 417 ; 48 L. T. 449 ; 23 Ch. D. 690 ; 52 L. J. Ch. 453. (6) Coote on MortKa^es, 5th Ed. 647; Ksp. Barnett re Tamplin, 7 Mor. 70; 38 W. R.351 ; C2 L. T. 264: 59 L. J. Q. B. 194. (c) Cundy v. Lindsay, 3 App. Cases, 459 ; 47 L. J. Q. B. 481 ; 38 L, T, 57:} ; 26 W R. lOiS. (rf) Waller r. Drakeford, 1 E. i B. 749 ; 22 L. J. Q. B. 274 ; 17 Jur. 853 ; GrcfTK f. Wells, 10 A. & E. 90. (e) Richards v. Johnston, 4 H. & N. 660 ; 28 L. J. Ex. 322 ; 5 Jur. N. S. 520. (/) Low V. McGill, 12 W. R. 826 ; 10 L. T. N. S. 495. {g) Richards v. Jenkins, 18 Q. B. D. 451 ; 66 L. J. Q. B. 293 ; 56 L. T. 591 ; 63 W. R. 355. TiiK iUM,s or SALK ACi', IR78. M See. 3. [1878.] liy sec. H, Fiictors Act, 1^89,'"' where u person having sultl j»ood.s coiitiniies or Ik in posscKsion of the goods or of the ilocuuionts of tith; to them, tlie (h-livery or tninsfcr by thiit person, or l>y a mercantile agent acting for him of the goods or documents t)f tith? under any sah-, pledge, or otlier did- position thereof, or under any agreement for sale, ])ledge, or disposition thereof, to any ])erson receiving the same in good faith and witliout notice of the ju'evious sale, shall have the same effect as if the person making the delivery or transfer were expressly authorized hy the owner of the goods to make tlie same. And when a person having bought or agreed to buy ^,'^^^{^"' goods, obtains with the consent of the seller ])ossession of the goods or the documents of title to the goods, the delivery or transfer, by that person or by a mercantile agent acting for him, of the goods or documents of title, under any sale, pledge, or other disposition thereof, or under any agreement for sale, pledge, or other disjiosition thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the j)erson making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner. '*> The expression " mercantile agent " is defined by sec. 1 (1), b'actors Act, 188'J. and his powers with respect to disposi- tion of goods by sec. 2 (1). Sees. 2. ft of that Act have been held to protect a purchaser in good faith, taking delivery of goods from a person in possession under a hire agreement.*'' Infants under the age of twenty-one years are clothed with a qualified power of contracting, but are bound only by con- tracts which are necessary, and for their benefit and a2 ; 7 Jur. N. S. 1040 ; 7 W. II. 790 ; 7 L. T. 62 1. (r) WiUiftin.s on ExeciUora, 9th Kd. 250. (/) Webster r. Blnckmrtn, i V. & F. 400. (g) Sale of Goods Act, 1893, sec. 26; amending Mercantile Law Awonduient Act, 1866, 8CC. 1. Sec. 3. 36 THE BILLS OF SALE ACT, 1878. [1878.] defeat the execution creditor's right, the execution constituting a charge on the goods.'"' Who may give As property acquired by an undischarged bankrupt vests a, bill of sale. -^ j^^g trustee,'*' a bankrupt, before discharge, cannot as a rule give a bill of sale ; but all transactions entered into by an undischarged bankrupt in respect of property acquired after the bankruptcy, and before the trustee intervenes to claim it, with a person who proves that he dealt with the bankrupt in good faith and for value, whether with or without know- ledge of the bankruptcy, are valid against the trustee. '"' So if a bankrupt is permitted to trade and deal with assets belonging to the estate, or to hold himself out as the owner of property and raise money upon it, a purchaser or transferee for value, without notice of the bankruptcy, will be protected ; but a trustee who leaves the bankrupt in posses- sion of property is not by the mere fact of so doing estopped fi'ora setting up his own title, unless the property is such as is usually held for the purposes of sale.'"" An undischarged bankrupt to whom furniture has been given by a resolution of creditors can assign it by bill of sale.''' After a scheme of arrangement has been come to by which an undischarged bankrupt is permitted to carry on his trade, he may deal with or dispose of his property in the ordinary course of business, and a bill of sale given to secure advances made to assist his carrying out the arrangement will be protected, even in cases where the mortgagee has notice of the bankruptcy, and of the trustee's power to seize on default; '•''' and after a composition resolution has been approved, a com- pounding debtor may give a bill of sale over his property, which will not be affected by fraud in obtaining the resolution.'*' A bill of sale may be executed under a power of attorney, and the gi-antee is not necessarily excluded from being appointed as the attorney.'*' If the power of attorney is given (a) Woodland v. Fuller, 11 A. & E. 859. (4) Bankruptcy Act, 1883, sec. 44 (i). (c) Cohen V. Mitchell, 25 Q. B. D. 262 ; 38 W. R. 551 ; 63 L. T. 206 ; 59 L. J, Q, B. 409. (d) Meggy c. Imperial Discount Co., 3 Q. B. D. 711 ; 47 L. J. Q. B. 119 ; 38 L. T. 309 ; 26 W. R. 342 ; Exp. Ford, re Caughey, 1 Ch. D. 521 ; Vt h. J. Bank. 96 ; 34 L. T. 034 ; 24 W. R. 590. {e) Brown v. HickiiiVvDtham, 50 L. J. Q. B. 426. (/) Exp. Allard, re Simons, 16 Ch. D. 505 ; 44 L. T. 35 ; 29 W. R. 406. (ff) Seymour f. Coulson, 5 Q. B. D. 359 ; 49 L. J. Q. B. 604 ; 28 W. R. 664 ; £xp. Burrcll, re Robinson, 1 Ch. D. 637 ; 45 L. J. Bank, 68 ; 24 W. R. 353 : 34 L. T. 198. (A) Furnivall i;. Hudson [1893], 1 Ch. 335 ; 41 W. R. 358 ; 68 L. T. 378 ; 62. L. J, Ch. 178. THE lUl.LS OF SALE ACT (1878) AMKNDMKNT ACT, lHS2. 37 SeC. 3. [1878.] for valiio, and expn'sscd to ho irri-vocaltlc in thf instriinn'iit Sec. 3. creating; tho powur, it will not !)(• revokod Ijy anything done [1882.] by tlur donor of the power without the concurrence of the donee, or by the death, marria^^e, lunacy, unsoundness of mind or bankruptcy of the The expression "bill of sale," and other expres- sions in this Act, have the same meaning as in the principal Act, except as to bills of sale or other documents mentioned in section four of the principal Act, which may be given otherwise than b}' way of security for the payment of money, to which last- mentioned bills of sale and other documents this Act shall nor apply. *2) ^2) p.ikcjh. (1) The ])rovisions of sec. 13 of the ainendincnt Actai)ply to Applieatinn all bills of sale, whether registered before or after the com- " *^*' mencement of the Act ; as also does sec. 7, so far as it em- powers the Court to restrain removal or sale.'*' The words of the section providintr that, unless the context otherwise requires, the Act shall not apply to any bill of sale duly registered before the commencement of the Act, so long as registration is not avoided by non-renewal or otherwise, are by no means easy of construction. It may be that the words of the section, being only negative, will be held not to apply to any bill of sale which has been registered before the commence- (a) Conveyiinfinp Act, 19JS2, s. 8. (6) Low c. McGill, 12 W. H. H2a. (c) Exp. CoUoii, n g. B. I). :<01 ; Ul h. T. 52 ; 32 W. H. 6S ; 47 J. V. r>l«t. Sec. 3. :^8 the bills op sale act (1878) AMENDMENT ACT, 1882. [1882.] ment of the amendment Act, and that Act has been decided not to be retrospective so as to affect bills of sale executed more than seven days before its commencement;*"' nor does it avoid, as against the grantor, bills of sale duly registered under the Bills of Sale Act, 1854, of which no renewal of registration has been made.'" It has not been decided which statute is to govern bills of sale executed within seven days 'before, and registered after, the commencement of the amendment Act. (2) A definition of what is a bill of sale within the Acts will be found in sec. 4 of the principal Act, with which this section and sec. 3 of the principal Act must be read. The effect of the exception will in most cases be to exclude from the operation of the amendment Act absolute bills of sale. Two classes of bills of sale would seem thus to be created, those given by way of security for the payment of money being within the scope of the amendment Act, while bills of sale given otherwise than by way of security will still be governed by the principal Act. This is the effect of a decision, by which the section is held to qualify the whole Act.'"'' A deed absolute in form, but in fact given to secure the payment of money, would seem to be within the amendment Act, and void under sec. 9 of that Act. Absolute and A bill of sale may be absolute, the property in the articles of^aie?"" ^ assigned passing upon the execution of the deed, or con- ditional by way of mortgage to secure the payment of money at a future day ; in which case the property in the goods passes to the grantee, the right of possession remaining in the grantor, who alone can maintain trover until default, when the estate vests in the grantee freed from the condition.'"" By a bill of said in the form scheduled to the amendment Act, the property in the chattels assigned passes to the grantee subject to the proviso, and on the happening of any of the events specified in section 7 of that Act, the grantor's right to the chattels ceases, unless an application for relief is made under the proviso to section 7, or pi-oceedings are taken for redemption.*'' And if the mortgagee has a right to imme- (o) Hickson v. Darlow, 23 Ch. D. 690. (h) Cookson r. Swire, 9 App. Cases 653 ; 33 W. R. 181 ; 52 L. T. 30 ; 54 L. J. Q. B. 249. (c) Swift V. Pannell, 24 Ch. D. 210. (d) Bradley v. Copley, 1 C. B. 68.i ; 14 L. J. C. P. 222 ; 9 Jur. 599 ; Wheeler v. Monttfioi-e, 2 Q. B. 133 ; 6 Jur. 299 ; 1 G. & D. 493. (e) Johnson v. Diprose [1893], 1 Q. B. 512; 41 W. R. 371 ; 62 L. J. Q. B. 291 ; 8 L. T. 485. Ill K HILLS OF SALE ACT (1H78) AMENDMENT ACT, 1H,S2. 3;t Sec. 3. 1882. diate posscssiun, though (•(niplfd witli ii trust to ptrmit the mortgagor to liold until demand, it will ho Hufficicnt to oniihli- him to support an action ; thuH wlu-ro goods vrvrv. assigned as security for an advance, upon trust to permit the assignor to remain in possession until defaidt in payment at a stipulated time, and upon t'urthor trust to sell tlu-m on such default hi-ing made, the assignee, before any default, was hi-ld to have asuHi- cient right of possession tomaintain trover.'"' The possession of chattels by a cestui que trust, in accordance with the provisions of the trust", being in law the possession of the trustee, tlu- latter can maintain an action against a wrong-doer for con- version of the chattels.'*' It has been said that the fair critei-ion to determine aIim-Iuu- and • I ■ 1- iL i.1 coiidilioiiHl whether a transaction l)e a mortgage or not, is whether the hiiiM of sale, remedies are muttial and reciprocal ; but in every case the (juestion is what, u])on a fair construction, is the meaning of the instrument; and the true nature and not the form of the transaction is to be regarded ;'*"' thus a bill of sale, absolute in form, will be within the amendment Act if the real intention was that the property should be held as asecuritj- for the pay- ment of money ; *'" so, if there be evidence of the non-execution or erasun\ ))y mistake or fraud, of an intended defeasance, or proviso for rcdem])tion ; or if tlu^re be a separate defeasance or agreement for a right of redemption, tlie transaction will be treated as a mortgage. There may also be taken into con- sideration recitals in other instruments, payment of interest, the inadequacy of the money ])aid to the value of the property, the fact that the grantee has or has not taken immediate possession under the assignment, jiayment by him or by the grantor of the expenses, insurances, or other outgoings, and other circumstances tending to shew that the assignment was intended to be redeemable.'" Apart from any question under the IJills of Sale Acts, it has been decided that if a mortgage has been fraudu- lently made to appear as an absolute conveyance, it will not be rectified at the instance of those concerned in the fraud : '^' (o) White F. Morris. 11 U. H. 1015; IH Jiir. 5(X); il L. J. (.". I". iKl. (i) Barker r. Furlong [18011, 2 Ch. 172 ; 60 L. J. t'h. «3« : 64 L. T. 411 ; :«• W.R. 621. (c) «<• WatMoii, 25 Q. B. D. 27 ; .W W. R. 607 ; 59 L. .1. Q. B. 391 ; 7 Mor. 165 ; 63 L. T. 260. (./) Miidell r. ThonmH [1891], 1 y. B. 230; 00 L. J. Q. H. 227; (M I.. T. ; » W. H. 2H0. {e) Fi«her on MortgaKes, 4th e.l. 10. ( f) Baldwin r. Cawthomc. 10 Yen. 16\viii;4^ ildcuimMits : that is to say, assignments tor the benefit of the creditors of the person making or giving the same,*** marriage settlements,*^' transfers or U) i'ii«co«>. assignments of any ship or vessel or any share '"*" thereof,'^* transfers of goods in the ordinary (e* i'iii,'o, I.. R. l.'J ^^^. .">97 ; i\ L. .1. Oh. 590. A bill of siilo, duly rv>fi»toi'n hold to protect hiicIi property iitrikinHtau execution issued in Irelimd by iin Kn^'lish creditor un 11 judgment ulitiiined in Rnglnwl (BriK)kis r. tlarrison, H I.. H. Ir. Xt.i). (6) By HOC. 17<>f the iiinendinont Act nothinfr in the Act hhiill upply to any dclKjnturcs issued by any moriKak'c, loan or other incrjrporHted t'(ini]>iuiy, and nccured upon the cupital, Blo<'k or jfoods, rliatl<'U ami effects of such Conipanv. By Mi-c. 1, Bills of Sale .Vet, IMOO, ah amended by nee. 1. Bills of Sale Act, Iffl/l. Ml inHtninient clmrjrinjr or creatiiut any Hccurity on or deolannK truMln of impones of the parties are clearly defined. If the real agreement between the parties is reduced into writing, there cannot be any question of an in- dependent agreement, for the writing is the only evidence of their bargain ; but a document which is not intended to, and does not, express the real agreement between the parties will not, it seems, necessarily amount to an assur- ance within the Acts, or prevent the parties setting up a title under an independent oral agreement'''; the test being whether it is necessary to put the document in evidence to prove ' the transaction and support the title claimed ;•'" unless the wi'iting, when produced, does not affect the rights of the parties, or make them different from the rights they would have before, or if no writing had been referred to.'" Thus where a deed purported to sell chattels to a person who after- wards repudiated the transaction as a purchase, but remained in ])OSse8sion, claiming a lien for the money paid, to which the grantor assented; it was held that as the document did not represent the true transaction, possession taken uud t it did not affect the lien obtained by verbal agreement. "^' In has been observed that a jierson is at Hljerty to evade by wimi isabill of keeping outside of an Act of Parliament passed in derogation '^' or restriction of the leg*al rights and lib(>rties of the subject ;'"' for an Act evaded is not an Act l)roken, and though an arrange- ment in contraventionof thetermsof an Actof Parliament would be illegal, yet if its terms have been observed the arrange- ment will be effective, although the mischief aimed at by the Act has not been prevented;'*' thus the Middlesex Registry (a) Ramsay p. Mar(?rett [ISM], 2 Q. B. 18 ; 63 L. J. Q. B. 613 ; 70 L. T. 788. (4) Flory r. Deiinv, 7 Exch. 5sl ; 21 L. J. Exch. 2i3 ; Roevos r. Capper, 5 Bing. N. ('. 13H ; 6 tjcott. 877 ; 2 .lur. 1(»67. (r) Sewlove r. Shru\vr.l)iiry, 21 Q. B. D. 11 ; M W. H. H:r. ; :,7 I.. J. i). U. J7M. (9 L. T. 810. («•) Charlcuworth p. Mills [1892], A. C. 231. (/•) Parker r. Lyon. ". T. L. R. 10. (yl Miifl)oth r. Ashl.'V. 2 I,. U. H. L. Sc. 350 : .10 L. T. 310. per ScllHirne. V. Hi lUm*(lon r. LiipL in. I.. R. 1) Q. B. 17; VJ L. J. Q. H. 17; 22 W. R. 120; 20 L. T. 510. Sec. 4. -i-i THE BILLS OF SALE ACT, 1878. [1878.] Acts have been held not to apply to equitable mortgages by deposit, or to an unpaid vendor's lien, for there is no instru- ment to be registered;*"' nor do the Bills of Sale Acts apply to an unpaid vendor's lien existing independently of any writing,'*' and the same reasoning shews that a completed sale or mortgage of chattels unaccompanied by any writing will not be affected by the Acts, which avoid documents but not transactions. '*■' For these reasons, when a sale is followed by open delivery and taking of possession, the Acts do not apply; ''*' nor do they apply to a pledge of goods, and a document accom- panying a transaction by way of deposit or pledge of personal chattels, the object and effect of which is to transfer their imme- diate possession to the pledgee, is not a bill of sale, although recording the transaction and regulating the rights of the parties.'" So a verbal charge, to secure a loan, on goods in a warehouse, which were transferred into the name of the lender, was held effectual, though accompanied by an un- registered delivery order on the warehouseman ; "^' and where furniture was warehoused as security for a debt, an agreement being dra\vTi up recording the transaction and regulating the rights of the parties, the claimants having paid off the ware- house rent, and taken possession of the goods, the Acts were held not to apply.'"' Piedffc not And in order to give a security by pledge it is not withiii Acts. necessary that actual possession should be contemporaneous with the pledge. There may be constructive possession, as where the borrower handed to the lender's agent the key of the place where the goods were stored, which was held to confer a valid security, though afterwards the transaction was recorded in an instrument which was void under the Acts.'*' (a) Sumpter r. Cooper, 2. B. & Ad. 223 ; Kettlewell v. Watson, 26 Ch. D. 501 j 63 J. Oh. 717 ; 61 L. T. 135 ; 32 W. R. 865. (6) Se Vulcan Iron Worke Co., W. N. 1888, 37. yc) North Central Wagon Co. r. Manchester, Shefflehi and Lincolnshire Ry., 35 Ch. D. 191 ; 35 W. R. 443 ; 56 L. J. Ch. 009 ; .56 L. T. 755. (d) Shepherd i-. Pulbrook, 59 L. T. 28S ; Marples v. Hartley, 1 B. & 8. 1 ; 30 L. J. y. B. 92 ; 7 Jur. N. S. +«> ; 9 W. R. 33t ; 3 L. T. 774. (?) Jixp. Hubbard, re Hardwick. 17 Q. H. D. 090 ; r,r, L. .T. Q. B. 490 ; 3.'') W. R. 2 ; Mor. 24iO ; 54 L. J. Q. B. 4.3; 33 W. R. 22rt; 61 L. T. 795. (/) GrijTK r. National Guardian Assurauco Co. [1891], 3 Ch. 206 ; 39 W. H. «84 : M L. T. 787 ; 61 h. J. Ch. 11. ig) Wilkinson v. Giraud, h T. L. R. 260. (h) Hilton V. Tucker, 36 W. R. 762 ; 59 L. T. 172 ; .39 C. D. 609; 57 L. J. Ch. (•73. TllK UIIJ.S OK SAl-K ACT, 1H7K. to SeC. 4. [1878] HuL where gouils are left in the possehsioii of tlio selh-r. every ddcuraent on which the title to them depends should be treated as a bill of sale and regisron-d, and care should be taken tliat such ilocument ai-e proj)erly stainpi-d, for l)eiiig created l)ills of sale by the section, it would seem that the ordiiuiry apjiraise- ment, receipt, or agreement stamp would not be suflicient. Where the transaction is by way of security, regard also should be had to sec. 9 of the amendment Act; for if the arrangement between the parties cannot Ijo in the foi-m in the schedule to tliat Act, it cannot be made at all. "' The expression " transfer " in the section means a docu- ment which, though not in form a bill of sale, assumes to transfer the property in goods in the same way as a bill of .sale would.'*' Declarations of trust in chattels are not recjuired to be in DeilarationH of writing l)y sec. 7 of tlio Statute of Frauds ; but if contained "''^*" " in any document require registration under the Acts. Every defeasance, condition, or declaration of trust is to be deemed part of, and registered with, the bill of sale."' By sec. 1, Bills of Sale Act, 1890, as amended by the Bills of Sale Act, 1891, an instrument charging or creating any security on or declaring trusts of imported goods, given or executed at any time 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, shall not be deemed a bill of sale within the meaning of the principal or amendment Acts. Declarations of trust in chattels personal might be created by parol, upon the donor, by clear, unequivocal and irrevocable words, declaring himself or some other person A trustee.'"" If a person expressly or impliedly constituti's himself a trustee of personalty, that is a trust executed and capable of being enforced, although without consideration, but whore the intention is to make an actual gift and not merely to declare a trust, the settlor must have done everything which according to the nature of the property is necessary to be done in order to transfer it, for there is no equity to perfect an imperfect gift.''' (o) Exp. rnrsonR, re Townsend, 16 Q. B. D. 632 ; 31 W. K. 320; C3 h. T. 897 j i>5 L. J. g. ». i;J7. (i) Ex}>. Hul)l)arfl, re Hard wick, 17 Q.B.D. 600. (r) Sec. 10, siil)-«cc. 3 [1878). (rf) Pockhain r. Taylor, 31 Beav. 2i4. (*■) Miln)y o. Lord. 4 De G. F. & .1. a«4; 8 Jiir. N. S. him-, .TonPf r. Lock, 3 1,. .1. Ch. 117 ; U W. R. UO; 11 Jur. N. 8. 313 ; L. R. 1. Ch. 28. B Sec. 4. 46 THE BILLS OF SALE ACT, 1878. [1878.3 An hypothecation note given on obtaining an advance from bankers, whereby the grantor undertook to hold goods in trust for his bankers, and to hand over the proceeds when received to the amount of the advance, has been held a declaration of trust without transfer within the section.'"' Under the repealed statutes, the term " bill of sale" was held to include any assurance of chattels personal by which the property was intended to pass to the assignee, but did not include a document by which no property was intended to pass. Thus it was formerly decided that a mere memorandum or receipt for purchase-money of goods, not intended to operate as a record of a sale,'*' a receipt with an inventory, '■■' or memorandum''" attached, did not require registration, nor did a receipt and iaventory given on an absolute sale by the sheriff.'*' It was, however, intimated that a receipt for goods might operate as an assurance of chattels ; and a receipt appended to an inventory of furniture and effects, " for the purchase-money in respect of the goods mentioned in the foregoing inventory," was held to require registration, as within sec. 7 of the Bills of Sale Act, 1854.'^' It seems doubtful, however, whether an inventory and receipt, by separate documents, not intended to be operative in connec- tion with each other, could be regarded as an inventory of goods with receipt thereto attached.'*" Rt^ceipt-. But it is now settled that a receipt, or receipt and inven- tory, in order to be a bill of sale, must amount to an assurance of personal chattels at law or in equity, as altering the rights of the parties, either as regards the property in or possession of the goods : and where there is a complete contract of purchase and sale, independent of any document, the receipt being given merely as an acknowledgment of money paid, the Acts do not apply, for their effect is to invalidate documents, and not transaction.s, and to leave unimpeached any title acquired otherwise than by a l)ill of sale.'*' But if the document or (a) R. V. Townshemi, 15 Cox C.C. 466. ( i) Byerley v. Prevo.st, L. R. 6 C. P. 144 ; Hale v. Met. Saloon Omnibus Com- pany, 28 L. J. Ch. 777 ; 4 Drewry, 492 ; Thomson v. Barrett, 1 L. T. N. S. 268. (c) Allsopp V. Day, 7 H. & N. 457 ; 31 L. J. Ex. 105 ; 5. L. T. 320; 10 W. R. 135 ; 8.Jur. N. S. 41. (d) Graham d. Wilcockson, 46 L. J. Ex. 55 ; 35 L. T. 601. (e) Woodgate v. Godfrey. 28 W. R. 8« ; 5 Ex. D. 24 ; 49 L. J. Ex. 1 ; 42 L. T. 34. (/) Exy. Cooper, re Baiim, 10 Ch. D. 313 ; 39 L. T. 521 ; 27 W. R. 298; 48 L. .]. Bank, 4() ; ICxp. Odell re Walden, 10 Ch. D. 76 ; -iO L. T. 333 ; 27 W. R. 274; 4S L. ,T. Bank. 1 ; Exj>. Newport Co., re Bami)field, 20 W. R. 925. iff) Manchester, &c., Ry., v. North Central Wagon Co., 13 App. Case.i, 554. (h) North Central Wagon Co. v. Manchester, Sheffield & Lincolnshire Ry., 35 C. D. 191 ; 35 W. R. 443; 56 L. J. Ch. 009 ; ."je L. T. 755. THE HILLS OF SALK ACT, 1H78. 47 Sec 4 [1878 ] ducumeals t'onn tho wliule contruct on wliii-h titl»* to ili< chHttoln restH, it .seems that registration will still In- necf>- sary'*' ; and tlie following cusi-s. it is apprehended, depend, to a great extent, on this preliminary question of fact. (loods in a defendant's possession were seized under a fi-./a., R«cei|iU. and on the .same day sold by tho sheriff to the execution creditds.'" Agiin, when the holder of a liill nf (a) Newlove r. Shrewsbury, 21 Q. H. T). II. (6) Maruden r. Mondowx, 7 Q. B. D. so. (c) Wonljraie r. Godfrey, 6 Ex. D. 2*. (d) Hfkydnn r. Urowrn, 69 L. T. 810. (#) Rnmsey r. ^liirjfrett [lM9ll, 2 Q. D. H. 11 li Sec. 4. 48 THE BILLS OP SALE ACT, 1878. [1878.] sale made an offer bj- letter to a bailiff who had seized the goods in execution, to buy them by valuation, paying their value in excess of his security, to which the bailiff verbally assented, the goods then being valued and delivered to the purchaser who paid the price ; an inventory handed to him by the bailiff, on which was a memorandum of the sale, was held not to require registration.'"' Receipts. The grounds of the decisions would thus appear to be that the sales Avere absolute, and the purchaser's title did not depend upon the documents, which were not the medium of transfer; and although a document maybe in form, a receipt given on the sale of goods, if such document really is an embodiment of the contract made by the vendor with the purchaser, and was so intended by the parties, it amounts to an assurance, and must be registered as a bill of sale.''*'' Thus, Avhere goods seized by a sheriff were, by leave of the court, sold privately, a receipt given by the sheriff to tin- purchaser, " Eeceived from the sum being for the goods, chattels, and effects now in and upon tlic premises , which were seized by the sheriff of under and by virtue of a writ of fi. fa., and hereby sold as far as he lawfully can or may, without any warranty of title, and with the consent of the defendant , under order of the Master, dated &c.,'" was held to be a bill of sale within the Bills of Sale Act, 1878, and void, being unregistered, as against an execution creditor who seized the goods while in the defendant's apparent possession.''"' And a receipt reciting a sale of chattels, and letting them to the vendor for a rent, with a. proviso entitling the purchaser to enter and take possession if the rent, should be unpaid, or if execution should issue against the goods, was held to be merely a colourable bill of sale. '<') But it would seem doubtful whether, in the case of an actttal sale, a receipt, coupled with an agreement for hire or repurchase would 1)6 within the Acts.''' Again, where a person bought furniture of a judgment debtor, taking at the same time a receipt for the purchase- money, and shortly after removed the goods, which (o) Grace c.Gard, 6T. 1,. R. 74. (6) Marsden c Meadows, 7 Q. B. D. 80. (c) Exp. Burgess, rr Hood, 42 W. R. 23 ; 10 Mor. 231 ; i R. 502. \d) Phillips r. Gibbons, h W. R. 5127 ; 29 L. T. O. S. 01. (e) Manchester, Hhefflelil cV Liurolnshiro Ry. v. North Central Wagon Co., 18 App. Cases, .5.'>4. THK HILI.S OK SAM-; ACT, 1M7H. ■»<• gee. 4 [1878.; wen^ siihscijiu'iitly phicid in aiiotlMT lnms*- tiikcii \>y tin- imrchoser. who lot it furiiiHh«'d to tht* jiid^jnifiit (Ifbtor. It WHS held iiH iij^iiiiist iin ««x«'f>utioii croditor of tin- judRmeiit di'htor tluit tlu" piirchiiHcr hml iiciiuircd n pood title apart t'loin tlio rcreipt, which, thcroforc, was not afTfCted l>y the jjrin- ••ipal Act. "' And whero thcro was a vorhal agrcomciit for the .Halo of goods, the price being paid and the goods delivered, the sale was held perfect and complete, and was not alTected by an unregistered inventory and receijit given at the same time.'** The owners of a nuichino, in tin- possession of an intending purcha-ser mider a hiring agreenicitt, verbally made over the property in the machine and their interest in the agreement under which it was held, as security for the payment of money, iiidi)rsiug on the agreement a receipt for what the lender paid, as on a .sale, which receipt the Court found did n9 I,.T. ins. (<•) Newlove r. 8hrow«lmr.v, 21 Q. B. P. II. (iiyinc'nt of tin- liiif mifjlit liavc lii'L'ii inserted in sueli an aj^reenient, and was not a fraud on the l>aiikrii[)t hiws ;'*' and a douii.se of premises with tlie H.\tiire«, nuichiiu-ry. and apparatus thereon, at a rent payable in iidvunce. with a proviso that on non-payment of the rent or non-ol>ser\ance of the covenants the lessors mi^lit re-enter, l)iit that if the lessees should punctually pay tiie rent and observe the ci)V<»nants. they should, at tho expiration of tin- term, be absolutely entitled to all fixtures and maehineiy thereby demised, was held not to require registration. '' Under a hirinjr airrunctual payment, the owner was held entitled to take possession on the hirer's default, althouf^h the hirer tendered the instalment in arrear.'*" A purchaser or pledgee of goods l)uying and taking delivery in good faith from a person in posse.ssion under a hire-purchase agreement, has l)een held to acquire a good title against the true owner. l)y virtue of section !♦, Factors Act, 1889.") The words assignments, transfers, and other assurances of A^^uraiiceK of [)ersonal chattels, were to be found in the Bills of Sale Act. 18:4, P,*;,XT! and were probal)ly inserted in the ])resent seciion to include documents or dealings of the same class, but not expressly within the words of the first part of the definition. They have been held to apply to an agreement for the sale of a business, of which the ])urchaser was given i)ossession, pro- viding for ])ayment of the purchase-money by instalments with a lien or charge over the property sold in favour of the vendors for the balance of unpaid purchase-money.' '^' So where at a sale of goods by auction, the auctioneer's clerk signed the purchaser's name in a book containing the c(m- ditions of .sale, tho auctioneer also signing for the vendor. Imt the requirements of sec. 17 of the Statute of Frauds were not (.i) Button r. Hpowii, 46 L. T. .•<*« ; 29 W. R., 9»s. (A) Leman r. Yorks Wa(?on Co., 60 L. .1. Ch. ml ; 2!» W. K. MW;. (e) Exp. SorKeaut. re Geldcr, W. N. 1881. 37. (J) Cramer v. Gilen, 1 Cab. 4 K. \r,\. («) Lee r. Uutler [1803], 2 g. B. MH ; Helbv r. .Matthews, W \V. U. 5U ; ! l«Hj L' Q. B. 262 ; 70 L. T. 837. (/) Coburn v. Collins, 36 Ch.'D. :17.< ; '.C L. J. Ch. .'.<« ; 36 W. R. 610 ; 96 L. T. 131 Sec. 4. [1878.] 54. THE BILLS OF SALE ACT, 1878. Powers of attorney. Licences to seize. otherwise complied with, and the goods were left in the seller's possession, it was held that, as against an execution creditor, the memorandum in the auctioneer's book, without which the sale would have been invalid and incomplete, was an assurance of chattels and required registration. '"' (2) It has been decided that a bill of sale may be executed under a power of attorney, even though such attorney is the grantee. Two debtors covenanted in case of default in certain payments to execute such a bill of sale as their covenantee's solicitor might reasonably require, and in case of refusal irrevocably appointed the covenantee their attorney to make, execute, and deliver such bill of sale. The Court refused to restrain the covenantee from putting this power in force by executing a bill of sale in proper form, intimating that the power was no more than a contract to do what the Court would have ordered to be done in an action for specific per- formance. '*' Having regard to the provisions of the amendment Act, licences to seize will seldom now be met with in practice, but some consideration of them is still necessary. A licence to take possession of chattels, as security for a debt, is a bill of sale within the amendment Act, and void unless in the statutory form;*''' but only such documents fall within the definition of licences to take possession as are consistent with possession of the goods remaining with the grantor, and if it was never intended that possession should remain with him, but that possession should at once be given to the grantee, the definition does not apply.'"" Thus, an auctioneer at an execution debtor's request agreed to pay out the sheriff, the man in possession to hold for the auctioneer, who was to sell the goods by auction, and after repaying his advance and expenses return any balance to the execution debtor. The auctioneer paid out the sheriff, «nd took his receipt, the execution debtor at the same time giving the auctioneer an authority to hold the goods, and sell on the agreed terms. The bailiff remained in possession for the auctioneer, and the next day the execution debtor gave a bill of sale over the goods to a third party, who on the auctioneer (a) Evans 0. Roberts, 30 Ch. D. 196 ; 56 L. J. Ch. 962 ; 35 W, R. 684 ; 67 L. T. 78. (6) Furnivall 0. Hudson [1893], 1 Ch. 336. (c) Exp. Parsons, re Townsend, 16 Q. B. D 632; 34 W. R. 329; 53 L. T, 897 ; 66 L J. Q. B. 137. id) Exp. Hubbard re Hardwick. 17 Q. B. D. 690. THE BILLS OP SALE ACT, 1878. 5r> See. 4. [1878.] removing them, sued liim in trover. 'IMie Court of Appejil held that the iiutliority WiiH within the Acts and void;"' hut the House of Lords reversed the decision, hohling that as the written authority or mtindate did not constitute the title, and was not intended to, and did not come into operation until possession had been actually transferred from the sheriff to the auctioneer, it was not a licence to take possession, or an assurance, or otherwise a bill of sale.'*' As has been seen an agreement purporting to let goods on hire, but in fact given and taken to .secure a loan, with power of seizure on default in payment of hire, may amount to a licence to seize within the section, where the person letting to hire was not owner of or entitled to the goods, apart from the -jupposed hiring agreemunt.""' The common law does not recognise the doctrine of J^'J^/""'''' ^ hypothecation so as to permit a debtor to create a general lien upon all his goods, in the hands of whomsoever they may be, in favour of a particular creditor, but permits him to grant a right to seize and sell a specified chattel, or all his goods and chattels generally, on non-jiaynient of a debt. Such a licence to seize gives the licensee no right to follow the goods into the hands of third parties, is available only so long as the goods remain in the debtor's possession and continue his property,'*" and unless coupled with a grant or interest, is revocable though under .seal,''' and is discharged by the grantor becoming bankrupt, or effecting a composition.'-^ or by his death.'"' It confers no title to the goods until actual seizure, but when executed vests the property in the licensee; *' and if the words specifically include property upon premises to be occupied by the mortgagor during tiie con- tinuance of the security, might be extended to crops and other chattels on land or premises to be afterwards occupied or built. '"' A licence to seize cannot be assigned or granted to another so as to confer on him a right of seizure.'-'' {a) Mills r. Charlesworth, 26 Q. B. P. 121. (6) ChRrlcsworth v. Mills [1892], A.C. 231. (c) Re Watson, 25 Q. B. D. 27. ( building agreement, where neither mortgagor nor mortgagee are owners of the land; thus, where a liuilder mortgaged a building agreement, together with :ill plant and materials then or thereafter on the premises, giving no express power of sale, bnt empowering the mortgagee in certain events to take possession of the premises and all plant and materials, and complete the buildings, the mortgage was held to be a bill of sale as regards plant and materials, void for want of regis- tration as against an execution creditor. ' And where the lessee under a building lease assigned 1»3' way of mortgige the demised promises and houses in course of erection, together with all bricks, timber and other build- ing materials then or thereafter on the promises, ]jroviding that all such nuiterials should when ijrought on the j)reniises be considered as immediately attaching to the land, and em- powering the mortgagee in certain events to seize the building materials and complete the buildings, and on default in pay- ment to enter on the premises and sell them and any materials thereon, either together or in p.T reels, the mortgage was held a l)ill of sale as giving power to sell the jiersonal chattels apart from the land, and was so far void.'*' A brewer's lease authorizing seizure of chattels on defauit in payment of an account current has been held to require regi.st ration ;'-'^' and would Im- a liill of sale within (a) Et,i. Ncwitt, re Garrud, 16 Ch. D. 522 ; 21* \V. H. :tU ; 44 L. T. 6 ; 51 L. J. Ch. 361. (4) Recvt'H r. Bnrlnw, 12 Q. B. D. 4.W M L. .1. Q. H. 192; 32 W. R. 672 ; M L. T. 782. (r) Sec. .-{, clause 2 [1882]. (t. (c) Green r. Marsh [1892] 2 Q. B. 330. (d) Reeves v. Barlow, 12 Q. B. D. 430 ; exp. Hubbard, re Hardwick, 17 Q. B. D. 090. THK BILLS OK SALK ACT, 1878. r>» SeC. 4. [1878.] by the plaintiff without sati-styinff a chiim foroxj)en.>ie.s paid by hitn as ajjjunt, contomiinsf that thi» aj^reoinent was a bill of salt- as coiiferrinEf a right in equity to the goods. It was held that as the plaiiitifT ac(juired no right to any spi'cific goods until they luul been delivered to him. but was only entitled to retain them when received, his right depended on possession, and was a legal, and not an equitable right, and was not within the section. ''"' An agreement for a bill of sale, if relied on as an equitable At:r,M-in"nf« assignment of pro])erty, retjuired regi.^tration under the Bills of Sale Act, 1854;'*' thus, a document undertaking to hold goods at the disposal of third parties, and to transfer them when required to do so, was held a bill of sale.'*"' The words of the section limit its application to cases where a right in equity shall be conferred to personal chattels or to any charge or security thereon ; thiis, a deed by which a debtor covenanted that if the del)t 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 as security, was held to require registration as a bill of sale.'*" Where a sum of money is advanced on the faith of an absolute ])romise bv lib.' dei)tor to give a bill of sale, the sum so advanced is to be considered as advanced on the security of the bill of sale, which stands on the same footing as if given at the time of the advance,'*' but .such promise or agreement, if in writing, and relied upon as conferring an e(|uitable right to a security over chattels, would seem to l)e :i l)ill of sale, requiring regis- tration;'^' though under the provisions of sec. 9 such an agreement would probably not be an effectual security. But an agreement to give a bill of sale does not require registration where the bill of sale has been given in pursuance of the agreement, and duly registered, although the agreement is relied on to support the hntin fiilm of the transaction.'" (a) MorriH c. Dolobbel-Flipo [1892 1 > I'll. 3.i2 ; 00 L. T. 32^) ; 40 \V. K. 482 ; «1 L. J. Ch. .ilS. (4) Kx}>. MncWuv, rf JcavouA, L. H. ^ Ch. tili . »2 L. .1. Hank, 68 ; 28 L.T.H2H ; 21 W. R. mi. te) Exp. ConuinK, re Steele, L. R. Ill Eti. 41 1; 21 W. R. 784; fsi>. Monla»n»i', rf O'Brien, 1 Ch. D. 564; '24 W. R. .300 ; :U I,. T. 197 : BaRhott r. Normun, 41 L. T. 787. id) Kdwards r. Edwanls, 4.5 L. J. Cli. :m ; 24 W. R. 713 ; 2 Ch. D. 291 ; 34 L. T. 172. (-•) Harris r. Rickott, 1 H. >V N. 1 ; :.n I,. .1. Kx. 107 ; Meroer r. rfUThon, L. R. 3 Kx. lOl; 37 L. J. Ex. r,\; Hi W. K. t^^«i; Is L. T. 30; exp. Kinif, 2 Ch. U. 256; 4o I,. J. Bank, 100; 24 \V. R. 5.59 ; 34 L. T. UVi. (/) Eilwarils v. Edwards, 2 i;h. D. '201. (g) Ex,,. Hauxwell, re Hemiuinjfway, 2.3 Ch. D. 620 ; H L. T. 742; 31 W. R. ni ; 52 L. .). Ch. 737. Sec 4. 60 THE BILLS OF SALE ACT, 1878. [1878.'] Although a mere contract to lend or borrow money on mortgage will not be enforced,'"' specific performance has been deci'eed of an agreement to execute a mortgage in consideration of a debt due, or of an advance actually made, unless the money be repaid.'" It would seem doubtful how far an agreement to give a bill of sale would now confer any security, but it would be evidence of the good faith of a bill of sale afterwards given and registered. It has, however, been decided that the Court will not restrain the execution of a bill of sale in a form to which no valid objection can be taken, which a debtor has for valuable consideration covenanted to execute, appointing in case of refusal the proposed grantee his attorney for the purpose ; for in the absence of a power of attorney the Court could order specific performance, and on the grantor's non- compliance could, under section 14, Judicature Act, 1884. nominate a person to execute the bill of sale.'""' As^igumouts (4) By the Deeds of Arrangement Act, 1887 (50 &51 Vict., for the benefit -,,,. iotiia x-^i ofprecUtors. c. 57), deeds Or arrangement, as denned by the Act, tor the benefit of creditors generally, are declared void unless regis- tered within the time and with the formalities prescribed b}- the Act. An assignment for tlie benefit of creditors, to be within the exception of the Bills of Sale Acts, must be for the benefit of the creditors generally ; but if it will include any creditor who chooses to accede to the arrangement and sign the deed, there being nothing on the face of it by which any ci-editor i« excluded, it will be sufficient ; thus, a deed in tlu; form of a deed poll whereby the creditors, "whose names and sL'als were thereunto subscribed and set," agreed to accept a secured composition from their debtor, who assigned bis l)roperty to the surety, was held within the exception of this s.'ction.''" And so was a deed whereby the debtor assigned all bis ])ropcrty to a surety absolutely, the latter joining in promis- sory notes for the composition, and covenanting with the creditors to pay them;''' and an assignment to trustees for " the parties hereto who shall execute these presents (<() UoRcrs V. Challis, 27 Beav. 175 ; 29 L. .1. Ch. 240. (i) Ashton v. Corripan. 13 Kcj. 76 ; 41 L. J. Ch. 96 ; Hermann v. Hodges, 16 K(|. IH ; 43 L. J. Ch. 192. (c) Furnivall v. Hudson [1893], 1 Ch. 335. { l>e for tlu> beiu'Ht of nil the creditors ; "' 118 also was uii iwsigntiUMit for the In-nelit of all such creditors as sliotild elect to execute the same.'*' But a deed exi)ressed to be mode for certain creditors named AnaiKiimontfl therein, with a resulting trust for the grantor, was held to ,,f creditord. require registration;''' and a similar deed has been lield void under the Statute 1;? Eliz. cap. o;''" tlie decision depending, however, on the special circumstances of the case;'" so an instrument authorizing a creditor to take possession of a debtor's goods and sell them, paying out of the proceeds the debts due to himself and other creditors, was decided to be a l)illof sale requiring registration.'-" Before the passing of the Bills of Sale Acts, where a debtor, pending suit and before execution, being then insol- vent, assigned all his effects to trustees for the benefit of his creditors, and possession was immediately taken, the assign- ment was held valid against an execution creditor;'"' for if a deed is executed for the benefit of one or more creditors, and is not meant as a cloak for retaining a benefit to the grantf)r, it is not void within the Statute of Elizabeth, although it may operate to the prejudice of some particular creditoi-. '" A conveyance or assignment by deed of all a debtor's pro- perty for the benefit of creditors is an act of bankruptcy,'"' but cannot be relied on to ground a petition by parties acquiescing in the arrangement. (5) The obiect of this exception is to exclude from the Muirioge . ,' . . 1 . . • ^ er ^ e Belt lemonu. operation of the Acts instruments the intention and enect of wliich is, not merely assign goods from one person to another, but to create a trust for the purpose of carrying out a provision for a marriage. The exception in the section will therefore include a memoraiuhmi of a<;reeuient for a (a) Ashfonl c. Tuite, 7 Ir. C. L. Kep, 01. (b) Paine c. Matthews. 63 L. T. s:i. (e) R. r. tVeesc, 2 C. C. R. 105 ; iJ L. J. M. C. 51 ; 29 I,. T. slC 2J W. H. CS. (./) Si>oiicer r. Slater, +. Q. B. D. 1.1 ; 48 L. J. Q. B. 204 ; 27 W, R. 134 : :«l L. T.I 124. (f) BoWlero p. London 4 Westminster Di.scount Co., ."1 Kx. P. 47 ; !W W. R. 154 ; 42 L. T. 56. (/) ^j-;i. Parsons, re Townsend, .U W. R. 32». (ff) Pickstock r. Lystcr. 3 M. 4 H. 371. (A) Alton r. Harrison. L. R. 4Ch. 622; 3H L. J. fli. mill; 21 1,. T. 2s2 ; 17 W. H. 10»t. (i) Sit Exit. Mav, re Spackman. 24 Q. B. D. 72s ; 3s \V. K. 407 ; 5li I,. .1. g. H. 806 : 62 L. T. 840." (./) Et}:. Strny, 3(1 h. 3. Bank. 7 ; L. R. 2 Cli. 374 ; Hi I,. T. ■::,i^ : l.l W. «. HOO. Sec. 4. «2 THE BILLS OF SALE ACT, 1878. ^1878.] marriage settlement, although informal, and not under seal ; thus, where an agreement provided that if the intended marriage should take place all real and leasehold property, and all personal estate and effects, of or to which the settlor was then possessed or entitled, should be assigned to a trustee upon the trusts thereby declared ; and that at any time after solemnization of the marriage the settlor would, on request, execute a proper settlement for carrying the trusts into effect, it was held that goods agreed to be settled were protected from execution creditors, though tlie agreement was unregistered, and no settlement was ever executed.'"' s*ui '^^^ts ^^^ post-nuptial settlements are not within this exception,"'' though it would seem that the effect of clause 2 of sec. 3 of the amendment Act will in most cases be to exclude them from the operation of that Act, the section excepting from the definition of l)ills of sale documents given otlierwise than by way of se- curity for the payment of money. Registration and attestation with the foi-malities prescribed by the principal Act is still necessary, '*■' and if the object of the settlement is to secure pay- ment of money, the amendment Act it seems will also apply. A duly registered bill of sale, given for valuable con- sideration, by which a husV)and assigned to his wife for her separate use furniture which remained in the joint possession of the husband and wife at the time of the former's liquidation was upheld against his creditors ; f"" and furniture purchased by a married woiuan, out of the savings of her .s(,'parate estate, in renewal or substitution for that included iu a marriage settlement, was protected against an execution creditor of her husband; '•■' and so where furniture contracted to Ije purchased was settled upon the intended wife of tlie settlor, with power to trustees to renew or substitute othci- furniture, but the j)urchase Avas never completed, the settlor liuying other furniture, a memorandum of its substitution being indorsed on the deed, the Court of Appeal held the case witliin the exception. '■'■' (u) Wenman c. Lyon [1H91J, 2 Q. B. 193 ; 39 W. R. 519; (J5 L. T. 136 ; CO L. .1. Q. B. 663. (A) Fowler r. Foster, 28 L. J. Q. B. 210; 5 Jur. N. S. 99 ; A^shton c. Bluckshinv, 39 L. .1. Ch. 20.5 ; 9 Eq. 510 ; 18 W. R. :m ; 22 L. T. 197. (c; Casson c Churchley, 53 L. J. Q. B. 335 ; 50 L. T. 568. (//) Exp. Co.x, re Reeil, 1 Ch. D. 302 ; 2-1 W. R. 302 ; 33 L. T. 757. (f) Duncan o. Cashin, L. R. 10 U. P. r>oi; U L. .J. C. 1'. 22.j ; 23 W. R. 561 : 32 L. T. 497. ( f) Courcier v. Banlili, 27 S. J, 276, rilK H(I-LS OF SALK Af'T, 1H7H. RM Sec 4 [1878 ] Mill wlicrc a tnuItT execute*! a settlement upon his iniirriiige liy wliieli lie s«'ttle(l oertain speeific cliattels upon trust for the Iwiiefit of his wife and tlio issue of the marriage, covenanting that all future real or personal estate which he should at any time during the coverture be jiossessed of or entitled to sliould !)»■ assigned to the trustees u]ion the trusts therein' declared, it wius held tliat property ohtained l)y the trader while solvent, but subse(|ue!it to the maiTiage, could not l)e witlulrawji from the claims of creditors, and passed ti> the trustee under his licpiidation.'"' A settlement on an intcTided wife, before and in considera- MarriaKo ncttlc'inciit". tion of marriage, is not a bill of sale, and will l)e supported against the husband's creditors, although, to the knowledge of the wife, he was in embarrassed circumstances at the time of making it; '*' unless, perhajjs, the settlement is on the fa<'e of it so extravagant, and so gi-ossly out of jjroportion to the station of the parties, that it ought to awaken iiupiiry.'''' But if the wife takes the settlement with notice of an availaljle act of bankruptcy committed by the husband, she cannot hold the property against his trustee.'"' When the marriage itself is a contrivance between the husband and wife to defraud creditors, the settlement will be invalid against them;''* and the result will be the same where there is no intention l)y either husband or wife to make or accept a real settlement, but only by means of a marriage and a sham settlement to . Bolhiiul, rr niiit, 43 h. J. Hioik. 10; 17 K(|. l\r> ; Jit L. T. 5i;j ; 'Si W. R. 152. (i) Ciinipioii c. Cotton, 17 \'e». '.iCA ; Fr.iscr c. Thrjiupson, 1 Giff. 05. (r) Exp. McBuniie, 1 De G. M. A G. -Ml. (./) Frwticr r. Thompson, 4 Do (J. 4 J. O.W. (r) Exp. PeriniiKjton 5 Mor. 2*W ; ('oli)inl)ino r. rcnhftU, 1 Sni. Jt liifT. 229. Bnliuer c. Hunter, « K(|. Mi ; JO L. T. U42 ; 38 L. J. Ch. 543. (J") Paniell c. Stoiulmuti, 1 Cab. A E. 153. (.crtHin who (fives valuablo coii- siileniliim for the Hfttlcnicnt, not liointr liinitca to one who Ixivh liv i-nntract of purcliartc anil wile (Hiince c Ilanlinjf, W y. H. I). 732; 57 L. J.\). H. 4<>3; SB L. T. tUiO; 30 W. H. 02U) ; but will not include a pcrxon who ^fivOM n.i vnluublR ^H>nHiilenition,thouiJrhhcniay l)ca purchaMT inthclvirnl son so of the wonl (--r/'. HiUinan, re Pumfre.v, 10 Ch. D. 022 ; U) L. T. 17«). C 2 Sec. 4. 64 THE BILLS OF SALE ACT, 1878. [1878.] 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 (late of the settlement, be void against the trustee in the bankruptcj', and shall, if the settlor Ijecomes bankrupt at any subsequent time within ten years after the date of the settle- ment be void against the trustee in the bankruptcy, 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 without the aid of the property comprised in the settlement, and that the interest of the settlor in such pro- perty 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 l)eing monej^ 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 his bankruptcy. '"> The expression " void " in this section must be construed as voidable, and a purchaser, in good faith and for value, before avoidance, whether Ijuying with or without notice of the voluntary settlement, has a good title against the settlor's trustee in bankruptcy.'*' But a purchaser will not be compelled to complete a purchase from trustees of a settlement subject to avoidance under section 47, Bankruptcy Act, 1883, even though the settlor offers to concur. ''"' Shipping (6) The expression " ship or vessel '" in the section does trill isfcrs, ' not mean what is technically so called, l)ut includes whatever in popular language is a ship or vessel ; and it seems that anything ordinarily called a vessel, beyond a mere boat, is within the exception ; thus it was held that a dumb barge propelled Ijy oars, carrying goods Ijut not passengers, was protected.'''* (o) The operation of the corresponding sec. 91, BankruptcyAct, 1869, was confined to traders ; and sec. 47 of the Act of 1883 does not apply to settlements executed by non-traders before the commencement of the Act {exp. Todd, re Ashcroft. 19 Q. B. D. 186 ; 56 L. J. Q. B. i;«; ."57 L. T. 835 ; 35 W. R. 676). (4) Exp. Norton, re Brail [18!t3], 2 Q. B. 381 ; 62 L. J. Q. B. 457; 69 L. T. 323; 41 W. B. 623 ; 10 Mor. 166 ; exp. Brown, i-e Vansittart [1893], 2 Q. B. 377 ; 62 L. J. Q. B. 279 ; 68 L. T. 233 ; 41 W. R. 286. (c) Be Brings & Spicer [ 1891] 2 Ch. 127; 39 W. R. 377; 64 L.T. 187; 60 L. J. Ch. 614. (rf) Gapp V. Bond, 19 Q. B. D. 200 ; 35 W. R. 683 ; 56 L. J. Q. B. 438 ; 57 L. T. 437. TRK HIL[,S OF SALE ACT, 1R78. «.■) Sec. 4. [1878.] 'riic exception lias Ween lield to iip|)ly. although tlit> Nhip "is iiiifinislied ; niul wln'ii a shipbuilder, at a creditor's nipn'st, loilgcd with him as security for a d<'l)t the Vjuilder's cer- titicHte, which, describing the ship and her engines, stated that she had l»e«'n l)uilt for the creditor, but in fact she was not completed, nor were her engines in position, it was held that the creditor had obtained an equitable mortgage of tiie debtor's interest in the ship, which did not recpiire registra- tion.'"' By the Merchant Shij)ping Act transfers or mort- gages of ships, or any share therein, are required to be by bill of sale in a prescribed form, and take priority according to date of registrati(m, but although the transfer or assign- ment is not in the form given by that Act, and is not registered, it will not be within the Hills of Sale Acts.'*' Under the W((rd "ship" in the mortgage of a shij) with its appurten- ances, in the statutory form under the Merchant Shipping Act, all articles and materials, whether stored or in use, necessary for the iu5complishment of the ship's voyage, and on board at the date of the mortgage, will ])ass ; and all articles and materials of the like kind snl)stituted subse- quently to the mortgage will also pass ; such articles and materials will therefore be protected by the mortgage without registration under the Bills of Sale Acts.'*"' And by sec. 36. Merchant Shipping Act, 1894, a registered mortgage of a ship or share shall not be aflfected by any act of bankruptcy committed by the mortgagor after the date of the record of the mortgjige.notwitlistandijig that the mortgagoj-at the time of commencement of his ljankru])tcy had the ship or share in his possession, order, or disposition, or was reputed owner thereof, and the mortgage shall be preferred to any riglit. (;laim. or interest therein of the other creditors of the baiik- nipt or any trustee or assignee on their behalf. (7) The application of this exception must necessarily vary Tnui>f.:!r8miho lip .. , . 1 , . 1 ordiiiHry c<>i»>u*iii''"». to holil their stock at the vender's disposal, and from time to time, when retpiired to do so, to execute to thom a valid and effectual transfer and assurance to provide for payment of all moneys then due, but no bill of sale was ever called for, nor was possession obtained, the document was held void, not huvini^ l)een registered. '' So an agreement was held not t(» be a transfer in the oidinary course of business, whereby the owner of a sugar plantation, in consideration of a loan, Ixirrowed from a merchant for the expenses of getting the crop and making the sugar, agreed to deliver the croj) of sugar, when made, to the merchant to sell on commission and retain his debt out of the proceeds.''' And an hypothecation note, given on obtainin;^ an advance, whereby the grantors undertook to hold goods in trust for the lenders, and to hand over the proceeds when received, to the e.xtent of the advance, was held a bill of .sale.'**' The expression " personal chattels " shall mean whiu iu. ^oods, furniture, and other articles capable of com- /hmteu. "plete transfer~^y delivery, <^^ and (when separately '•* •'"i-""'*- a8si<;ned"or charged) f ixtures and p-owing crops, hut shall not include chattel interests in real estate, iiur fixtures (except trade machinery as hereiuaftej' defined), when tis^gned together with a freehold or leasehold interest in any land or building to whicli they are attixed, nor growing crops when assigufij together with any interest in the land on which they grow,'2) nor shares or interests in the stock, funds, or (2) ihuo «». securities of any government, or in the capital. or property of incorporated or joint stock companies, nor chosesin action,*^' nor any stock or produce upon (3) pmn nt. any farm or lands which by virtue of any covenant or agreement ov of the custom of the country ought (>i) GriiCK <'■ Natioiml Guardian Aj«8urance Co. [1S81], 3 I'li. 2. GrifEthe, 2 C. P. D. 212; 25 W. R. 313; 46 L. J. C. P. 408; 36 L. T. 4; Exp. Payne, re Cross. 11 Ch. D. 539; 27 W. R. 808; 40 L. T. 563. («) Exp. Castle, 3 M. D. & D. 117. (c) Clark o. Crownshaw, 3 B. & Ad. 804. (d) Shaftesbury r. Russell, 1 B. & C. 666; 3 D. & R. 84. (<) Brantom v. Griffiths, 2 C. P. D. 212. (/) Bagnall v. Villar, 12 Ch. D. 812 ; 28 W. R. 242 ; 48 L. J. Ch. 696. (g) Re Gordon, 61 L. T. 299 ; 6 Mor. 150. (*) Exp. National Mercantile Bank, re Phillips, 29 W. R. 227 ; 16 Ch. D. 104 ; 44 L. T. 265 ; 50 L. J. Ch. 231. (t) Clements c, Matthews, 11 Q. B. D. 808; 52 L. J. Q. B. 772. THE BILLS OF SALE ACT, 1878. r;<» Sec 4 [1878] or ohnrpfcd. whero siicli crops wcro artimlly growinR at the time wlieu tlu- hill of sali- wiis cxecnted, or of Hxtiirfs sepanitcly assijriied or charged, and any plant or tnwlr machinery on premises in snhstitnti(tn for any of the like fixtures, plant, or trtuU' machinery specifically descrihed in the schedule to the hill of sale, notwithstanding the crops, fixtures, plant, or machinery assigned are not so specifically described, or that the grantoi' was not the true owner at the time of the execution of the hill of sale. Although the section declares fixtures to be jiersoiuil chattels, they are made so only for the purposes of the Act, and not for all other purposes.'"' It becomes material tf) consider what are fixtures within the section, for an assiirnment of personal chattels, although coupled with an inti'rest in realty, will still require registration. Trade miwhinery is declared personal chattels by sec. .^ of the princij)al Act, excejjt as to the machinery and articles thereby excluded from tlie definition of trade machinery, wliich are not to be deemed personal chattels within the meaning of the Acts ; and, where the security can be .severed, a bill of sale, void under the Acts, has been held effectual as a security over such excluded articles,'*' In its primary sense the word fixtures denotes anything FUturcH. fastened to or connected with the freehold. Articles no further attached to the land than by their own weight are generally to be considered as mere chattels, unless the circum- stances are such as to show that they were intended to be part of the land, the onus of jiroving which rests on those who assert that they have lost their chanicter of chattels ; thus a granary resting ufion straddles built into the ground, but not attached to it, except by its own weight, is not a fixture. '■■' On the other hand, articles affixed to the freehold even slightly, whether by nails, screws, solder, or other penna- nent means, or by being fixed in the soil, are fixtures ; thus doors, windows, rings, keys, are fixtures,'*" and so are chimneypieces, stoves, or coppers, ''' unless it clejirly appears that the articles have all along been treated as chattels, which ((j) Mcux r. Jacobs, L. U. 7 II. L. Ui\ : U L. .1. Ch. *H\ ; il W. R. 62fl : :<2 L. T. 171. (6) Esu. Bvnie re Bunlett, 20 Q. B. D. .UO : f.« L. T. 7(W ; M W. K. 344 : 67 L. J. Q. B. 263 ; o Mor. .«. (r) WiltBhear r. Cottrell, 1 K. A B. fi7J; 17 .Inr. 7.".«; 22 L.J. Q. ». 177. id) LifortlV Caw, 11 fo. 50. (') nnrt>y r. Harris, 1 Q. B. 985; 1 G. A D. 2.34 : .' .lur. OSrt. Sec. 4. 70 THE BILLS OF SALE ACT, 1878. [1878. must be proved Ijy the per.son contending that they have never become fixtures.'"' A bill of sale of fixtures required registration by the express words of the repealed statute, and much un- certainty arose as to whether a mortgage of land, by which fixtures passed, was within the provisions of the Act. By sec. 7 of the principal Act, which applies to all deeds or instruments including fixtures or growing crops executed before or after the commencement of that Act, no fixtures or growing crops shall be deemed to be separately assigned or charged, by reason only that they are assigned by separate words, or that power is given to sever them from the land or building to which they are affixed, or from the land on which they grow, without otherwise taking possession of or dealing with such laud or building, or laud, if by the same instrument any freehold or leasehold interest in the land or building to which such fixtures are affixed, or in the land on which such crops grow, is also conveyed or assigned to the same persons or person. Choscsin (3) Book-debts are not chattels within the Acts, but debts i'Ol'lOll. . . (1-1 due or growing due to a grantor m the course of his trade or business, and included in a bill of sale, may remain in his reputed ownership, unless notice is given of their assign- ment. Book-debts are such debts accruing in the ordinary course of a man's trade as are usually entered by a trader in his trade books.'" If book-debts are assigned, a separate instrument of transfer is recommended; and it would seem that book-debts cannot be included in a bill of sale subject to the amendment Act, as the only things which may be inserted in the schedule to such a bill of sale are chattels personal.*'' Subject to this, an assignment of all book-debts due and owing, or which during the continuance of the security might become due and owing to the mortgagor, operated to pass the beneficial interest in a debt which came into existence after the assignment.*'" A share in a partnership is a chose in action, and is not within the expression " personal chattels," although including (a) Mather v. Fraser, 2 K. & J. 5m ; 25 L. .1. Ch. 361 ; 4 W. R. 387 ; 2 Jiir. N. S. 900. (4) Official Receiver c. Tailby, 18 Q. B. D. 25 ; 35 W. R. 91 ; 55 L. T. 626; 66 L. .T. Q. B. 30. (c) Cochrane v. Entwistle, 25 Q. B. D. 116 ; 59 L. J. Q. B. 418 ; 62 L. T. 852 38 W. R. 587. (d) Tailby v. The Officiiil Receiver, 13 App. Cases 523 ; 37 W. R. 513 ; 60 L. T. 162 ; 58 L. ./. Q. B. 75. TIIK HILl.S (»K SALK ACT, 1M7M. 71 SeC. 4. 1 1878 plant and stuck-iii-trudo ; " ami so i.s iiii usMi^jiiinciit. to Hi'cure tt ticbt, of ull rights under a hiring agreement , \>\ which tlie iiHsignor had let goods im hire to a third person, with authority to tlie assignee on default to exercise all powers conferred by I he agreement, but not purporting to assign the goods themselves ;'*' and even though by the same instrument the goods themselves are assigued.'" It has, however, been decided that an assignment of, or charge on, a debt secured f by a mortgage of chattels, must be accompanied by the same formalities as are essential to make the original security ' effective. " A testator by his will biMjueathed to his wife the right of Chowes in possession of all his pictures during her life, and subject to this bequest gave them to his son for his own absolute use and benefit. Tlie testator's wife retained the j)ictures, and the son executed a mortgage assigning all his share and interest under his father's will, and of and in the sums of money hereditaments and premises thereby devised and bequeathed expectant on the decease of his mother. The son during his mother's lifetime became bankrupt, and it was held as against the trustee, who claimed the expectancy in the pictures, that the mortgage was of a chose in action, and not within the Acts.'" Assignments of choses in action, with their v.-ilidity against assignees and others will be found discussed in the notes to • Ryall r. Rowlcs," 1 Ves. 348 ; 2 W. & T. L. Cases. (4) No j)urchaser or mortgagee of a tenant's cro]) can carry it off a farm contrary to the terms of the lease ; and it is provided ijy statute that no assignee of any Imnkrupt, or under any Ijill of sale, nor any purchaser of the goods, chattels, stock, or cn)p of any person engaged or employed in hus- bandry on any lands let to farm, shall take, use. or dispose of any produce of such lands, or any manure or dressings intended for such lands and lieing thereon, in any other manner or for any other purpose than such l)ankiiipt or other |>erson so employed in husbandry ought to liave taken, used, or disposed of the same if there had l)oen no bankruptcy, assignment, or sale.*^' ( ; S Cli. I). liH ; M W. K. •»;i9 ; :iV. (6| Exi>. Rrtwlinfru, re Duvix. 22 Q. U. D. 193. (c) Kxf,. Mason, rf IwiacHon, OS L. T. .1. 15S. (<<) JHn-id r. Jiirvis, H3 L. J. CL. 10. (») Exf,. Sui>fleton, rt Tritton, « Mor. i'x) ; «\ L. T. 3<)1. (/) 5« Geo. III. c. 60. ». U ; »-r LvWk c. Hart, •.'9 CU.D. 8; .il L.J. fh. ftW ; 53 I.. T. 031. Sec. 4. [1878.] 72 THE BILLS OF SALE ACT, 1878. What is apparent possession. Apparent possession. Personal cliattels shall be deemed to be in the "apparent possession" of the person making or giving- a bill of sale, so long as they remain or are in or upon any house, mill, warehouse, building, works, yard, land, or other premises occupied by him, or are used and enjoyed by him in any place whats(5ever, ' notwithstanding that formal possession thereof may have been taken by or given to any other person. This definition, although not expressly repealed by the amendment Act, will cease to have any practical value as affecting bills of sale executed on or after the 1st of November, 1882, and given by way of security for the payment of money, for the validity of such a bill of sale does not now depend on the question whether the chattels it comprises were or were not in the grantor's apparent possession.'"' As, however, the doctrine of apparent jjossession appears still to apply to bills of sale given otherwise than as security, and questions may arise under the repealed sec. 8 of the principal Act, the cases on the subject are here noted. By that section, a bill of sale not registered within the time and in the manner prescribed is to be deemed fraudulent and void against trustees nnd execution creditors of the person whose chattels are comprised in such bill of sale, so far as regards chattels which at or after the time of such person's bankruptcy or liquidation, or of execution levied, and after seven days from the time of giving the bill of sale, are in such person's pos- session or apparent possession. It should 1)6 noted that two classes of apparent possession are mentioned in the sub-section : — firstly, where the chattels subject to the bill of sale are upon premises occupied by the grantor, and secondly, where they are used and enjoyed by him in any place whatsoever. In the first class there must be an actual occupation, the words "occupied by him" meaning that the grantor should occupy in the ordinary sense of the term, and not including cases where he has merely an interest in a lease ; and when the grantor of an unregistered bill of sale was tenant of rooms where the goods comprised in it were placed, but resided elsewhere ; and having made default in payment, gave up the keys of the rooms to the grantee, who opened the rooms and put his name on some of the goods • (a) Sec. 8 [18B21. 'I'MK niI,LS OF SALK ACT, 1H7H. 73 8eC. 4. 11878. wliicli, liowfvi-r, n-iimiiH'd on the promiat-.s, it wa- IkIiI ih.it th«' j^nintor did not occupy the rooms, and thiit thf ^oocU were not to In- deemed in Ids aiiparent |>o8st'.s.sion.'"' Apiin. where the grantor, who had by an unreji^istered deed mort- gaged a trechoKl liouse and t'lirnitnre to secure n del»t and interest, i-emained in possession, attorning to the mortgagee, and subsequently let the house furnished with the consent of the mortgagee, to whom a portion of the rent was to be paid by the incoming tenant, who took possession ; on the grantor's l)ankruptcy it was hold that the section did not apply, for the goods were not upon premises in the occupation of tin- grantor, nor were they used or enjoyed by him.''"' The doctrine of apparent possession differs tinui that of order and disposition under the Bankruptcy Act. and the consent of the true owner is here immaterial. He may de- mand and endeavour to take possession of the goods; but to avoid the section, there must be something done which takes them plainly out of the grantor's control in the eyes of every- l)ody who sees them."" The doctrine of actual and formal taking of possession has thus been laid down: "The distinction between formal ami real possession seems to have been grounch-d upon the authority of .some recent decisions at law which wi-re then fully considered. The distinction is this ; that if a bailiff is simi)ly put in possession and remains in possession so as to prevent the removal of the goods, but allows everything to go on just as it did before, permitting everything to be used by the debtor and his family, then the goods still remain in the apparent possession of the debtor. There must be .>»omething done which, in the eyes of everybody who sees the goods, or who is concerned in the matter, plainly takes them out of the apparent possession of the debtor."'' Tlii» dicision is illustrated by the following cases : — In ex pnrte Lewis, /*' Henderson," the holder of an un- Apparent ■' POSMJKHU)!!. registered bill of sale of household furniture took possession by sending in a Ijroker's man, who remained in the hou.-'e atid slept in an upper room, but did not remove any of the furni- (u) Robinson r. BriK»?s, L. R. Exch. 1 ; 40 L. J. Rs. 17 ; I'l I,. T. .«t.i. (6) Eip. Morrison if WeHtmy. W \V. R. 524 ; 42 L. T. 15s. (r) Ancona r. Rogers, W L. J. K\. 121 ; :« L. T. 115 : 1 K\. Ii. Js.", . Jt W. R. KMi). (rfl F.Tp. Jnv, r>- Hlpukliorn, L. R. 9 t'li. 607; 22 W. K. '.tor ; M I,. T. 2rto : 4.1 L. J. Bunk. 122, 'p.r Mcllit tin grantor's son, who ke])t them in jiretnises he rented and or( u- pied, they were hold not to be in the grantor's api)areiit pos- session, although he continued to live there ; '*' although in another rase furniture comprised in a hill of sale was held to be in the apparent possession of the grantor, who resided in a house taken by his son, to which the furniture had l)eeti removed.'" Where stock and the goodwill of a business were sold by unregistered det'd, and after the sale the goods remained on the javmises where the business was carried on, which was managed by the vendor, who continued to live on the premises as servant to the purchaser, l)ut the luime over the sho]) was altered, circulars being issued to all creditors, and the sale advertised in the local papers, it was held as against an ••xecution creditor of the vendor that the stock was not iji his apparent possession.'*" Also, when the man ])laced in possession of the grantor's shoji and premises locked them up at night, the servants in the shoj) lieing dismissed, and the bill of sale holdir made an inveiitory of the goods, it being notorious in the iH'ighbonrhood that possession hapt for him and is exercising dominion over them the section will apply." Thus, where the grantor managed a bn.'^iness as servant to the grantee at a weekly salary, and was allowed to reside in the house where (ii) Duvies r. JdticH, 10 W. R. 779; 7 L. T. N. S. 1:J0. (ft) Swire r. Cooksdn, 19 L. T. 7.W. (r) Rt Kmery, il Q. H. 11. K".'.; :<7 W. K. 21 ; r.7 L. J. Q. H. 029. (d) (;it.»)on8"r Hirk.s.)ii. _:u W. U. 1 j o ; .VI h. T.910; 55 L. .1. Q. B. 119. (r) Exp. .Morllock, rr HA^hiini, W.5j.''1ksI, ji. 1«1. (J") Aiicnna r. Ui>>rcrs, 1 K.x. U. 2H5. Sec. 4. 76 THE BILLS OF SALE ACT, 1878. [1878.] the business was carried on, and, as part of his salary, to use the furniture assigned by the bill of sale, the grantee residing elsewhere, it was held that the goods remained in the grantor's apparent possession ; ■" but a chattel pledged is not in the apparent possession of the pledgor, for he has no power of disposal or to act as owner.'*' Apparent Goods may be in the true and actual possession of one posb s.. 1 I person, but in the apparent possession of another ; '"■' thus, where a person, being in custody, gave a bill of sale over cer- tain jewels in the hands of the police, they were held to remain in his apparent possession ;''" but goods comprised in an unregistered bill of sale in the possession of the sheriff under an execution are not in the apparent possession of the grantor, even although the mortgagee has himself taken no ])OSsession,''' and so it would seem in the case of seizure by a duly-appointed receiver.'-^' Such possession, however, must be an actual visible possession ; thus, if the sheriff's officer took possession in the disguise of a livery servant of the grantor it would not be sufficient.'*' The possession of chattels by a cestui que trust, in accor- dance with the provisions of the trust, is in law, for some purposes, the possession of the trustees ; '^' and it seems doubtful whether goods which are the separate property of a wife can be deemed in the apparent possession of her husband when husband and wife are living together.'*' When a wife ljojtLg]it-£«ouLher husband certain furniture in the house where they lived together, there being no formal delivery of the furniture, which remained as before in the house where the parties resided, it was held that the husband's apparent possession was excluded, for as the situation of the oroods was consistent with their being in the possession of either the husband or the wife, the law would attribute possession to the wife, who had the legal title.''* (,/) Pickard v. Marriage, 1 Ex. D. 364 ; 45 L. J. Ex. 5^1; 35 L. T. 3*i ; 24, W. R. 886. (4) Lincoln Wagon Co. v. Mumford, 41 L. T. 655. (c) Robinson c. Tucker, 1 Cab. & E. 173. id) Exp. Newsham, re Wood. 40 L. T. 104. (p) Exp. Saffery, re Bremner, 16 Ch. D. 668; 44 L. T. 324; 29 W. R. 749. (/) Taylor c. Eckersley, 5 Ch. D. 740 ; 25 W. R. 527 36 L. T. 442. (-/) Barker i: Furlong [1891], 2 Ch. 172. (h) Shepherd v. Pulbrook, 4 T. L. R. 642. . (i) Ramsay r. Margrett [1894], 2 Q. B. 18. TIIK lUM-S OK SALK ACTS, 187M AND 1HS2 77 geC 4. [1878. J Iiidei'd it is not necrsrtury that the irriinte«.' shouM liavc un Sec. 4. ficlusivL' possession to tiiki- tlu- ^oods out of the Rmntor'- L'^^o^-J iipimront possession ; '"' nnd nctnal ])osH»'SHioii taken hy thi ^n*antffof an iinn'^istoredbill of sale, even though taken wrong- fully, may exclude the o|ienitionof the Act ; l)Ut a wronK(h)cr or tre.s])aK8er, as for example, a bill of sale holder, who seizes without a proper demand, must take actual physical possession to remove tVie poods from the grantor's apparent possession, although where jxtssession is taken legally it will l)e extended l»y construction of law bi'yond the actual physical possession, and a taking possession of one of 'the things comprised in the deed may amount to possessir)n of all.'*' " Prescribed " means prescribed by rules made under the provisions of this Act. By section 21 of the principal Act, rules may be made and altered from time to time, under the provisions of the Judica- tuie Acts. Certain rules have been issued which will be fountl noted in their places. 4. (1882.) Every bill of sale shall have annexed .^i'^^lel^^^i?, theroto or ^vl*itteu thereon a schedule containing an "^ pro]teny. inventory of the personal chattels comprised in the bill of sale ; and such bill of sale, save as hereinafter mentioned, shall have effect only in respect of the personal chattels specitically described in the said schedule ; and shall be void, except as against the grantor, in respect of any personal chattels not so specilioally described. It is difficult to reconcile the two cliiuses of the section, by the first of which th(> l)ill of sale shall have effect only in respect of chattels specifically described, while the second saves its avoidancr- against the grantor in res])ect of chattels nut ful- filling that condition; but tht> proper construction probal)ly is that the latter clause of thesection qualifies the first. Another construction might be tliat assignments of projierty not specifi- cally descrii)ed, although not void as against the grantor. operate oidy :is a licence to seize and have no elTect by grant. (o) BurmuKhsr. Williiims, L. .J. N. H'H, 127; (6) Exp. FletchiT, re llenloy, 23 W. R. 673 ; 36 L. T. ",-* ■ W r,. J. Hunk, ill ; Ch. D. 800. Sec. 4. 78 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.] The schedule. It will be observed that in the scheduled form, which by sec. 9 of the amendment Act is compulsory, the property assigned is only that which is specifically described ; and it has l)een held that an essential condition of the validity of a bill of sale is a present assignment of chattels capable of specific description ; '"' and that the only things which may be inserted in the schedule are chattels personal ; thus a bill of sale assigning chattels real with personal chattels is void.'*' Sec. 4 must therefore he read with and subject to sec. 9, and deals with a departure, not from the form, but from the proper description in the schedule. Thus, a bill of sale, in accordance witli the form, followed by a schedule purporting to specifically describe the chattels assigned, but with regard to some of them containing no sufficient specific description, would, as to such chattels, come within the saving clause of the section.'''' By sec. 6 of the amendment Act, a bill of sale shall not be void for want of specific description in the schedule of any growing crops separately assigned or charged where such growing crops were actually growing at the time when the bill of sale was executed, or any fixtures separately assigned or charged, and any plant or ti'ade machinery, when sucli fixtures, plant or trade machinery are used in, attached to, or brought upon any land, farm, factory, workshop, shojj, house, warehouse, or other place in substitution for any of the like articles specifically described in the schedule to the bill of sale. A schedule was not requisite before the amendment Act, but was frequently adopted for greater accuracy, being pre- j)ar('d in such a form as not to limit the general words of the deed. It is now compulsory in all cases within tlie amendment Act, and must be written on or annexed to the bill of sale, and a copy filed ;'"'' and if no schedule is attached to a bill of sale at the time of its execution, the security is void against an execution creditor. "' The chattels intended to be assigned must be described, not generally, but should be specified so as to be capable of identifi- ed) Thomas v. Kelly, 13 App. Cases, 500; 60 L. T. lU; 58 L. J. Q. B. 36; ;J7 W. R. 353. (4) Cochrane v. Entwistle, 25 Q. H. D. 116. (c) Kelly f. Kellond, 20 Q. B. I). 569; ,% W. R. 303. (rf) Sec. 10, sub-sec. 2 (187H). (e) Griffin v. Union Deposit Bank, 3 T. L. R. 008. THK HILLS OF SALE ACT (1878) AMENDMKNT ACT, 18H2. 79 SeC. 4. 1 1882. 1 cation; although what will Iw a aufficieiit s|)ecific description i)ui8t, it seems, dejii'iul, to some extent, on the cireiimstnnces of the case. A mere clerical error of description wliich couhl not dec»'ive, as for example, "premier plating; macliine" for •'premier platen machiiif." there hciii^ evi(h'nce that any one accpniinted with the trad*- would know what article was intended, will not atlect the suHiciency of description.'"' The requirements of tlie section are an inventory and Specific T _ . (luK(rriptiijii, Specific description of the chattels, and specifically descrihcd means de.scrihed with such j)articularity as is usual in an ordinary husiness inventory of such chattels in such a place as they are.'*' A full inventory or catalogue is recommended, for the description must, generally s|)eaking, be sufficient to distinguish the chattels assigned from other chattels of the same class. Thus, the description "household furniture and effects, implements of hushandry," has been held insufficient.'^' So description only by number and quality will not do, as applied to a trader's stock where other articles of the same kind may be on the premises ; and the schedule to a bill of sale of stock-in-trade, describing the goods as "450 oil paintings in gilt frames, ;{00 oil paintings unframed, 50 watercolours in gilt frames, 20 watercolours unframed, 20 gilt frames," was held not to be a specific des- cription of the chattels assigned.'*' And so a description of farm stock, " 21 milch cows," has been held not sufficiently specific, there being nothing to shew that the}' were the only cows on the premises.''' Hut if this had appeared, such a description would it seems have been sufficient ; thus an assigiiment of all the farming stock on a particular farm described as "all my farming stock comprising four horses, five cows " and other animals parti- cularized (mly by the number of them was upheld.''' So the description of chattels as "roan horse, 'Drummer,' brown mare and foal, three rade carts," was hold sufllicient in the absence of evidence that the grantor at the time of executing the bill of sale had other articles answering this description/-^'' (u) Siminotis r. Hujfhcs, 31 S. J. B69. (4) Wittr. Biiiincr, 20Q. B. I). 11 1 ; 36 W. R. 116; 67 L, J. Q. B. Ul ; 5H L. T. $«, (r) Ro»)crt« r. Rert», 3* S. J. ir>l. (/) HU-kley r. (ireenwoiMl, J6 y. H. U. 277 ; 38 W. H. 0S6 ; f.S) L. J. Q. B. *\3 ; 63 L. r. 288. D 2 Sec. 4. 80 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.] Where the objection is taken that there is not a specific description of the goods, the objector in order to succeed must either shew that from the nature of the description the goods cannot be identified, or that the}' are incapable of identification.'"' Nor is the same accuracy and precision of descrijjtion required of goods in a particular room of a private house as of goods in the possession of a trader, and in the former case " twelve oil paintings in gilt frames " described as being in a particular room was held a sufficient descrip- tion. <*' In such cases specifically described does not mean in- dividually described, for a description by numljer is not necessarily insufficient ; for example, " all silver coffee pots now in my house " would seem sufiicient without describing each coffee pot by itself ; and the following was held a specific description in a schedule of the things assigned : — " The whole of the chattels and things at present at W. Vicarage, and consisting, inter alia, of . . . Study : 1,800 vols, of books as per catalogue. Miscellaneous : silver-plated goods, china tea service, coffee service, knives, forks, dinner sets, table linen, bed linen, beds, bedding, ornaments, crockery," the articles not being otherwise enumerated, and the catalogue not beiug annexed.''' The schedule. The decisions under the old law would appear to some extent still applicable. Although a list of the chattels either in the deed or in the schedule was not necessary, such a description as would enable them to be identified being sufficient, where a deed contained a covenant to make an in- ventory, but none was ever made, its absence was, with other circumstances, left to the jury as evidence of fraud.'''*^ Where, however, the original schedule was destroyed, filing a copy was held sufficient.''* Under the repealed Acts it was held that the schedule con- trolled the general words of the deed ; thus, the words "goods and chattels" or "effects" which, alone, would include the grantor's whole personal estate, might be cut down and qualified by the particular description in the schedule; (a) Hickley v. Greenwood, 25 Q. B. D. 277 ; 38 W. R. G86 ; 59 L. J. Q. B. 413 ; £3 L. T. 288. (6) Cooper v. Kendrick, 34 S. J. 96. (c) Davidson v. Carlton Bank [1893J, 1 Q. B. 82; 41 W. R. 132; 62 L. J. Q. B. Ill; 67 L. T. 6*1. (d) Dewey v. Bayntun, 6 East, 257. (e) Green v. Attenborough, 3 H. & C. 468 ; 34 L. J. Ex. 88 : 13 W. R. 185; 11 L. T. 513. Til K rULLS OF SALK ACT (1878) AMKNDMHNT ACT, 1882. SI SeC. 4. fl882.1 niitl a l)ill uf sail", wliicli iiftcr tissigning specific good, then or thtTfut'ttT in or ahont preniisos occnpicr tlu.' personal estate whatsoever, of or to which the grantor then was or thereafter should become entitled, was held not to pass the term which the grantor liad in the premises.'*' In like manner, a mortgage of a business of dining rooms and restaurant, together with the trade fixtures, fittings, and otlier things used for carrying on the same, was held not to |)ass loose articles, such ivs cooking utensils and furniture used lor tlie purposes of the restaurant.'*' So where a bill of sale purported to assign all the household goods and furniture of every kind and description whatsoever in a house, more ])articularly mentioned and set forth in an inventory or schedule of even date, and given to the mortgagee upon the execution thereof, but the inventory did not specify all the goods and furniture in the house, it was held to operate only as an assignment of the goods and furniture specified in the inventory."' Neither could a schedule enlarge the deed where the words The Bche 111. TJ2 ; iJ W. R. 3S2 ; 31 L. T. «0I. (») MolTillo V. StrinKPr. 12 Q. B. D. 132; 53 L. J. Q. B. 176; 32 W. R. 3«*. (/) Davi(Uon r. Carlton Bank [IMW], 1 Q. B. 82. Sec. 4. S2 THE BILLS OF SALE ACT (1878) AMENDMENT ACT. 1882- [1883.11 If there was an adequate and sufficient description of what was meant to pass, a sul>sequent erroneous addition would not vitiate it. and where a bill of sale assigned all the goods, &c., in certain jireniises more particularly described in the schedule, it was held that the large words in the body of the deed were not limited by the schedule, which only described a part of the goods, the schedule being merely by way of further description i'"^ and this rule was extended so as to include goods bought and inserted in the schedule before, but not upon the premises until after the execution of a bill of sale which expressed to assign all the furniture in a house, and comprised in a schedule annexed.'" TVTiere, how- ever, the defendant bound himself under a penalty to deliver to the plaintiff the whole of his mechanical pieces as per schedule annexed, it wa^ held that the schedule formed part of the deed, without which it would be insensible ;*'" but upon an assignment of all and every the household goods, &c., the particulars whereof were stated to be more fully set forth in an inventory signed by the grantor, and annexed thereto, although no inventory existed, it was nevertheless held that the assignment was effectual, it apj^earing that the particulars of the chattels comprised in the deed could be ascertained.'*' The schedule, jf chattels were omitted from the schedule by mistake, the Court might. ]ierhaps. allow it to be rectified, and extend the time for i-egistr:ition under sec. 14 of the principal Act ; or for greater caution, a new bill of sale might be given of the chattels omitted. The Stamp Act. 1870. repealed by the Stamp Act, 1891, imposed a duty on every schedule or inventory not indorsed upon or annexed to the bill of sale,'' but if a bill of sale referring to a schedule of things sold is complete and in- telligible without it. it might have been read, though the schedule, being unstamped, was inadmissible ; thus, when there was tendered in evidence a bill of sale and schedule, the former assigning all the goods. &c.. in and about certain premises where the grantor resided, the chief articles whereof were stated to be more particularly described and enumerated in a certain schedule annexed, but the schedule was not annexed (a) Baker r. Richardson, 6 W. R. 663. (b) Sutum r. Bath, 1 F. i F. 152. {«■) Weekii r. Maillaniet. 14 East, 5«S. (rf) England r. Downs, 2 Beav. 522 ; 9 L. J. Ch. 313 : 4 Jur, 526. (*) See Note to sec. 18 ri87!*\ TFIK BII-LS OF H.A I,K ACT (1878) AMKNDMKNT ACT, 1HH2 Ki gecB. 4, 5. [1882.] to the det'd, iinil was iiiadmiHsible for want of a Htanifi, it wa hfid that till* liill of Hale wax adiiii.>'Hiljli- in <;vid<-ncc wittioiit tin- H»* void, »,*xc«.Mjt aw iij'ain.st tlu' I'lantor, "'t^r-.- .,,iired in respect of any personal chattels specitieally (lescriljed in the schedule thereto, of which the jjrantor was not the true owner at the time of the execution of the bill of sale. The efT ct of thin and the pret-edinj^ section will be to avoid, except as against the grantor, a«Hignment.- of property not HpeciKcjilly described in the nchedule, or of which, although so specifically described, the grantor was not true owner at the time of executing the bill of .sale ; subject to the qiiaiitication of .sec. 6 of the amendment Act, by which a bill of sale is not void in respect of any growing crops separately assigned or charged where such crops were a4-tually growing at the time when the bill of sale was i-xecutcd. and any fixtures separately assigned or charged, and any plant or tnide ma«-hinerv, wliere such fixtures, plant, or trjide niachirn-ry are u.sed in, attached to, or brought upon any land, farm, factory, workshop, shop, house, warehouse, or other pla<-e, in substitution for any of the like fixtures, plant, or trade mtichinery, specifically describerl in the schedule to the bill of sale, although such crops, fixtures, plant, or trade machinery did not lielong to the jrrantor at the time of the execution of the bill of sale; and although .-sUch substituted plant, fixtures, or ma<-hinery are not specifically described in the schedule. It will be observerl that the section does not protect adflitions tn the property specifically described ; and it has been held that sec. 5, like sec. 4, must be read subject tf) sec. 9. It does not, therefore, protect even as against the grantor, a l)ill of sale not in accordance with the form, though when the bill of sale i.s in accordance with the form, f^lt<)^{>i specifically descrilx-d in the schedule, of which th«' grantor was not the true owner at the time of the execution of the deed would seem to be within the saving clause of the section.'" (.«) Dyer r. Green. I Exch. 71 ; l« I.. J. Kx. i». (4) Duck c. Unulilyll. l.J Price, 46.5; M"(nel. 217. {r\ Kelly r. Kellond, 20 Q. B. D. 5<». , Sec. 5. 84, THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.] Though this section, as well as sec. 4, appears to be aimed at bills of sale covering a floating stock-in-trade, the effect of section 6 is not limited to assignments of after-acquired property, and subject to the exceptions in sec. 6, avoids a bill of sale in every case as regards chattels of which the grantor was not the true owner at the time of executing the bill of sale."" When grantor The words true owner are used in their natural and not in is true owner. i.-ii ■ ^ j xi j.- i- j. an artincial sense, and the section applies to every case m which a bill of sale, but for the section, would have had effect on property, although the grantor was not the true owner at the time of its execution ; as, for instance, when, the grantor purports to convey property which is not then his own, but which he acquires subsequently, the conveyance operating by estoppel ; or where having parted with all his interest at common \av,\ he might, nevertheless, under the principal Act create an interest in a third person. Thus, a bill of sale, given in 1888, to secure money lent in good faith to the grantor, was held void under the section ; the grantor having in 188.5 parted with the i^roperty by unregistered deed of gift of which the bill of sale holder had no notice.'"' But if the prior bill of sale is not absolute the case is different, and a grantor of chattels who has already given a bill of sale over them to secure the payment of money, is still the true owner within this section, in respect of his equity of redemption, and may give a subsequent valid bill of sale.'''* And it has been decided that a person having a l^eneficial in- terest in chattels, is to that extent the true owner, and may bind it l)y bill of sale ; so a grantor was held the true owner, to the extent of his interest, of chattels settled for the joint use of himself and his wife during their lives with a right of survivorship.''' And it seems a man does not cease to be the true owner of chattels because they may be subject to some lien or equitable right ; thus where one partner, with his co-partner's consent, gave a bill of sale over the firm's property to secure a loan for partnership purposes, it was held that the grantor to the extent of his interest in the goods assigned was the true owner, and that the bill of sale (a) Tuck V. Southern Counties Deposit Bank, 42 C. D. 471 ; 58 L. J. Ch. 699 ; 61 L. T. 348 ; 37 W. R. 769. (i) ThomaB v. Searles [1891], 2 Q.B. D. 408 ; 65 L. T. 39 ; 60 L.IJ. Q. B. 722: 39 W. R. 692. (c) Exp. Pratt re Field, 7 Mor. 132 ; 63 L. T. 289. THK HILLS OF SALK ACT (1N7H) AMKNDMKXT ACT, l^s-'. M5 SeC. 6. [1882.1 holder was entitled to half proceeds of the ^?oods.'"' AkiiIii. wliere a person had inortRajfed a jjnhlir-honse, includin^j trade fixtures, and afterwards gave a bill of sale ni tlie trade fixtnrcs. it was held that the ^^rantce having heconrn- possess(>d of the equity of redemption in the fixtures by virtue of the hill of sale, was entitled to them as aj^ainst an execution creditor.'*' So the expression " trut- owner " includes one who is the legal owner of goods, thouj^h ancither person is equitably or beneficially entitled; thus where the goods of an execution debtor were by his direction and with his nmney j)urcliiised by his wife, who gave a bill of sale of them to a ])erson taking in good faith, she was held to be the true owner within the meaning of the .section, and the bill of sale was supported against the trustee in the husband's bankruptcy."'' As a bill of .sale to which the amendment Act applies is wholly void if registration is not duly renewed, an objection failed, taken to the titleof claimants under a Itill of sale given in 1889, that the grantor had given in 1884 a bill of sale over the same goods, registration of which had not been renewed, and it was held the earlier bill of sale having become! void, even as between the parties, before the second deed was given, that the grantor was then the true owner of the goods."" The law relating to assignments of after-acquired personal Aft cover articles of the san)e kind, bought in place of those comprised in the bill of .sale, but disposed of by the grantor ;"■' though a covenant to repliu-e ha.s heen upheld.'"' As questions concerning assignments of after-acquired projierty may, however, still arise as between grantor and grantee, and under bills of sale registen-d before the eoinmeiicement of the amendment Act, tin; rules affecting sucli assignments must still be noticed. (o) £xfj. Uaniftt, r^-Tiimplin, 7 Mor. 70; .18 W. R. 36i : 62 L. T. 264. (4) Usher r- MRrtin, L'4 Q. H. D. 272 ; r,9 I,. .1. g. B. 11 ; 01 L. T. 778. (e) Krp. WilliaiiiH, re Siirl [1WU2J. 2 Q. U. CHI ; U Mor. 263 ; 67 L. T. 507. {d) Fenton r. Blythe, 25 Q. B. D. 417 ; 63 I,. T. W>3 ; 39 W. R. 70 ; 50 L. J. Q. B. 688. («) Thomiui r. Kcll.V, 13 App. Coses. 5e and enjoyment until default, or the expiration of one day after notice in writing requiring posses- sion ; and the deed contained a power of entry and sale; and the lessee ga.ve and granted to the grantee, his executors, &c., or his or their agent>. license at all times during the con- tinuance of the security to enter on the premises, and there remain, and seize and hold possession of the property then on the premises as if the same formed part of the chattels thcreby assigned. Lord Westbury decided that the bill tjf sale operated only as an assignment of the property on the premises at the tinie of its execution, and that although a contract to assign may. in Kquity. operate as an assignment 3'et, in order to do so. it must purport to confer an interest in the future chattels, immediately, l»y its own force, without the necessity for any furthei- act of the assignee upon the future chattels coming into existence ; and therefore an assignment of existing chattels, coupled with words amounting to a mere licence to seize after-acquired property, will not operate as an assignment of the latter.'*' Therefore there must lie a clear assignment of chattels to be pr't'erty'""'^'' thereafter acquired, and no intention to include them can be implied from an assignment of chattels in a house, with a powi'r to enter and seize all the goods upon the premises, for such words do not clearly apply to future property.'" Formerly it was held that for the contract to operate as an assignment, the chattels must be so specifically described as to be identified;"' and the degree of specific description required was discussed in cases which (k) not now seem to call for particular reference." It was at length decided that if part of the property could be identified and part could not, the Court would enforce the contract against the property capable of ascertainment, ('i) 33L. J. Ch. 83; li W. R. \Vi; H L. T. til ; I De G. J. 4 S. 1. (6) See also CoUyer r. 1sbuc8. 19 Ch. U. Hi ; M W. R. 70; 61 L. J. Ch. U ; 45 L. T. M7. (r) TapfleUl r. Hillmiili, « M. Jt G. 245 ; VI L. J. C. P. 311 ; 6 Scott. N. R. 9«7; 7 Jur. 771. (o5; 13 1,. T. tWi; 1.1 W. K. sil7 ; 11 .lur. N. S. M7; 31L. J.Ex. lU. {e) Lnzanii* r. Aii.lni L. J. C. P. 847; ClemcntK r. MiUthcws, 11 y. H. D. !*W ; Petoli r. Tutin, 1.1 .M. i W. IKi; 15 L. .1. Kx. 280 ; Lt-atlmiu t.. Amor, 2»i W. K. 7:nt ; 17 L. J. y. B. 6»1 ; 3S L. T. 7»5. Sec. 6. 88 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.] and that it was sufficient if the property could be identified as being referred to by the contract at the time when the contract was sought to be enforced.-"' Eventually, the question came before the House of Lords, and by their decision distinctions formerly drawn seem abolished. An assignment of specific after-acquired property is now held to be effectual whether the property is capable of ascertainment or not at the time the contract was made, if capable of identification when the subject-matter of the con- tract has come into existence, and it is sought to enforce the security. So there may be an assignment of specific future property falling within general descriptive words, nor is there any rule that a contract is too vague to be enforced in the sense of embracing much within its terms. Beldingu. Read, and other cases, deciding that the property must be so described as to be capable of identification at the time the contract was made are thus overruled.'" But there may be an assignment so indefinite and uncertain, and in that sense so vague in its terms, that the Courts will not give effect to it because of the impossibility of ascertaining to what it is applicable;'*' and it remains yet to be decided whether an instrument whereby a person charges all present and future personalty, which was formerly held ineffectual,''' would now be enforced in equity.'*' property '""^'^ There may be other objections to the title of a claimant to after-acquired property ; as for instance where the grantor, a trader, to secure a loan, assigned his premises, together with the goodwill and all the goods, Avares, merchandise, stock-in- trade, fixtures, furniture, articles, effects and things belonging to him in respect of his business. The bill of sale declared that after-acquired property of the same description should be included in the security, providing that the articles assigned should remain in the grantor's possession until the mortgagee should enter, and secured to the moi'tgagee a share of the profits of the Ijusiness in lieu of interest. The grantor sold some of the goods on credit, and the mortgagee took possession, giving notice to the purchasers to pay him the price, but on the grantor going into liquidation it was held that book-debts were not assigned by the deed, and that the (a) Coombe v. Carter, 36 O. D. 348 ; 36 W. R. 293 ; 57 L. T. 823 ; 56 L. J. Cb. 981. (A) Tailby r. Official Receiver, 13 App. Cases, 523. (e) Tadman r. D Epineuil, 20 Ch. D. 758; 47 L. T. 157 ; 30 W. R. 702. TIIK lUl.l.SOF SALK ACT. 1H7K. HO SeC. 5. L1882.J unpaid piirchase-intUK'y was the procecdw of go(Mls allowcii to Sec. 5. be* solil by the gnintoi- tor ]\\< own jinifit, ami passed t<> hin L1878.J trustee.'"' A inortj^'apee of after-acquired property liad priorit}' ovei- exeeutiun ereditors, and was entitled to an injunction restrain- ing them from dealinj; therewith;'*' but the equitable estate of the niortgiijifee under a bill of sale of after-acquired i)ro- perty will l)e postjjoned to that of a purchaser in good faith, for value and without notice, who has taken actual possession of the thing sold, for as the grant of chattels to be ac(|uired confers only an equitable interest, if before possession is taken the legal estate and interest become vested in another person without notice of the prior equitable interest, he will become the owner Ijoth at law and in equity.''"' 5. (1878.) From hikI aftpr the coinnieiu'emeut of Appiuiaion of " \.«.v.» t v-r./ Act to trade this Act trade inachineiv shall, for the purposes c»f imwhinery. this Act, be deemed to be personal chattels, and any mode of disposition «>f trade machinery by the owner thereof, Avhich would be a bill of sale as to any other personal chattels, shall be deemed to be a bill of sale within the meaning of this Act. For the purposes of this Act — " Trade machinery " means the machinery used in or attached to any factory or workshop ; Ist. 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 nuichinery, fixed and loose ; and, (ii) Browne r. Fryer, 4«l L. T. tU7. {bi Holn.yil r. MiirMlinll, 10 H. L. (uses, 191. (r) .I.iwpli r. LyoiiH. 1.5 Q. H. D. Jso ; .<< W. R. 1« : M L. .1. Q. B. 1 ; .M L. T. 7M) ; Uullas p. RobiUHon, 15 Q. B. D. ^SS ; 33 W. R 2*1 ; 61 L. J. Q. B. 304. Sec. 5. 90 THE BILLS OF SALE ACT, 1878. [1878.] 8rd. Exclusive of the pipes for steam, gas, and "water in tlie 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. " Factory or workshop " means any premises on which any manual labour is exercised by way of trade, or for purposes of gain, in or incidental to the following purposes or any of them ; (that is to say) {a.) In or incidental to the making any article or part of an article ; or (6.) In or incidental to the altering, repair- ing, ornamenting, finishing, of any article ; or (c.) In or incidental to the adapting for sale any article. Trade By sec. 6 of the amendment Act, a bill of sale of any trade machinery, machinery used in, attached to, or brought upon any land, farm, factory, workshop, shop, house, warehouse or other place, in substitution for anj' of the like trade machinery specifically described in the schedule, shall not be void, although such substituted trade machinery is not so specifi- cally described, and was not the property of the grantor at the time of the execution of the bill of sale. It would seem that trade machinery, although to be deemed personal chattels for the purposes of the Acts, does not necessarily become so for all purposes.*"* The articles excluded from this definition of trade ma- chinery are not personal chattels within the Acts for any pur- pose whatever ; even where they are not affixed to the land with which they are assigned, but to other land not belonging to the grantor.'" A deed therefore which is void as a bill of (rt) Meux V. Jacobs, L. R. 7 H. L. 481. ib) Topham v. Greenside, 37 Ch. D. 281 ; 36 W. R. 4&4 ; 57 L. J. Cb. 583 ; Ss L. T. 274. TUK MILLS OF SALK ACT, 1H78. «.il SeC. 6. i 1878.1 sulc may still (i|niaU' us ii valid security ovcraiLich^s cxceptc-d frotn the detiiiitiou of personal chattt'ls.'"' Tliero is. iiowever, mucii (lifHculty in deciding wliut tho Legislature intended to include or exclude, and it remains for judicial decisions to interpret the words of the section. Trade machinery is not within sec. 7 of the princij)al Act,'" nor, it would seem, if affixed to the freehold, is it within the operation of the n-puted ownership clause of the Bankruptcy Act.'*"' Trade machinery, if affixed to the land, still i)asses without 'fruile express mention hy a mortd in a schedule, the Court inferring tluit it was only intended to pass as part of the mortgaged build- ings. '•" So an erpiitable deposit of deeds of leasehold premises will give a right to fixed trade machinery, even though accompanied by an agreement to execute a legal mortgage.'" iiut as sec. 7 of the princi]>al Act does not protect trade machinery, if the mortgagee ac(juires an interest in the trade machinery distinct from the land, or has power to sever and sell the trade machinery separately, the Acts will apply. Therefore if a mortgagee of land desires to have the power of selling trade machinery separ- ately he must take a bill of sale.'" An agreement authorizing possession of certain premises, and of everytiiing which should have been l):iill . erected, or (o) JSx;.. Byrne, rr Bunlett, .•O Q. H. I). .UO. (4) BaU-hoUli>r r. Vales, a?* Ch. I). 112; o7L. J. Ch. 60" ; 3(5 W. K. ..it) ; ..ii L. T.47. (<•) Wliilinore r. Kini).-*-)!!. 20 h. J. Cli .301 ; 3 Jur. N. S. 2.J0 ; 2.t Hiav. 313 ; fxp. WilHoii, rr MlilUrwnrtll. I I). A < ". I U. (d) Brooke r. Br.H.ke [IMIU , 2 Cli. t*»>: 71 I-.T. 311M. (e) Etp. LuBly, Mc.r. 18 ; 37 W. U. 301 ; (10 L. T. 100. Sec. 5. 92 THE BILLS OF SALE ACTS, 1878 AND 1882. [1878.1 Sec. 6. ])laced thereon which would not require registration within [1882.] the meaning of the Bills of Sale Acts, was held not to cover trade machinery as defined by the section.*"' An unpaid vendor's lien extends to trade machinery fixed to the freehold, and as the lien is given by law there is nothing to register, and the Acts do not apply.'*' Under the Bills of Sale Act, 1854, trade machinery was subject to the same rule as ordinary fixtures, and passed with the land ; •'"' thus where a millowner deposited title deeds by way of mortgage, and then annexed trade machinery to the mortgaged premises by bolts and screws, afterwards giving a bill of sale of the machinery to an assignee who had notice of the mortgage, the machinery was held to pass to the mortgagees as against the bill of sale holder. ''" It has also been held that an assignment of trade machinery would pass without special mention such things as were an essential part of the machine, although moveable and actually removed for a particular purpose — as a millstone removed for repair ; and that if the machine was a fixture, the moveable part of it must also be so held,'*' thus belts for driving fixed machines, which could not be taken off without cutting, or unfixing the machines, were held part of them ; '''' Ijut chattels which had never been fitted to the machine, though made to be used with it, would not pass.'"' Another statutory definition of factory or workshop is given in the Factory and Workshop Act, 1878 (41 Vic. c. 16, s. 93). Exceptional to g, (1882.) Notliiiio: Contained in the foresroiner certain things. . . » » sections of this Act shall render a bill of sale void in respect of any of the following things ; (that is to say), (u) Ite London & Lancashire Paper Mills Co., 58 L. T. 798 ; 57 L. ,T. f 'h. 766- (6) Re Vulcan Iron Works, W. N., 1888, 37. (c) Climie v. Wood, L. R. 4 Exch. 328 ; 37 L. J. Ex. 158 ; 18 L. T. 609. {d) LonKbottom v. Berry, L. R. 5 Q. B. 123 ; 10 B. & S. 852 ; 39 L. J. Q. B. 37 ; 22 L. T. 385. (e) Mather v. Eraser, 2 K. & J. 559 ; Cort v. Sagar, 3 H. & N. 370 ; 27 L. J. Ex. 378. (f) Sheffield & S. Yorks Society v. Harrison, 33 W. R. 144; 51 L. ,1. Q. B. 15 ; 15 Q. B.D. .3.58. ig) Exp. Astlmry, re Richards, L. R. 4Ch.630; 38 L. J. Bank. 9; 17 W. R. 997; 20 L. T. 997. TIIK IMLLS OF SALK ACT (187H) AMKNDMKNT ACT. IHH2. W ggc. 6. [1882.] (1.) Any ^'ntwin^ c-rups separatt'ly as.si^^iicd or c'liar«^t'd where such crops were actually *jrowinjj at tlie time when the bill of sale was executed. (2.) Any fixtures separately assigned <>r charged, and any i)lant, or trade ma- chinery where such fixtures, plant, or trade machinery are used in, iittachcd to, or brou<^ht upon any land, farm, factory, workshop, shop, house, warehouse, or other place in substitution for any of the like fixtures, plant, or trade machinery specifically described in the schedule to such bill of sale. It lias been decided tViat this section, like ss. 4, 5, must be read subject to 8ec. 9 of the amendment Act, .'uul does not protect against the grantor a bill of sale, even of the excepted chattels, unless made in accordance with the form in the schedule to the Act.'* A l)ill of sale of the chattels mentioned seems to Ije within Sntistituted the saving of the section although they are not specitically described in the schedule, and were not the property of the grantor at the time of the execution of the bill of sale; but sub-sec. 2 does not protect any additions to the property specifically described. It has been said that if the schedule to a bill of sale, in accordance with the form, specifically de- scribed the chattels, and added words covering substituted goods, the form of the deed would be in accordance with the statute, though the schedule would contemplate substitution.'"' Uefore the section, a mortgage of a mill with trade machinery had been held to include machinery affixed in substitution for that of a like description on the premises at the lime of the mortgage, but destroyed by fire.'*' Growing crops and fixtures are personal chattels within the Hills of Sale Acts when separately a.ssigned or charged but fixtures (except trade machinery) are not, when assigned with an interest in any land or Ijuilding to which they are (a) TUomaa c. Kelly, 13 App. CasoH, 600. A) Irish C. 8. Buildiinf Sociclv », Mahon.T, 10 Ir. ('. I,. R. .3fi3. Sec. 6. 94 THE BILLS OF SALE ACTS, 1878 AND 1882. [1882.1 Sec. 6. affixed, nor are growing crops when assigned with any interest [1878.^ in the land on which they grow/"' and no fixtures or growing crops shall be deemed separately assigned or charged merely because thoy are assigned by separate words, or that a power of severance is given without otherwise taking possession of the land or building to which they are affixed or on which they grow. *' Growing crops, although assigned with other goods, are deemed separately assigned within the section. ' Trade machineiy, as defined by sec. b of the principal Act, is to be deemed personal chattels. Plant in its ordinary sense is said to include the tools, apparatus, &c., permanently used in cari'ving on any trade or mechanical business. "^ Certain instru- 6. (1878-) Everv attornment, instrument, or ments sriving . . . , powers of agreement, not bemcr a nunmcj lease, wnereby a distress to be ® . ° . ° ' -^ subject to this power 01 distress is criven or acrreed to be criven bv Act ■"■ o o o . any person to any other person by way of security for any present, future, or contingent debt or advance, and whereby any rent is reserved or made payable as a mode of providing for the payment of interest on such debt or advance, or otherwise for the purpose of such security only, shall be deemed to be a bill of sale, "vvithin the meaning of this Act, of any personal chattels which may be seized or taken under such power of distress/^' Provided, that nothing in this section shall ex- tend to any mortgage of any estate or interest in any land, tenement, or hereditament which the mort- gagee, being in possession, shall have demised to the mortgagor as his tenant at a fair and reasonable (2) Page 98. rent.'2> < 1> The effect of sec. 4 of the amendment Act will be to add a fiu-ther difficulty to the use of the attornment clause in mort- gages, for the object of such clause has been to enable the mortgagee to seize property not assigned by his security ; and (a) Sec. 4, clause 2 (1878). (6) Sec. 7 (1878). (c) Roberts r. Roberts, 13 Q. B. D. 794. (d) See )^T Lindley, L..T., Yarmoutb r. France, 19 Q. B. D. 6.58. THE RILLS OF SALK ACT, 1878. 9r, See. 6. 1878 SCO. 6 extends to a distress o\\ tin- ^oods of stninf^crs. and not only to the property of the <^nintor.'°' The docuTUfsnts mentioned in the sectioti are t.o be deemed hills of sale, l)iit are not l)ills of sah' within sec. !• of the amendment Act, and need not lie in the scihednled form, thouji^h they are i;o be treated as bills of Hale for the purposes of registration '"' It will be oltserved, moreover, that a document within the section is deemed a bill of sale only so far as regards any personal chattel.s whicli may l)e seized or taken undi-r a power of distress, Jind the section does not avoid the document itself for all purpo.ses.'*' Where no personal chattels are seized or taken, the section does not sipply, or affect the operation of an attornment clause so far as it creates the relation of land- lord and tenant as between mortgagor and mortgagee, for the clause consists of two severable things; .so far as it creates the relation of landlord and temint it is not within the Acts, but so far as it gives a power of di.stress as incident to that relation it is a bill of sale and subject to the section. i*^' And the validity of an agreement entered into between a landlord and tenant, so far as relates to the tenancy, is not affected because containing a clause giving a power of distress, void under the Acts.' Indeed, an attornment clause in a mortgage of realty, even if itself void, does not necessarily avoid the whole deed ;''' and though probably insufficient to <'oiifer any securit}', it appears to give a mortgagee the right, as landlord, to proceed to recover ])ossession under R. S. C. 188a, Order III. R. (i. Order XIV. R. 1.'/' The section applies to attornments by way of security for Attonuncnts. money, whether the attornment cdause is followed by an express power of disti'ess, or the right to distrain is claimed as incident to the demise;'"' though it was formerly questioned whether an attornment (clause not giving auy exj)re8s power of distress was within the section at all : and the section was held not to ap])ly to an attornment clause (a) Green c. MarHh [1S92], 2 Q. H. 33(). (6) Et/,. Kennedv, rt- WiiliK, 21 Q. B. D. 384; 5 Mor. 189; .% W. R. 793; 57 L. J. Q. H. ftU; ."iOL. T. 7». (<•) Mumford r. lolliir, 2r, Q. H. D. 279 ; .W W. R. 716 ; 69 L. J. Q. H. CiS. (d) Stevens p. MarHton, .JO W. R. 129. If) Kz-O'Dwyer. 19 L. R. Ir. 19. (/) Hall r. Comfort, 18 Q. B. D. 1 1 : M.'. W. 1{. is ; 6.1 L. T. 560 ; .16 L. J. Q. H. IN.5; .Mumford v. (Vllier, 2,5 Q. B. I). 279. (il) Exp. Kennedy, rr Willis, 21 (). H. 0.384. E 2 Sec. 6. 9fi • THE BILLS OF SALE ACT, 1878. [1878.] whereby a mortgagee was empowered to determiine the term and re-enter, although a right of distress attached to the rehitionship of landlord and tenant thereby created.'"' Prior to the section an attornment clause in a mortgage deed created all the incidents and remedies of an ordinary tenancy, and the mortgagee might distrain goods on the mortgaged premises, whether those of the mortgagor or a stranger ; thus, where after a mortgage with an attorn- ment clause the mortgagor let to a tenant who assigned certain of his goods on the premises, by a bill of sale, on the original mortgagee seizing the goods as distress for rent in arrear under the attornment clause, it was held that the distress was justified, and that the bill of sale holder could not recover damages for the seizure.'*' Attornments. But the section would now avoid the distress ; thus where, four years after a mortgage containing an attornment clause, at a fair rent, the mortgagor, being in arrear with his interest signed a document undertaking to hold the premises as tenant to the mortgagees at a rent which was not found to be other than fair and reasonable, but the document was colourable only in so far as it purported to alter existing arrangements, there being no change of possession or inten- tion to make a real demise, the rent being reserved only to further secure principal and interest ; the mortgagees having seized goods of third parties as a distress, it was held on their bringing trover that both documents were to be deemed bills of sale, and were void for want of registration. '<"' A mortgage contained an attornment clause whereby the mortgagor attorned tenant to the mortgagee from year to year at a yearly rent payable quarterly, the first payment to be made on the first of the month next after any interest should become in arrear, all money recovered by the attornment clause to be accepted in the first place in or towards satisfaction of interest in arrear. Default having been made, the mortgagee distrained, and the mortgagor sub- sequently became bankrupt. It was held that the distress was invalid and that the trustee was entitled to the pro- ceeds.'*'' So it has been held that the Acts apply to an («) Hall V. Comfort, 18 Q. B. D. 11. (4) Kearsley r. Phillips, 31 W. R. 9(X) ; 52 L. J. Q. B. 581 ; 11 Q. B. D. 621 ; i9 L. T. 4;i5. (c) Green v. Marsh (1892), 2 Q. B. 330. (rf) Exp. Kennedy, re Willis, 21 Q. B. D. 384. THE MILLS OF 8ALK ACT, 187H. 07 See. 6. [1878.] agreement for letting a puI)lic-house, l)y which tlii» Ijindlonls ())rowprs) won- I'mpuwcrcd to cntor on th«' prcmisfH iiiul di»tniin for the anntunt iluc to tlicni for jyooils supplied to the tenant.'" Formerly ii semrity over chattfls l)y assignment or AuonimiutB. demise of a debtor's interest in premises, with a proviso that the |)remises and chattels should be lield by the del)tor as tenant from year to year, at a rent which, together with the tenancy, was to cease on pavinent of all moneys recoverable under the .security, a j)ower of entry, without previous demand, being also reserved on default in payment, was held not frau- dulent under the Statute of Elizabeth, or the Bankruptey or Bills of ,*>ale .\cts ; nor was a mortgage, by which the mort- gagor attorned tenant to the mortgagee at a fixed rent with a power of flistress, a licence to seize within the repealed Act ;'*' and it was decided that a power of distress in an agreement for the hire of chattels was not a fraud on the bankruptcy laws.'*"' It was al.so,on more than one occasion, decided that an attorn- ment i)y the mortgagor brought the mortgagee, as landlord, within the protection of sec. IM of the Bankruptcy Act. ISSO.""" The test in such cases was afterwai'ds decided to be whether the intention was to eieate a real tenancy, or whethei- the tran.saction was a mere device for giving an additional security to the mortgagee in the event of the mortgagor's bankruptcy. I f the attornment clause constituted a real relation of landlord and temint between the parties, a distress levied for the rent fixed by the clause was good as against the trustee in the bankruptcy of the mortgagor. An attornment clause in a second mortgage might be valid, notwithstanding there was a like {-lause in a |)]'ior mortgage of the same premises, and if the amount of the rents fixed by tin- two clauses was a fair i*ent of the pi-operty. so that there was no fraud on the bankruptcy laws, valid distraints might be levied by both mortgagees after the commencement of the liank- rnptcy.''' .\nd before the amendment Act a mortgage con- taining an attornment clause was held to pass tenant's fixtures (u) Pulbrook r. Ashby, 3.5 W. R. 779. (6) Morton c. WofxU. :is L. J. Q. B. si ; L. R. i Q. H. L'OT ; 17 W. R. (r) Leman r. Yorks Waj^on Co., 50 L. J. fh. iOS. (d) Se<'tion 42 i» the oorreHixmdinK section of the Bauknipt<'y Act, 1888. (e) Exp. Punuett, r< Kitchin, 16 Ch. D. 226 ; 29 W. R. 129 ; 50 L. J. Cb. 212', 44 T,. T. 22ti. Sec. 6. 98 THE BILLS OF SALE ACT, 1878. [1878.] placed oil the premises after the date of the mortgage, for the mortgagee does not cease to be mortgagee because he is made a landlord.'"' Attornments. A mortgage with an attornment clause and an agreement authorizing the mortgagee at any time within three months from the date of the mortgage, without any previous notice, to enter on the premises and determine the tenancy, creates a tenancy from year to year, and not at will ; therefore, apart from the section, the mortgagee might have distrained for the i-ent reserved, although in the meantime the mortgagor became bankrupt;'*' and it was not an objection that the rent was of a fluctuating amount.''^' (2) It is important to observe that the benefit of the pro- viso is limited to cases where the mortgagee, " being in. possession," leases to the mortgagor ; and this has been held to apply only to cases when the mortgagee has taken posses- sion and subsequently demises to the mortgagor, and not where no actual possession has Ijeen taken and the demise is created by the mortgage deed itself.'"" Neither the mortgage itself, nor a subsequent document modifying the arrange- ment under the mortgage for the purpose of further securing money, makes the mortgagee a inortgagee in possession within the section ; for what was intended to be protected is a lease in good faith by a mortgagee in possession to a mortgagor, and not a mere lease to secure money. '^' It has been held that the possession of a mortgagor, who withholds possession from the mortgagee after the latter has demanded it, is a wrongful possession.'-''' Where the mortgage contains an attornment clause, a mortgagee in possession is liable for wilful default in receipt of the rent.'''' The words fair and reasonable rent seem to be introduced to jirevent the reservation of a rent to the mortgagee equal to the amount of the loan ; and in determining what is a fair and reasonable rent, the test will be, is the rent excessive («) Exp. Punnett, re Kitchin, 16 C. D. 226. (h) Exp. Queen's Benefit Building Society, re Tlirelfall, 16 Ch. D. 274 ; 4ri L. T. 74 ; 50 L. J. Ch. 3la ; 29 W. R. 128. (c) Exp. Voisey, re Knight, 21 Ch. D. Ul ; 52 L. J. Ch. 121 ; 47 L. T. 362 ; 31 W. R. 19. {(/) Exp. Kennedy, re Willis, 21 Q. B. D. 384. (e) Green v. Marsh [1892], 2 Q.B. 330. (V) Bagnall i'. Villar, 12 Ch. D. 812. ■ {g) Re Stockton Iron Works Co., 40 L. T. 29 ; 10 Ch. D. 335 ; 27 W. R. 433; 48 L J. Ch. 417. rilK HILLS OF SALK ACT, IH7H H'.» SeC. 7. [ 1878. 1 coiisideriti^ thf iiiitiire of tlif prdpiTty, ami doe* il >ticw of itself that then' wiis lu) intention to creiite a real tenancy.'" It would seem that if the rent fi.xed hy the elause be so excessive that the Court comes to the conclusion that it was not intended to create a real rent or a real tenancy, the clause aiul any distress levied under it, even though before the com- luencenient of the l)ankruj)tcy, will be invalid as a fraiiil on the bankrujitcy laws, for the section of the Mankruptcy Act. giving a lamllord or other person to whom rent is due- from the bankrupt a right of distress, docs not protect a dis tr«'ss levied for a sham rent; thus, where a triuler executed a mortgage to secure a current account, attorning tenant to the mortgagee at a rent of £8,WU, when the yearly value of the property was £140 otdy, the Court held that the rent reserved by the attornment clause wa.s so excessive, that it could not have been intended to create a real tenancy, and that the »tt«)rinnent clause was invalid against a trustee uiuler the mortgagor's licpiidation.'*' The rent reserved, however, will enure as a security as well for the principal as the interest of the mortgage debt.'*"' 7. (1878.) N<» fixtures or Ln-owiiu' crops shall be '*'""•"*•' "^ •■' "^ f -i jrrowinK crops tU'fiued under this Act to be separately assigned or j^p,'",*,'*; charged, by reason only that they are assigned by ^I't-'n the una'' separate words, or that power is given to sever them i^^'^^l^j^J from the land or building to which they are atti.xod, '""i^'""*"*^- or from the land (.)n which they grow, witlxMit otherwise taking possession of or dealing with such land or building, or land, if by the same instrument any freehold or leasehold interest in the land or building to which such fixtures are affixed, or in the land on which such crops grow, is also conveyed or assigned to the same persons or jtersun. The sanit' rule of construction shall !>»' ajiplicd to all deeds or instruments, including fixtures or growing crops, executed before the couunencement of this (a) S* Stockton Iron Workh Co., 10 X..T. 2fl ; 10 Cb. P. 335, 26 W. R. US i is I-. J. Di. 417. (A) AVii. Jiickwin. r^ Howes, U Ch. n. 726; W I,. T. J72 ; -'0 W. K. 253; Kx;.. WilliamH r/-Tli.injp»..n, 7 CU. D. 139; 47 L. J. Bank. 26; 26 W. R. 874; 37 1-. T. 76-». ( •) Kxp. Xarrifton, r<- Bcttn, 18 Ch. D. 127 ; 30 W. H. .'irt ; 4.'> L. T. 390 ; 60 T,. J. Ch. 832. Sec. 7. 100 THE BILLS OF SALE ACT, 1878. [1878.] Act and then subsisting and in force, in all questions arising under any bankruptcy, liquidation, assign- ment for the benefit of creditors, or execution of any process of any court, which, shall tate place or be issued after the commencement of this Act. This section is retrospective only so far as it enacts that a certain rule of construction as to the meaning to be attached to the words " separately assigned or charged," shall apply to bills of sale executed before the commencement of the princi- pal Act.'"' The section restores a rule recognised in Boyd v. Shorrock,'*' but overruled by subsequent cases. A legal or (equitable mortgage of realty or leaseholds, although un- registered, carries with it trade or tenants' fixtures as a part of the land, whether on the land at the time of the mortgage or subsequently affixed. '''' A deposit of a lease, also, covered tenant's fixtures;''" and when the documents of title to leasehold premises were deposited by way of equitable <'harge with a person on whose behalf they, with fixed machinei-y, &c., upon them, had been bought, accompanied by a memorandum reciting the terms of purchase and agreeing on request to execute either a mortgage or absolute transfer of the property, it was held against the mortgagor's trustee in bankruptcy that the mortgagee was entitled to the fixtures, and that the memo- randum was not an assignment of trade machinery within the Acts. '" When fixtures On a mortgage of land by sub-demise a qualified property security. i" fixtures passes to the mortgagee without the right to remove and sell, unless given in express terms, but the mortgagor cannot remove fixtures during the continuance of the mortgage terra, though his right to do so revives when the mortgage is satisfied. '•'^' But the mortgagee does Tiot take a better title to the fixtures than the mortgagor him- self, thus the mortgage will not cover fixtures attached to (a) Exp. Moore, re ArmvtaRe, U Ch. D. 379 ; 28 W. R. 921 ; 42 L. T. 44.S • 49 L. J. Bank. 60. (*) 37 L. J. Ch. 1« ; L. R. .5 E(i. 72 ; 16 W. R. 102 ; 17 L. T. 197. (c) Meux V. Jacobs, L. R. 7 H. L. 481 ; Holland t). Hodgson, 41 L. J. C. P. 146 • L. R. 7 C. P. 328 ; 26 L. T. 709 ; 20 W. R. 990 ; Walmsley v. Milne, 7 U. B. (N, S.) 115; 29 L. J. C. P. 97 ; 6 .Tur. N. S. 125. (d) Williams v. Evans, 23 Beav. 239 ; Exp. Broadwood, 1 M. D. & D. 631. (e) Exp. Lusty, 6 Mor. 18 ; 37 W. R. 304 ; 60 L. T. 160. (/) Southport, ic. Banking Co. v. Thompson, 37 C. D. 64: 36 W. R. 118 : .58 L. T. 14.3; 57 L. .T. Ch. 114. THE HILLS OF SALK ACT, 1H78. KH SeC. 7. [1878.] the land by a tenant to the innrtj»>igor under ii lettinj; snhse- qnent to the mortage.'"' A limited compaiiy niortgag(Ml lo tlicir bankers a colliery, of whieh they were lessees, together with all fixed engines, boilers, shafting, gearing, iniichinery and other fixtures then or thereafter standing or being upon t he mortgaged premises. Afterwards they agn-ed with a firm of engine makers to erect a machine, in the nattn-e of a trade fixture, at the colliery, the purchase-money to be paid ijy instalments, and when fully jiaid the machine to become the property of the (■ompany, but until paid for to remain the property of the makers. The machine was erected, but after default in paying the instalments, the mortgagors went into liquida- tion. The ('ourt held the makers of the machine entitled as against the mortgagees, for though the mortgagi; was good between the parties, the stipulation that the machine should remain the maker's property until paid for was also valid, and the mortgage could not give the mortgagees a better title than the mortgagors had.'*' So where a tenant, who had agreed with the defendants to supply him a boiler to be paid for by instalments, and to remain their property until paid for, mortgaged his premises by underlease to the plaint ilT, the defendants afterwards supplying the boiler, which was alHxed to the mortgaged premises, it was held that the plaintiJV. though without notice of the agreement, by leaving the mort- gagor in possession, must be taken to have acquiesced in his making agreements for fixing and removing fixtures for the purposes of his business, and could not claim the boiler as against the defendants."'' As a mortgage of ])remises covers fixtures in the absence ^vhon fixture* t .... V. ...,,,, ^ . Bi-u inchide'' Fixtures. Before the commencement of the principal Act, where a stone merchant, l)y an unregistered deed, made a mort- gage in fee of land, and a stone quarry therein, together with all the fixed and moveable machinery and fixtures of every description, with power for the mortgagee to sell any part or parts of the mortgaged property either together or in parcels, it was held on the mortgagor's bankruptcy, that a steam crane and tramway upon the property in connection with the quarry, comprised in the mortgage deed, and so attached to the free- hold as not to be capable of removal without damage, although not fixtures in the ordinary sense, passed to the mortgagee under the deed ; and that inasmuch as the freehold passed by the deed, registration was not required under the Bills of Sale Acts, 1854.""' But now if a mortgagee of land wishes to have the power of selling trade machinery apart from the land he must take a bill of sale, although trade machinery, if aflBxed to the freehold, still passes without express mention, by a mortgage of the land. The power of sale given by the Conveyancing Act, 1.881, which entitles a mortgagee to sell the mortgaged premises, or any part thereof, either together or in lots, does not confer a right to sell fixed trade machinery apart from the premises so as to operate as a separate assignment.'"' Nor is any such power necessarily {a) Exp. Tweedy, ceTrethowan, 5 Ch. D. 559 ; 46 L. J. Bank. 43 ; 25 W. E. 399 : 36 L. T. 70. (4) Exp. Daslish, L. R. 8 Ch. 1072 ; 42 L. J. Bank. 102 ; 29 L. T.168 ; 21 W. R. 893 ; Exp. Barclay, re Joyce, L. R. 9 Ch. 676; 43 L. J. Bank. 137 ; 22 W. R. 608 ; 30 L. T. 479. ((•) Begbie v. Fenwick, L. R. 8 Ch. 1074 ; 19 W. R. 402 ; 24 L. T. 58 ; Hawtrey V. Buttlin, L. R. 8 Q. B. 290 ; 42 L. J. Q. B. 163 ; 21 W. R. 663; 28 L. T. 532. {d) Climpson v. Coles, 23 Q. B. D. 465 ; Waterfall v. Penistone, 6 E. & B. 876 ; 3 .Jur. N. S. 15 ; 26 L. J. Q. B. 100. (<•) Batcheldor v. Yates, 38 Ch. D. 112. (/) Exp. Moore, re Armytage, 14 Ch. D. 379. (ff) Batcheldor c. Yates, 38 Ch. D. 112. THK HILLS (»K SALK ACT. IH7S. 1(« See. 7. 1878. implied where there is oxpres.s mention of fixed trade mach- inery, if the machinery is only assij^ned as part of the land.'" But if a power of selling separately is conferred expressly or 1>3' implication, tlie instrumi'iit will, as regards fixed tnide ?naciiin«Ty,re(juire registration; and the intention of tlujiarties must !)(' collected from the whole deed. Tlius, where a mill- wright granted and assigned iiis freehold business premises l>y way of mortgage, together with all and singular the fixed and moveable jilant, machinery, and fixtures, implements and utensil.s, then or thereafter fixed to, or placed on, or used in or about the said hereditaments, the deed also containing a separate covenant l)y the mortgagor to keep the plant, mach- inery, fixtures, &c., in good repair, and insured against loss or damage l)V fire, it was held that the mortgage, being unregis- tered, was void as regards trade machinery, and the mort- gagees were restrained from selling it, either together with or apart from the mortgaged premLses."" A lessee who mortgages tenant's fixtures cannot defeat Fixture*, his grant Ijy a voluntary surrender of his lease, and the mortgagee has a right, notwithstanding the surrender, to enter and sever the fixtures.'"' Where, however, the grantor, liaving assigned growing crops, agreed with his landlord, who had distrained for rent, to surrender the tenancy and give po.ssession of the land and crops in con- sideration of the distress being withdrawn, on which the landlord withdrew, and on the surrender Iteing com- pleted took possession and cultivated the crops, it was held that although the surrender could not j)rejudicially affect the rights of the mortgagee, an action of trover was not maintainable, the legal title of the landlord being complete by the surrender ; but that the mortgagee was entitled to be put in the same position as the tenant before surrender, subject to his liabilities.'''' As an assignment of freeholds or leaseholds will pass trade and tenant's fixtures, and by the section such an assign- ment is effectual without registration, it will be prudent for u mortgagee of fixtures or growing ei-ops to ascertain whether they are aff«'cted by any dealing with the land; and to require a (h'claration b}' the grantor that no such charge exi.sts, in addition to the usual covenant against incumbrances. (i:a^or in them at the time of seizure.'*' Hut damages may be j^ivin for the wrongful .seizure ; i""' and wh«'re the deed is void the real value of tlie goods .sold, coupled with any proved specinl d:image, would .seem to be recoverable ; and wiieii the goods have been sold at a loss, or a trespass has been committed, substantial damages may be given, and the Courts have refused to .set aside a verdict for vindictive damages. "*' If damages are claimed for trespass, the action should be tried in the Queen's Bench Division, and not in Chancery.''' It has been said that a licence in the terms formerly com. mon in bills of .sale, empowering the mortgagee, if necessary, to use force and break into any dw(;lling-house or premi.ses wherever the goods may bo, would be void as a licence to commit an offence agaitist the statute, h Ric. II. c. 8."^' (2) It will l)e ol)served that the covenant or agreement in ^"jJJuro.'' respect of which default in performance will warrant a seizure must be one necessary for maintaining the security. It should also be remembered that a power of seizure upon failure or neglect to perform a covenant would seem not to apply to breach of a negative covenant.'"' Under the former Bills of Sale Acts it was held that a-< acompliam^c with the stipulations of the deed was required for the grantor's protection, he might, of course, waive them ; thus, wheie a bill of sale contained a proviso fcjr re-entry on non-payment for twent3'-four hours after demand, and tin- mortgagee (Mitered and took actual pos.session before the expiration of the notice, but the grantor raised no objection to his so doing, the seizure was held good against a trustee under the grantor's liquidation.'*' (o) .MouHon r. Milinr, H T. L. R. M?. (4) Hricrlcy c. Ken.laU. 17 Q. H. 9,17 ; 21 L. .1. Q. B. IBl. (r) MiKire r. Shelley, H App. Civ-ses. 2«.'> ; 62 L. .1. P. C. ;JJ ; U L. T. 91s. (J) Thomas r. HnrriH, 27 U. .1. Kx. 35.J. (e) WalliH r. Saycrs, W. N. IsOO, 120. (/) E07. (*) Kxy. Kcdfeni, rr Hall, l'.» W. K. li>6s. Sec. 7. 108 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. : [1882. J Payment on demand cannot now be required, \n\t if a bill of sale holder chooses to enlarge the time for payment, a default under the terms of the deed will not, it has been said, warrant a seizure ; '"' though this has been douljted, and it would seem that a mere promise to enlarge the time, Avithout consideration, will not render illegal a seizure undei' the terms of the deed, unless there has been some misrepresentation of existing facts by the grantee or his agent, on the faith of which the grantor has altered his position for the worse; thus, where a bill of sale given for a loan joayable by instalments, authorized the grantee at any time to take possession, and the grantor requested time for payment of one of the instalments, to which the grantee replied that he would wait a week, but nevertheless seized and sold on the third day after the instal- ment became due, it was held that there had been no waiver of the grantee's rights under the deed, a mere promise, with- out consideration, being insufficient to prevent him putting them in force. '*' Nor did an outstanding bill of exchange suspend the rights of a grantee.''^' Power of When the power was to seize and take possession " im- seizmv. . '^ _ ^ mediately after notice," or '' immediately upon demand," the grantor had such reasonable time for payment as in the ordi- nary course of business would suffice to fetch the money, thus, half-an-hour's notice has been held insufficient : '"" and where the Ijill of sale contained a proviso for redemption if the grantor should instantly on demand, and Avithout delay, on any pretence whatsoever pay the sum due ; and it was also provided that the demand might be made personally 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 should in fact be made ; and in the grantor's absence a demand was made on his son, who stated his inability to meet it, and the grantee immediately seized, it was held that the notice required was such as might be reasonably supposed to reach the grantor and give him an opportunity of comply- (o) Albert v. The Grosvenor Investment Co., L. B. 3 Q. B. 129 ; 37 L. J. Q. B. 34 ; 8 B. & S. 6«4 ; Longden v. Sheffield Deposit Bank, 24 S. J. 913, per Field, J. (i) Williams r. Stern, 42 L. T. 719 ; 5 Q. B. D. 409 ; 28 W. R. 901 ; 49 L. J. Q. B. 0(53. (c) Bramwell v. Eplinton, 6 B. & S. 39 ; 35 L. ,1. Q. B. 163 ; 14 W. R. 739 ; 14 L. T. 735 ; 12 Jur. N. S. 702 ; L. R. 1 Q. B. 494. id) Brightv r. Norton, 3 B. & S. 305 ; 9 Jur. N. S. 495 ; 11 W. R. 167 ; 7 L. J. N. S. 422 ; 32 L. J. Q. B. 38 ; but see Wharlton v. Kirkwood, 22 W. R 93 ; 29 L. T. 645. THE HILLS OF SALK ACT (187H) AMKND.MKNT ACT, 1H82. 1(«) SeC. 7. 1882. 1 iujf with it within a roaHoutiblc tiim-. and that the seizure was thbret'ori' not justified. '*' So wlitic di-nnind l>y a person representing^ tiiinself as the niortpijjee's aj^ent was made on the wife of t}ie inort»iirmice ('<>., re Fnim i«, IDCh. D. 40s ; le U. T.* 2.17; 27 W. K. M>^. iJ) Mavhew r. Sutllo, 4 K. k U. 347 ; 24 L. J. y. H. .'>4; I Jur N. .S, 3i 3. K Sec. 7. 110 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.] grantor's right to possession of the goods being defeasible only in default on payment, he was entitled to recover the value of his interest in them at the time of the trespass.'"' (2.) If the grantor shall become a bankrupt/^' or suffer the said goods or any of them to (21 Pajreiu. be distrained for rent, rates, or taxes ;(2) (1) By section 125, sub-sec. 7, of the Bankruptcy Act, 1869, the word " liankrupt " included a debtor whose affairs were imder liquidation, and the word " bankruptcy " included liquidation by arrangement. If, therefore, the grantor be- came a liquidating debtor, the section would have applied ; but his presenting a petition for liquidation, or compounding with his creditors, would not have had that effect. Seizure on By section 3 (16) (17) Bankruptcy Act. 1890, for the pur- amup cj. poses of administration of jjroperty, the words " Ijankruptcy," "bankrupt," and "order of adjudication," are to be interpreted as if they included respectively a composition or scheme of arrangement, a compounding or arranging debtor, and order approving the composition or scheme. It is not at all clear, however, that a composition or scheme would l)ring the grantor within the sub-section. Under the bankruptcy laws, it has been decided that a person becomes bankrupt on committing an act of bankruptcy available for and followed by adjudication; '*' but the commis- sion of an act of bankruptcy without adjudication would seem not to warrant a seizure under the section.'"' As chattels comprised in a bill of sale given after the Qpmmencement of the amendment Act, by way of security for the payment of money, are subject to the reputed ownership clause of the Bankruptcy Act, the power of seizure on the grantor becoming bankrupt affords a very inadequate protec- tion to the mortgagee, for if the chattels are in the reputed ownership of the bankrupt in his trade or business at the commencement of the bankruptcy, that is, at the time of the comniission of an act of bankruptcy to which the trustee's title relates, the mortgagee's rights may be defeated, although (a) Toms r. Wilson. 4 B. & S. 412 ; 32 L. J. Q. B. 382 ; 11 W. U. 952 : 8 L. T. N. S. 77H ; 10 Jur. N. S. 201. (b) Fiiwcett r. Feanic, 6 Q. B. 20 ; 13 L. J. Q. B. 30 ; 8 Jur. 695 ; exp. Attwater, re Turner, 5 Ch. D. 27, 30, per James, L. J. ; 25 W. R. 206 ; 35 L. T. 682 ; 46 L. J. Bank. (c) Gilroy v. Bowey, 59 L. T. 223. THE BILLS OP SALE ACT (1878) AMENDMENT ACT, 1882. 1 1 1 Sec. 7. [1882.1 he Hcist's lu-fore twljudic'Uti<«'cti()n, would exclude the reputed owuer.ship (•liiu.>. Fletcher, re Henley, 6 Ch. D. 809. (i) I/1, (c) Law of DiHtro.-iit .^tncndmcut Act, IvW, «. 4. {d) Whiirton r. Niivlor. 12 Q. B. 673; D. A L. 136; TJ .Tin. sill; 17 L.. I. Q. B. -i-K («) Uorsf.iril r. Webster. 5 Tyrr. 408; 1 C. M. A R. 006. r 2 Sec. 7. 112 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.1 The grantee may, however, remove tlic goods before dis- tress levied ; for Stat. 11 Geo. II. f. 19, Ijv which landlords are authorized to follow goods fraudulently or clandestinely removed, and penalties are imposed on persons aiding such removal, does not apply to the goods of strangers or mort- gagees.'"* Thus a creditor maj', with his debtor's consent, take possession of goods and remove them from the premises for the pui'pose of satisfying his deljt, although he knows the debtor to be in embarrassed circumstances, and apprehends a distress."'' So if the bill of sale holder, with the grantor's consent, in order to prevent a distress, removes the goods within the period of five days provided by sec. 13, the landlord has no right of action against the bill of sale holder for the loss of rent occasioned by removal, or for double value under the statute.'"' Landlord imil Where a bill of sale holder, who had i)ut a man in posses- si(m, on being informed by the landlord that rent was in arrear, and that the goods should not be i-emoved until it wiis ])aid, continued in possession V)ut made no attempt to remove the goods, but the landlord did not take i)ossession or assume dominion over them, it was held there was no evidence of a conversion by the landlord; and, per Bramwell, B., that an actual prevention of removal by force would not have amounted to a conversion.'''' It was also held that a landlord was not under an obligation to hand an}- surplus goods u oiif pcr.-^iii'.s ifiMxls iirt- liiwt'ully seized for tin- dcl)t cit' iniothcr. tlir- imviut is entitled to redeem them and to \tr rcimliursed tlic money paid, or if the >rheni»on 17 L. J. Bunk. 6 ; Do CSc.x, 688. Sec. 7. 114 THE BILLS OF SALE ACT (1878)AMENDMENT ACT, 1882. [1882.] and an order was granted restraining him from selling the goods upon the premises or continuing in possession.'"' In another case, the grantor having assigned growing crops, the landloi'd distrained for rent, and whilst in possession, without notice of the bill of sale, agreed with the grantor, his tenant, to accept a surrender of the tenancy and possession of the crops. He then withdrew the distress, on which the mort- gagee seized, but afterwards the landlord, on surrender of the tenancy, entered and took possession of the crops, and in an action Ijy the mortgagee against the landlord it was held that the title of the latter was complete on the surrender, and that although the mortgagee was entitled to be put in the same position as the tenant before suri-ender, his claim was subject to the rent and the expenses the landlord had incurred in cultivating the crops. '*' (8.) If the grantor shall fraudulently either re- move or suifer the said goods, or any of them, to be removed from the premises ; Fraudulent Mei'e removal will not be sufficient — it must lie shewn to removal. i • i t n t • be With intent to deprive the mortgagee of his remedy; '"' thus, if the efEect of the removal would be to deprive the mortgagee of his security, and leave him to his barren remedy by action, it would seem the removal may be within the sub- section ; *'" but in all cases it will be a question of fact whether the goods were fraudulently removed ; and in a case under the Statute 11 Geo. II. c. 19, although the tenant admitted he removed goods to avoid a distress, the question of fraud was leftto the jury.''' Befoi-e the amendment Act, even where no power of seizure on removal was given by the bill of sale, if the grantor dealt fraudulently with the mortgaged goods left in his possession, as if he attempted to sell them, the mortgagee might imme- diately commence an action for the recovery of the goods or their value, '^' and to restrain their removal ; and it would seem that he might have taken possession if he could do so peacealjly and without violence.'*'' (a) Smith V. Brown, 48 L. J. Ch. 694. (6) CJlements v. Matthews, 11 Q. B. D. 808. (i) Parry v. Duncan, 7 BhiK. 243 ; M. & M. 533. («0 Opperman c. Smith, 4 D. & Ry. 33. (e) John V. Jenkins, 1 Cr. & M. 227. ' (/) Fenn v. Bittleston, 7 Exch. 152 ; 21 L. J. Ex. 41. (g) Story on Bailments, 396. THE BILLS OF S ALK ACT (187H) AMENDMENT ACT, 1882. IL". SeC 7. 1882 I (i.) Ft" the grantor sli;ill imt, witlmut roason- iibl«' excuse, uixm tlt'iiiiiiul in writiiif^ by tlie •grantee, product* to Liiu liis Isist receipts for rent, rat^s, and taxes ; The effect ot sees. 13 and 14 of the araeiulment Act will Lc PrwlucUon of receipts. further to imperil the mortgagee's .security, for the landlord and tax collector have five days to levy after the mortgagee has seizi'd, an opportunity they will probably not neglect. Where the grantor did not upon demand in writing by the grantee, produce a receipt for rent which had only become due a few days, and of which it appeared the landlord had not yet re(|nired payment, it was lu'ld that the grantoi- had not failed trc viiliii. repealed sec. 20, was_jatit--eiiiicntial ; for to create a necessity for registration there must have been apparent possession of the goods and a lapse of seven days after the bill of sale was made; nor was the case within the .section by reason of apparent possession, the seven days not having expired, for the assignee had the period of seven days within which lie might complete his title by regi.stration, and if he took and retained a more than formal possession, he acquireil a good title, and no registration was necessary.'" The bankruptcy of the grantor within the seven days allowed for registration did not affect the bill of sale if registered in due time;'^' Imi it was held under the Bills of Sale Act, IH-'A, that po.ssession taken under an unregistered bill of sale, after the time for registration had expired, could not avail against the title of a tra.stee under a subsequent petition, if the grantor had committed a j)rior iwt of bankru|)tcv, though such act ot bankruptcy might have been unknown to the grantee at t lu- lu) Parnncoll r. Dieiidonn*^. 2 T. L. R. (6) Hay r. Nathan, 3 T. L. R. U. (c) Hall r. Smith 3 T. L. R. Mi'6. M) Crantlehl r. CranflcUl, 23 L. R. Ir. 566. {*) MnrplcH r. Harllov, 1 H. A S. 1 ; 30 L. J. Q. H. 02; Hiilling«worth r. Whii.-, II L. T. t«H; 10 W. R. ttllt; I'lercy c. Humphrpys 17 L. T. 4•■»*• (1) Under thr Bills of Salo Acts. 18.54 and 1866, attestation was not essential to the validity of a bill of sale;'*' but the formality of attestation by a solicitor was introduced by sec. 10. sub-sec. 1, of the principal Act. now repealed, and everj" bill of sale to which that Act apjilied must have been attested in the manner yirescribed. By sec. 10 of the amendment Act, the execution of every bill of .sale by the grantor shall be atteste;A Furbur, rt-Pellew.e Ch. D. 181 ; 36 L. T. 668 ; cjp. Clmplin, r*' Sinclair, 26 Ch. D. 319 ; 53 L. J. Ch. 762 ; 51 L. T. 345. (d) Biddulph v. Goold, U \V. R. 882 ; Kcvan v. Mawson, 24 L. T. N. S. .395. (t) ix^i. Challinor, re Roprcrs, IC Ch. D. 2fiO ; 29 W. R. 204 ; 11 L. T. 122. THK BILLS OP SALK ACT (IM78) AMENDMKNT ACT, 1H82. iLT. See. 8. [1882.] If the cunsiderHtion is stntcd in the way in which it wouhi Ixj hrdinarily stated between a mortKiiK<»* ^nd mortgagee it is siitticient, lor the Act does not intend to throw any greater l)urden on a bill of sale holder than on an ordinary mortgagee; but the statement of consideration must contain on the fare of it what is substantially the whole transaction, and if it does so it is sufficient.'*' Therefore, substantial lu-curacy will satisfy the requirements of the Act, and although the bill of sale will be avoided by a material mis-statement, whether intentional or the result of accident, unless, jjcrhaps, a mere clerical error, a small iniu'cunvcy in the statement of the consideration will not have that effect ;'*' thus stating the consideration as £'.>2, or thereabouts, was held sufficient.'" And if the bill of sah- states as the consideration an amount really stated on accounts J»etween the parties, an arithmetical error, honestly made, in the figures the basis of such account will not be treat'd as an untrue statement of consideration : so where £10 of the con- sideration was mentioned as the value of goods sold and delivered to enable the grantor to carry on his business, the consideration was held truly stated though some part of the goods were not delivered until after the bill of sale was executed.'''' Neither is it necessary to set forth every bargain oi" stipu- The con»iaer»- lation collateral to the consideration,''' nor need the i)n)j)osed '""' application of the consideration be stated; thus, where a l)ill of sale recited that the grantor, having two exeinitions on his premises, and being unable to carry on his business by reason thereof, had applied to the mortgagee to lend him £182 3s., to enable liim to pay out such executi(jns, which the mortgagee had agreed to do on having the assignment, and then the deed iitated that in pursuance of such agreement, and in considera- tion of the sum of £182 3s. then paid, the grantor assigned certain chattels, and it appeared the mortgagee, with the grantor's sanction, gave several cheques amounting in the whole to that sum, one being given to the sheriff's officer another to an execution creditcjr. another to the grantor, while (u) Ri>l>erU* r. Robcrtit, 13 Q. B. D. 7M. (4) A'j-/.. WmU'r. r< Fothernill, U L. T. -JiJ ; 20 W. K. .")75 ; ?x;>. Pnibyii, rr Barrett, S.J., 1880, :m. (e) Hughes r. Little, 18 Q. B, U. 32 ; 5ii I,. .1. Q. B. IW ; 3.'. W. H. 30 ; Cr, I,. T. 478. (d) Gritfith r. Williama, 03 L. T. J. 9. {e) Kxp. Ndtioruil Mon-Hiitilo Bunk, r- Uiiyncs, 15 Ch. D. 42 ; 2S W. R. 8M ; 4'J L. T. .m ; to L. J. Bank. 02. G Sec 8. 126 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.] £25 was paid to the grantor's solicitor for money lent and costs, it was held that in the absence of any suggestion of fraud, the consideration, which was the amount of money paid, was sufficiently set forth.*"' Again, the consideration was held truly stated where a debtor who owed £235, partly secured by an existing bill of sale, executed a second bill of sale of the same chattels to secure £290, on the understanding that out of such sum he should pay off the existing debt. The bill of sale was expressed to be given in consideration of £290 then paid, without alluding to the intended application of the money ; and £290 was in fact advanced to the grantor, who the next day, in pursuance of the arrangement, applied £235 of it in paying off the old debt.^"' The cousiilera- Where a bill of sale recited a debt due to the mortgagee ^^^ ' and that the grantor had agreed to execute the bill of sale in order to induce the mortgagee not to institute proceedings against him, the deed was supported although in fact no pro- ceedings had ever been threatened, nor was there any evidence of pressure ;'''' and so a bill of sale was held valid when the consideration was stated to be amongst other things a covenant V)y the mortgagees, which covenant was not given/'''' Again, it was held unnecessary to set forth a verbal agreement not to register a bill of sale in consideration of which a larger bonus was given.*'' But the true natui-e of the transaction between the parties must always be set forth ; and the Court can inquire into the consideration for a bill of sale, and when a judgment, alleged to have been obtained by collusion, was stated as the con- sideration, the Court admitted evidence to pi-ove that collusion existed.'-'^ And where the consideration was an amount stated to have Ijeen advanced, but in fact a considerable portion was a mere liability which the mortgagee had arranged with the mortgagor to discharge, the consideration was inquired into (a) Hamlj-n v. Betteley, 5 C. P. I>. 327 ; « L. T. 373 ; 49 L. J. C. P. 465 ; 28 W. R. 956. (4) Thomas v. SearleM [1891 ], 2 Q.B.,408. (c) Exp. Winter, re FotherRill, 44 L. T. 323. ( was not " tlieii owing."'*' Where the grantee held eiirrent hills of the grantor for £8,:{00, bnt the consideration was stated as £'7.57.'j then owing; it was held, assuming, as wa.s alleged, an agreement for th<- sum stated to ho taken as representing the debt between the parties, that the consideration was not truly stated, for the agreement should have been .set out as jmrt 4)f it.'" Also, if money, the eonsideration for the l)ill of sale, is The cjnsi.leia- advaneed at different times, it should, in general, l)e so KtatLKl; and where loans amounting to t"24^> liad from time to time, in the months of March and April, l)een made to a firm consisting of the grantor and other jjersons, and sub- sequently, in June and July, other moneys, amounting to £160, had been advanced to the grantor, who had dissolved j)artnersliip and taken over the debts and asset.s of the late firm, the bill of sale reciting that in tlu; month of June last the grantor applied to the mortgagee to lend him the sum of £34<', which ho consented to do, and then went on to recite a further appli(;ation and loan of £60, it was held that the consideration not being truly set forth, the registration was void;'"*' Indeed, as a rule, if the time of ])aymeiit is mentioned, it must be truly stated. Thus, where a bill of sale stated the consideration to be paid at or before its execu- tion, but in fact only a small portion was then paid, part being handed some days afterwards toother persons at the grantor' •• request, it waw held that the ctjusideration was not truly stated."' (u) NoniiHii r. HnclifcB, C A. Trinity 8itlint{a, IWCJ. (MS. not*. 16) Mayer c Miiiiiluvich.60 L. T. 400. (c) Cochmne r. Muore, 26 Q. H. n. r>7 ; 8m W. U. 5hh ; «,» L. T. IM ; f.9 T,. J n, 12 t"h. I). UOI ; 41 h. T. .\7 ; 27 W. R. IMJ. {*) K>/>. Rolpli, rr SiiiiKller, lU Ch. D. W 61 L. .1. fh. HH ; ."JO W. R. 62 46 L. T. 4H2. G 2 V Sec. 8. 128 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.] On the other hand, as " pajTnent " does not necessarily mean payment in pTcesenti, a security was supported expressed to be given in consideration of the payment of two sums of money, the first of which had, in fact, been paid some months previously.'"' The considera- In another case the facts were, that in January, 1879, the debtor was indebted to his brother in £200, and by a bill of sale, dated the 17th of that month, in consideration of a past debt of £200, and of £50 then advanced, assigned to his brother certain effects. It ajopeared that of the £60, £5 had been advanced the previous day, so that on the execution of the deed only £45 was actually paid over, but it was held by the Chief Judge that the statement of the consideration was substantially correct ;'*' and so where the consideration was stated as money paid on or immediately before the execution of the bill of sale, but in fact half of it was paid four days previously on the grantor's written undertaking to give a bill of sale ;''* and where the consideration expressed to be now paid, had in fact been paid four days previously on the execu- tion of a prior bill of sale, cancelled by the parties as con- taining clauses inconsistent with the Act, the statement was held sufficient.'"" For if the facts are stated with substantial accuracy, accord- ing to their legal, mercantile, or business effect, it is sufficient, though they may not be stated with perfect verbal accuracy ; thus where a bill of sale recited that the grantees had agreed to lend the grantor £7,350, and that he was already indebted to them in other sums, that it had been agreed between the parties that the grantor should execute the bill of sale as a security for the repayment of the first-named sum with interest, and witnessed that the bill of sale was executed "in pursuance of the said agreement, and in consideration of £7,350 now paid " by the grantees to the grantor, a receipt being indorsed, Ijut in fact no money actually passed between the parties, the sum of £7,350 being the l)alance due to the grantees in respect of advances made Ijy them to the grantor from time to time, it was held the consideration was suffi- (o> Garrard v. Meek. 29 W. R. 244 ; 43 L. T. 760 ; 50 L. J. Uh. 187. (b) ExjK Smith, L. J. N., 1880, p. 39. (e) Exp. John8on7>)r-ehBpinaTi, 26-Oh. D. 338 ; 50 L. T. 214 ; 32 W. R. 693 53 L. J. Ch. 762. (rf) Exp. AUam, re Mundar, 14 Q. B. D. 43 ; 33 W. R. 231. THK lUl.LS OF SALK ACT (1878) AMENDMENT ACT, 1882. 120 See. 8. 1882.] cieiitly set forth, iiiasiniicli sis the pffect of the rocituls was to wipe otit th<> old debt iiiid constitute' ii now ItMxlin^ on tlio terniH of the hill i>f sale.'"' On •J-'ith < )ctobi'r 1885, a hill of sali- wjis j^ivcn to secure ^j,,, i'220 and intere.st, stated a-s £100 advanced in 18M2, and £lli<) then iwlvanced, tlie facts being that iJlOit w«,s lent in 1H82, £20 on October 12th, 1885. £20 on October 20th, £66 on October 2Jnd, the lialancc being .£'7 due for interest on the first £lt>(>, and £7 for rent. On 22nd .\|)ril 18K6, after the day fixed for payment, the bill of .sale being found void, a new i)iil of sale was given to secure the same £"220, expressed to be " in consideration of £220 now paid," no money passing. The Queen's Bench Division and the Court of A])poal uplield the bill of .sale, deciding that the consideration was truly state00, being aide to ])ay £500 only, ngi-eed that the balance of €2.00il should be secured by a bill of sale, and accordingly, immediately after the assigimicnt to him of the brewery, executed a bill of sale expressed to be made in consideration of £2,0O0 paid by the mortgagee to the grantor "immediately before the execution of these pre.«*ents,** but no money, except the £500, was paid, the£2,(X)0 being the unpaid l»alance of the jmrchase-money, it was held that the consideration was ])ro[)erly stated;'''' and when on a sale of furniture for £600, the purchaser paid £100, giving, to secure the iialance, ii l)ill of .sale expressed to be in considerati(>n of £500 •' now paid," it was held sufficient."' In another case the grantor was indebted to the creditorH, and the i)ill of .sale, after reciting that they had agreed to advance £2.050, witnessed that in cfuisideration of £2,05o the (o) Crwiil CVimpanv r. Pott, « (J. H. D. JIW ; '.'O W. K. 32« ; 5ii L. J. Kx. 108 ; U L. T. 50«. (i) Kxi>. NVlHon, re H<>cka. Berwick, re Yountf, 2« \V^HU4ai+-^3'L. T. .ITH. id) Kxp. Bnlland, re fUi\teT, 21 I'h, D. 643 ; 31 W. K. lOi ; 5J L. J. Cli. 113 ; V L. T. HM. {e) ?tinifortli r. (.'Hpon, HO L. T. J. 37«. Till- roiiHi'letik- Sec. 8. 130 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.] grantor granted to the creditors the chattels comprised in the bill of sale. On the execution of the deed, £2,050 was handed by the creditors to the grantor, who at once handed back £560 to pay off his liabilities to the grantees. In giving judgment, James, L.J., said : " The consideration must be truly set forth ; probably it need not be stated with minute accuracy, but it must be set forth substantially. It has been contended that any collateral stipulations as to the ajjplication of the consideration ought to be set forth as part of the considera- tion ; that there should be recitals of the intended application of the consideration. I cannot see that recitals of the motive and object of the advance are required by the Act. Col- lateral matters and stiijulations and the motives of the lender are no part of the consideration for the deed, though they may be an inducement or reason for the advance. Suppose instead of there having been bills due by the grantor to the creditors there had been outstanding in the hands of some other per- sons bills upon which the creditors were liable, and they had said to the grantor, ' You must take up these bills ' ? or, sup- pose 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 imperilled ' ? Stipulations of that kind would Ije proper enough, and would be jjart of the bargain as between the parties, but they would be no part of the consideration which is intended by the Act to be set forth. In my view the Act, while requiring the real, the actual con- sideration to be set forth, does not require that any bargain between the parties relating to it should be stated. Of course if there was a bargain that the whole sum, which is stated to be the consideration, should ])e at once returned to the grantee, that would be a sham transaction, and the Court would know how to deal with it."""' The cnnsidera- Again, where a bill of sale stated the consideration to be tion. ^ . £560 " this day j)aid l)y the mortgagee to the mortgagor," but in fact £500 only was paid to the mortgagor, £20 at his request being paid to the valuer who valued the property for the purpose of the loan, and £40 represented costs of the bill of sale and other documents, which the mortgagor requested the mortgagee to include in the bill of sale, the consideration was held to be set forth within the section.'*' (a) Erp. Xational Mercantile Bank, re Haynes, 15 Ch. D. 42 ; 28 W. R. 848. (i) Hamilton v. Chaine, 7 Q. B. D. 319; 29 W. R. 676; U L. T. 764; 50 L. J, Q. B. 456. THK HILLS OK SALK ACT (1H78) AMKNDMKNT ACT, 1HH2 Ml geC. 8. [1882.] But th»' (loctrinr of tlirsf cuscs will imt lu- extended ; and a f»ill f)f sale was set asi, hut it a|)]>eared that of this t'"J71 had I n pn'viously paid hy tlie f^i'imtee to diseharj^e a prior liill of siile, and that on a cheque for the balance hein^ handed to the grantor it hiui, at her request been cashed, and part of it paid to one «)f her creditors, £21 to a solicitor for preparing the hill of sale. €7 10s. being retained by the grantee for com- mission on the loan, and expenses in coiniection therewith, a promissory note for £10 being given for a like purpose, the balance only being received by the grantor.'"' Indeed, the cases of re Haynes and ex parte Challinor are now binding authorities oidy so far as they decide that if part of the con- sideration is, by the grantor's direction, given at the time of executing the deed, applied in satisfaction of a then existing debt owing by him. the money so paid may be properly stated in the deed to be then paid to him.'*' But there must be a debt due or payable, irrespective of the agreement to make the payment, and money retained with the grantor's consent to meet futurt' lial)ilities which are not debts due or payable caimot be stated as now paid. So the consideration was held not truly stated as " now ])aid " where part only was paid to the grantor, the remainder being by agreement retained by the grantee in satisfaction of the grantor's running accept- ances, of a sum for future hire of the furniture assigned by the bill of sale, and of an agreed sum for the expenses of the transaction.' The object of setting forth the considcialiim has been said The cousidem- to i)e to prevent the giving of a security for a sum stated to be advanced, when in fact a part of it is retained by the mort- gagee ; thus, where a bill of sale was expressed to be given iu consideration of £120 paid on its execution by the grantees to the grantor, but in fact only £90 was paid, £;jO being retained for interest and expenses, and after the usual attestation clause was a receipt for £l»0, signed by the grantor, stating that the £90. together with the agreed sum of £:3(> for interest »nd expenses, making the sum of £120, being the considera- tion money expressed to be paid, it was held by the Court of (.j) JSjt;.. flml'.inor, r« Rotfcnt, 1« I'li. U. 2«0. (A) Ex;i. Firtli. rr Cowlmm, 10 Ch. D. 419 ; 51 L. .1. Cli. 17:J ; *• W. H. r,T.> ; 4fl I,. T. lin, 86 L. T. J. 12«. (») RoliertHr. RobortH 13 Q. U. D.. 7»4. Sec 8l 134 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1888. '[1888. Ehe grantor acknowledged, the bill of sale was upheld, although only £54 was in fact paid.'*' Some further guide to a statement of the consideration may be found in the following cases, decided under the re- pealed Annuity Act, 1777, 17 G-eo. Ed. c. 26, which, by sec. 3, provided that in every annuity deed the consideration should be fully and truly set forth and described. Under this statute it was held unnecessary to set out a mere nominal considera- tion, as 10s. to a trustee, it being like the reservation of a peppercorn rent, and in fact seldom paid;'*' and when an annuity deed was granted by three persons, one of whom was known to be merely a surety, it was held that if all were pre- sent when the money was paid, and signed the receipt, the consideration was properly stated as a payment to all. '"' On the other hand, when the consideration was stated as £6*X) paid, but the real consideration was the payment of £300, and the giving up of a former annuity, it was held insuflScient, the objection being not that the consideration was not a good one, but that it was untruly stated.''*' (3) This provision is entirely new. and while under previous sale may be- statutes an unregistered bill of sale was void only as against comem . ^ certain class of persons, registration not being essential as between grantor and grantee,'*' by this section a bill of sale to which the amendment Act applies, if not duly registered is absolutely void in respect of the personal chattels comprised therein, even as against the grantor. Indeed it would appear that the object the Legislature had in view was not merely the protection of creditors, but to ensure that whenever the property in chattels is changed as security for a debt, it should be changed in a particular manner.''' It will be observed that by this section bills of sale are declared void only in respect of the chattels comprised therein, and therefore covenants contained in them may still be valid; although, as will be seen, a bill of sale void under section 9 is void altogether ; '^' in so tar as the rights purport- ing to be given are incident to the security by bill of sale.'*' (a) CoUia f. Tnaon, 16 L. T. 387. (i) Ince r. Everard, 6 T. R. 5-45 ; Few c. Backhouse, 8 A. Jt E. 7S9. (e) Cook c. Jones, 15 Eaat, 237. (d) Washburn, n. Birch, 5 T. B. 172. («) Davia c. Goodman, 5 C. P. D. 128. (/) S#< Hag-faea e. Morris, 2 De G. M. A G. ;K5. (y) Daviea e. Beea, 17 Q. B. D. 108 ; 35 L. J. Q. B. 363 ; 34 W. B. 513 ; 54 L. T 813. {hi Ex-p. Byrne, r*? Burdett, Ti) Q. B. D. 310. THK BILLS OF SALE ACT (\H7H) A.MKNI>.MKNT ACT, IHH2. ia.'> SeC, 8. [1882. J -'Vhr section is not rt'tro.spective, iinn r. Swire, 9 A.\>]\ C'li. H6a. (6) Bnnhurv r. WliiU', ;<2 I,. .1. Kx. 2oH ; > H. & C. .JiNl ; 11 W. R. 7«6 ; It .lur., N. 8. 9i:j ; H L. T. Srw ; BriKimll r. Cohen. 21 W. R. r>. (e) Ex),. Kiilien. r<- Hower, 'l Ch. 0. H71. (./) l.« Kliz. r. 6. («) Sec. M (1S82). t/-) .Sec. U (1»m-»). is) Sec. 12 (1882) (A) Sec. 4 (1882). Sec. 8. 136 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.] chattels specifically described in the schedule, of which the grantor was not the true owner at the time of its execution;'"' but nothing contained in ss. 4 and 5 of the amendment Act will render a bill of sale void in respect of any of the things excepted by sec. 6 of that Act. A bill of sale to which the amendment Act applies will l)e no protection in respect of personal chattels included therein, which, but for such bill of sale, would have been liable to distress under a warrant for the recovery of taxes, poor and other parochial rates.'*' By the principal Act, certain instruments giving powers of distress are deemed bills of sale, within the Act, of personal chattels which may be taken under such power of dis- tress;'*^' and a bill of sale is declared absolutely void when executed within or on the expiration of seven days after the execution of a prior unregistered bill of sale com- prising the same chattels as security for the same debt, so far as respects chattels comprised in the prior bill of sale, unless the subsequent bill of sale was given in good faith for the purpose of correcting some material error in the prior deed, and not for the purpose of avoiding the Act.'''' Also registration is declared void of a bill of sale given subject to any defeasance, condition, or declaration of trust not contained in the body thereof, unless written on the same paper or parchment therewith before registration and truly set forth in the filed copy. ''' Further, the registration of a bill of sale must be renewed once at least every five years, or the registration will become void;'-''' in which event if the bill of sale is subject to the amendment Act it will be wholly void even as between the parties.'*' PoBsession Possession taken and retained under a void bill of sale will deed. not protect the goods,'*' where the whole agreement between the parties is contained in the bill of sale, for that is the only evidence of their bargain, and if the agreement in writing is void there is nothing to which possession can l)e referred. ''* But a debtor who is aware of the invaliditj- of a bill of {a) Sec. 5 (lss2), (/) Sec. U (1878). (b) Sec. 14 (1882). (g) Fenton o. Blythe, 25 Q. B. D. 417. (c) Sec.6 (1878). (k) Hxp. Parsons, rr Townsend, It! (d) Sec. 9 (1878). Q. B. D. 532. (e) Sec. 10, sub-see. 3 (1878). (i) Newlove c. Shrewsbury, 21 Q. B. 1). 41. THK HII.LS OF SALE ACT(1878) AMKNDMKN r ACT. IHH2 137 See. 8. 11882. i sale may jfive his creditor a right to si-i/.e the ^iodn c;(jm- priSi'd in it, and to acquire a property or beneKcial interest in I horn, irre.speetivo ofthe hillof sale; though if he only intendH to carry out on his part the provisions of the liiil of .sale, and to permit the creditor to exercise his riglits under it, no right in addition to or other than those created hy the hill of sale will l)e conferred.'" However, if chattels coven-d l»y a void hill of sale are sold, and the grantor as.scnts to the application of the purchase-money, his trustee in hankru])tcy, apai't from any (piestion of fraudulent preference, cannot recover it ;'*' and where a hill of sale holder, whose security was defective as against an execution creditor, .seized the goods and afterwards sold them, it was held, mid affirmed l)y the House of Lords, that the pureha.stT liad a good t itle against an execution creditor of the original mortgagor, for that after seizure and sjile the original bill of .sale was satisfied and gone, and the Acts did not apply ; for the exercise of a power of .sale, when there was no person entitled as against the mortgagee, put an end to the Ijill of sale, and conferred an alj.solute title on the purchaser.'" Even if a bill of sale he invalid, a grantor who has taken when ^,'Tn"l<"" a benefit under proceedings ba.sed on the validity of the bill ^^^Jbur of sale, by which the position of the mortgagee Has been of »''■• changed, cannot afterwards be heard to say that the bill of sale is void. So when the grantor of a l)ill of sale filed a petition, and in his statement of affairs returned the grantees as secured creditors, and they, having sold the pro- perty assigned, proved for the balance, on which the grantor paid a composition .sanctioned by the Court, he was held e.-^topped from setting up the invalidity of the bill of sale, that being inconsistent witli his conduct in paying a compo- sition on the balance of the debt after taking credit for the amount realized by the security.'''' On the same princii)le, if a trustee applies to the Court of Bankruptcy to .set aside a bill of sale of goods, which have been sold by the grantee, and for payment over of the jiroceeds, he cannot aftei'wards sue tor the difference betwce!i the sale price and the true; value of the goods, for he elects to waive the toi"t. In >ucli cases lie (.1) FiirlMjr c. Cobb, 18 Q. H. D. tOt; M L. T. OsU ; ■<■> W. It. M'.is. (A) ParwiuB r. Dowsbury, .1 T. L. R. 354. (<•) C"Mik.Hon r. Swire, App. Cnscs, 053. (rf) Roe r. Mutuiil Loau Fund AsBOciation, 19 Q. IJ. t). 3ir ; .'.<", I,. .1. Q. H. .%41 ; 3'. \V. R. 723. Sec. 8. 138 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.] should claim the value of the goods and damages, '"' although the Court of Bankruptcy under the Bankruptcy Act, 1869, would not award damages for acts committed prior to the commencement of the trustee's title.'*' Although a bill of sale complies with all the provisions of the Bills of Sale Acts, it may Ije impeached as fraudulent against creditors, either under the Statute of Elizabeth (13 Eliz. c. .5) or the bankruptcy laws. Fraudulent The Statute of Elizabeth enacts that every gift or grant of conveyances, t r. • i i , • i , ,■ i chattels, made tor any intent to delay, hinder or defraud creditors or others of their just remedies, and every suit, or judgment and execution made with a like intent, shall, as against the person .so delayed or defrauded, be utterly void, frustrate and of none effect. By sec. 6, there is exempted from the operation of the statute any alienation lawfully made for good, which here means valuable, consideration, and bond fide to any person not having at the time of such alienation notice of such fraud. To In-ing the case within the exception, there must Ije valuable consideration and good faith, for a convey- ance, though made for valuable consideration, may be fraudu- lent in law if made to defeat creditors.''"' Gross inadequacy of consideration is evidence of fraud, although where the object is to establish or negative the existence of fraud, evidence may be adduced to shew that a deed voluntary in form was made for valuable consideration ; or that no consideration was given for a conveyance pui'porting to be founded on valuable consideration. ''" The Statute of Elizabeth does not apply as between the grantor and grantee, or privies or consenting parties, '*' or as between strangei-s other than creditors ;*-'^^ and therefore a conveyance, fraudulent under the statute, is good against the person making it ; although a sham transfer of chattels, without deed, for the purpose of defrauding creditors, has been held not to pass the property in them even between the parties, and the original owner recovered them in an (a) Smith v. Baker, L. R. 8 C. P. 350 ; 42 L. J. C. P. 155 ; 28 L. T. 637. (6) Exp. Eatoii>.'h, re aiffe, 28 W. R. 433 ; 42 L. T. 95. ((•) Ctulopan c. Kennett, Cowp. 432. (d) Townend r. Toker, 1 Ch. 416 ; 35 L. J. Ch. 608 ; 14 L. T. N. S. 531 ; 12 Jur N. S. 477 ; R. c. ScHminonden, 3 T. R. 474 ; Gale c. Williamson, 8 M. & W. 405. (e) Olliver c. Kin-<, 25 L. .1. Ch. 427 ; White p. Morris, U C. B. 1015. (/) Robinson c. M'Donnell, 2 B. & Aid. 134 Bessev c Windham 6 Q. B, 16<> 14 L. .T. Q. B. 7. THE BILLS OF RALE ACT (1878) AMENDMKNT ACT, 1882. n«» Sec 8. 1882.1 sctiun of trovor.'*' Hut the Kt4itute d«><'8 not extend to any estate or intereHt in ^oods, ('onvevcd or lusHured upon ^jjchmI consideration . and in jjood fuitli, withojit notice of the fniud ; and if. l)efore avoiihinre, the transferee assij^ns to a purchaser for value, the tnmsaction will he prot«'cted ;'*' for a oonveyance which by statute is void a^inst certain persons, may ho perfectly jjood between the parties from the time of its o|)eration until it is avoided, so as to pa.s8 the proj>erty in the chattels assijjned.''"' When onceavoided.it is taken as if it had never existed,'*'' so far as is necessary to deal with the property for the satisfaction of creditors, hut for other purposes the conveyance may stand ;''' thus a deed liy a bankrupt, void against creditors, may subsist for other purposes, so that any surplus romaininp after satisfying thi- cre«litors would be subject to the trusts declared by it."' A past debt is a sutiicient consich-ratimi within this statute ; and wlien coupled with a present sul)stantial advance, may rebut a presumption of an intent to delay creditors;^"' and a hmid fiilf assipnment by way of niortfjage of the whole of the assignor's property, present and future, to one person titi .security for a past debt and future advances is not void within the Statute of Klizalxth.'*' To invalidate an assignment made for valuable considera- Krnu.lulent tion. it is necessary to shew an actual intent U) defeat or delay creditors within the purchaser's knowledge. an«l this intent nmy be inferred from the circumstances of the case. If the deed is in such a form as to defeat creditors, and was exer-uted and takiii with that intention, it will be invalid, though full consideration was given for it ; '•' thus, where a trader whose goods ha«)1J 1 V\\. 31 60 L. J. Ch. 181 83 L. T. 02.J ; rr Brnll IWO , 2 Q. B. 3H1. (c) R. r. Crwuf. 2 C. C. R. 105. H) Hue r. Kronrh, 26 L. J. Ch. 817. (#) French r. Krench, fl Pe G. M. A O. W: -iU I,. .1. Ch. 612. (/) Rxp. Bell, rr Webb, 1 G. A J. 282. (g) Miirliiiilnle r. B I-. T. 7x0. (0 Hale r. Metn>lM)liUin .Siilf>on Omnibus Ci... 2S L. .t. Ch. 777 ; B<>U r. Smith. 21 Be«v. SU. ij) Grnhain r. Furlirr. U C. B. 410 ; 2 C. A I'. 162 : IH .lur. 226 : 2.1 I,. .1. C. I'. 61 ; RccU r. BludcH, 6 Tnunl. 212 ; Lntinier r. BnliM.n I B. A C. «6i. Sec. 8. 140 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.1 As, irrespective of the bankruptcy laws, a debtor may lawfully prefer one of his creditors to the others,'"' and before the seizure of his property under an execution can convey a valid title to any person without notice of delivery of the writ to the sheriff,'*' a bill of sale if otherwise bond fide, and for valuable consideration, will not be invalid merely because its effect is to delay a particular creditor, or to defeat an expected execution, '''' nor will such an effect invalidate a deed executed for the benefit of one or more creditors, unless the transaction is merely a cloak for retaining a benefit to the grantor, or made for the mere purpose of defeating creditors.'"" Thus, where a creditor, having taken in execution the goods of a debtor who had confessed judgment, bought them by public auction, taking a bill of sale from the sheriff for valuable consideration, and afterwards let them to the former owner at a rent which was actually paid, he was held to have a title which could not be impugned as fraudulent by other creditors having executions against the same debtor.''' So, apart from the bankrupt laws, if possession of goods has been taken under a Ijill of sale, part of the consideration for which was money advanced in good faith for the purpose of obtaining security for a pre-existing debt, the transaction has been said not to be invalid though the creditor was aware at the time of the advance that the debtor had committed a felony, and intended, with the money advanced, to leave the country.'-''' Voluntary A gift of chattels, coupled witli delivery of possession, is sufficient to pass the property to the donee without deed or writing ; but if the transaction be not for valuable consideration, it will Ijc voidable unless coupled with delivery of possession or made by deed ; "' and a gift by words of a chattel capable of delivery, the donee assenting and communicating his assent to the donor, does not pass the (a) Benton v. Thornhill, 7 Taunt. 149. (6) 19 & 20 Vic. c. 97, s. 1 ; Sale of Goods Act, 1S93, s. 26. ((•) Wood V. Dixie, 7 Q. B. 892 ; 9 Jur. 796 ; Piekstock v. Lyster, 3 M. & S. 371 ; Westljun' "• CIai)i), 12 W. R. 511 ; -i N. R. 453 ; Glndstone v. Padwick, L. R. (J Kx. 203 ; 40 L. J. Kx. 154 ; 19 W. R. 1064 ; 25 L. T. 96. (J) Alton V. Harrison, L. R. 4 Ch. 623. (e) Watkins v. Birch, 4 Taunt. 284 ; Cookson c. Fryer, 1 F. & F. 328. (/) Bagot V. Amott, 2 Ir. C. L. 1. (ule arc cleamc 1 rreditors is void by the very words of the statute ; and although fraudnloiit. the mere fact of a .settlement being voluntary has never been held sufficient to avoid it, if the natural result of the assignment would be to defeat or delay creditors, an intent to flo so may be presumed; for instance, if after deducting the property which is the subject of the voluntary settlement, sufficient available assets are not left for pajinent of the nssignor's debts, then there is a presumption of an intent to rlefeat creditors; or if the person making the .settlement was not in a position actually to pay his creditors, or was about to embark in undertakings which might result in liabilities, it may be inferred that he intended, by making the volui'taiy settlement, to defeat and delay them ;''' although the neces- .sary effect of the deed in delaying creditors is only an element in determining the settlor's intent.''" Another test suggested is that there mu.st be unpaid re. 25 Q. B. D. 67; 38 W. U. 588; 63 L. T. 16.3. (») Kilpin f. Ratlcy [18U21, 1 Q. B. 682 ; 06 L. T. 797. ie) frwrnnu v. 1'oih!, L. R. 6 Ch. 638 ; .*«) L. J. Ch. 680 ; :!3 L. T. 208 ; Spii.-li •. WiUtiwM. A De «. J. V 8. 283, {4) Exp. Murccr, re Wiwj. 17 Q. B. D. 280 ; 6-i L. T. 730 ; 56 L. J. Q. B. 568. {f) Holmi."* r. IVmicy, 20 L. J. Ch. 170 ; :» K. A J. 90 ; 5 W. R. 1.32 ; 28 L. I'. IM : 3 Jiir. .N. A. HU. H Sec. 8. 142 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.] takes the bulk of his property out of the reach of his creditors shortly before engaging in trade of a hazardous character, may be set aside on behalf of creditors who became such after the date of the settlement, even if there are no creditors whose debts arose before the date of the settlement ; '"' althougli in one case a deed executed with intent to defraud future, but not present creditors, has been supported ; '*' but this does not seem to be in accordance with the authorities. An assignment of chattels, together with leaseholds, may be deemed voluntai-y within the Statute 13 Elizaljeth, c. o. although the assignee takes the burden of the covenants.''"' Fraudulent In Twyne's Case,'"" which remains a leading authority at conveyances. , ^ . . o ./ the present day, six resolutions were delivered by the Court, declaring, as signs and marks of fraud, the generality of ii gift, the donor's continuance in possession, the secrecy of the transaction, that it was made pending writ, a trust between the parties, and that unusual clauses were contained in the deed ; and Lord Coke, sagely advising those aljout to take a l)ill of sale, says: " Let it ])e made in a public manner, and be- fore the neighljours, and not in private, for secrecy is a mark of fraud. Let the goods and chattels be appraised by good people to tlie very value, and take a gift in particular in satis- faction of your debt. Immediately after the gift take pos.ses- sion of them, for continuance of possession in the donor is the sign of trust." The tendency of modern decisions, however, is to decide every case on a consideration of all the circumstances. If the deed being absolute, the grantor con- tinues in possession until an execution or bankruptcy, a strong though not conclusive presumption arises of fraud, and a secret trust for the grantor's benefit ; '"' but on a conditions 1 bill of sale, continuance in possession, when consistent with the deed, is not even iirhnd facie evidence of fraud,'-''' unless such possession is a contrivance to defeat creditors.'"' As (o) Mackay r. DohkIhn, L. R. U Eq. 106 ; 41 L. J. Ch. 5.'}9 ; e.xp. Russell, re Biit- terworth, 19 Ch. D. 58« ; W L. T. 113 ; 30 W. R. 684 ; 51 L. J. Ch. 621. (6) Smith I). Tatton, « L. R. Ir. C. L. 'ii. (v) RicUer c. Uidler, 'ii Ch. I). 74 ; 31 W. R. 93 ; 48 L. T. 396 ; 52 L. .T. Ch. 34.1 (d) 3 Rep. ; 1 S. M. I.. Cnsps, 9th Ed. 1. («) Edwards c. Harbf-ii, 2 T. K. 587 ; Reed c. Blades, 5 Tsunt. 212 ; Paget r. Purchard, 1 Esp. 20.j. (J) I'ennell c. Dinvsoii, \h C. ». 355 ; Martindale r. Booth, 3 B. 4 Ad 498 ; Hale c. Metropolitan ShIooii Omnibus Co., 'IH L. .T. Ch. 777 ; Reed v. Wilmol, 7 Biuj,'. r,77. iff) Nune V. Wilsmoiv, H T. 1{. 521. TIIK HII,LS (»F SALK A("T(1K7M) AMKNDMKNT ACT. 1K.S2. lUi SeC. 8. [1882.] «,.cvi>( V is ii liudjrc (,f fiuiid, so iiutoiicty niiscs a |)ii-siiin|>ti<)ii .>t' piHxl faitli.'" To piovi- II l)illnt' salt- riaiidiiltiil . tlt(laralii)iis luado l>} the Kvulcuceof i^raiitor at thf tinu- of rxwiitiiij^ it an- adinissililc, hut not ''""'• t host' made at aiiotJicr time,'*' l)Ut the will of a doccaHt-d |M>rs<>n, though not pi-oved, has hcon admitted as a declaration tf» shew the jjood faith of a hill of sale.'" So al.so a solicitor • inployed to ohtain the execution of a deed, and who is one of the attesting; witnesses, is not preeludt'd on the j^i'ound of a liieaeh of professional contidence from gi\ injjj evidence as to what pas.scd at the time of execution l»y which the deed may l)e proved invalid; '*" and as communications between a solicitor and client are privileged oidy if passing between them in pro- fessional confidence in the legitimate conr.se of })rofeasional em|>loyTnent, and not if made before the commission of a crime for the purpose of being guided or lielped in the cum- mission of it, the evident^e of a solicitor of communications by hiH client, made for the purpose of obtaining advice to a.ssist liim in defeating a creditor's claim by a bill of sale, was help lightly received on a charge against the client and another per.son of conspiring to defeat the creditor's claiin.''' Butas the grajitor himself is liable to a ])rosecution, uj)on the statute 1;{ KHz. c..'), if party or privy to a fraudulent conveyance, he is not bound to answer rpiestions as to the true object of the trans- action.'/' A creditor may bring an action to set aside a deed uiiii biisint'.ss, aiitl had tin- h-mU'r ri-a.soiiabh' ^roimd.s for iM-lieviu^ that thi- a«lvaiuo woiilil t-nalile the horrower to do 8oP If thc8<« questioiiH (ran hi* uiiswi'?-cd in the affirmative the oxok at the uncommunieated intention of the borrower, nor at the aetual result of the loan.'*' The .same test has been stated, in other words, to be wheth<'r the further advance wji.s really made for the purpose of obtaining security for a pre-exi.sting debt ; '*' and thus was avoided a bill .if HJile driven to an exeeuti«»n creditor, wlio, to prevent hi.s "Xeeution beinj; impeached, a^f reed to withdraw and to make an :i. (o) Rti>. ("later, rr Wilkinwiii, V* U. T. H4H. id) HarriM r. Rickelt, 2« L. J. Kx. 197 ; Mener r. Pi-tcn(t)ii, L. R. 3 Kx. KU • txp. Iz*nl, fv Vif^k, h. R. 9 Ch. :'71 ; « L. J. Itaiik. 31 ; 22 \V. R. 341 ; .v> L. T. 7. («) Kxp. Fijthcr, rr Ash, L. R. 7 (1). (OO ; 41 L. J. Hank. fl2 : M U T. «31 ; 211 W. n. H40 : Kxf,. Hiirton, rr TniiHtnn, 13 Ch. D. 102 ; 2M W. R. Mtl : 41 U T. 671. ( f) JEr;. Kilnor, rr Barker, 41 L. T. .V.>»*ovf fj(M)(l faith unlt'ss duly stumped.'* Where the transfer is of part only of the deliinr'.- properly, the (piestiou wouhl appear to he whether insolvency, or in ease of a tra ; 16 \V. R. all ; IH L. T. sOJ. (6) WilliBiiif. r. (ierr.v, 10 .M. Jt W. 296. (<■) Hale r. AlluuU, \H C. H. 505 ; ML. .1. C. I'. 2fi7 : rsii. Wfiixltv, 1 L)c r;. J \ S. J73 ; :«•-' L. J. Hank. i< ; 11 W. R. 241 ; 7 L. T. 5-lH -. Jiir. N. S.:n5; Yoiuig I. Klotcher, 3 H. A V. 7.i2 ; 3* L. J. Kx. 154 ; 13 W. R. 722 ; 12 L. T. 392 ; 11 Jur. N. .S. 440. (./) Kxi>. KvaiiH, rf K.lwriril«. 30 L. T. Mi ; »x;.. Kielcrt r. SiMioncr, 1 M. A W. 71* ; 2 (Jnlo. 13fi ; frv. I'..«i><)ii. U R. H Ch. ««7 ; 21 W. R. tinn ■ 28 I,. T. 796 . 42 L. .1. Hauk. Vi : Kdwaids r. ,;ivii, 2s L. J. Q. B. 3W1 ; 2 K. A K. 2tt. Sec 8. 1^8 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.] fraudulent preference under the repealed section, was not necessarily an act of bankruptcy ; '"' but this was not free from doubt ; '** and as before observed, a fraudulent preference is declared an act of bankruptcy Ijy section 4, sub-sec. 1(c) Bankruptcy Act, 1883. In determining whether giving a bill of sale within the time limited constitutes a fraudulent preference, the words of the section raise two questions : First, was the grantor unable, from his own money, to pay his debts as they became due ; secondly, did he give the bill of sale with a view to prefer the creditor ? It will he observed that transactions in favour of creditors are alone affected by the section. ■'"' Fraudulent I^ order that a payment or transfer should be void as a preference. fraudulent preference, it is sufficient that preferring the creditor should have been the substantial, effectual, or dominant view with which the payment or transfer was made, and it is not necessary that it should have been the sole view. '''' This view to prefer may be rebutted by circumstances, and although regard should be had rather to the words of the section than to decisions before the Act,''* it would seem still to be law that if made m pursuance of a previous binding contract '-'^* or in consequence of apprehended civil or criminal proceedings,'"' or to avoid a distress,'*' or if in consequence of a demand or pressure by the creditor, '■' without collusion, ' ^ ' the transfer will not necessarily constitute a fraudulent preference. A threat of civil proceedings against a man who, to the knowledge of the creditor, is about to liecome l)ankrupt,as it can have no real influence upon him, will not (o) Exp. Stubbins, re Wilkinson, 17 Ch. D. 58 ; 50 L. J. Ch. 547 ; 29 W. R. 653 ; 44 L. T. 877 ; exp. Luck, re Kemp, 49 L. T. 809 ; 32 W. R. 296. (J) Pulling V. Tucker, 4 B. & Aid. 382 ; Exp. Halliday, L. R. 8 Ch. 283 ; 21 W. R. 348 ; 28 L. T. 324. (e) Exp. Kelly, 11 Ch. D. 306 ; 48 L. J. Bank. 65 ; 40 L. T. 404 ; exp. Stubbing, 17 Ch. D. 58 ; re Mills, 5 Mor. 55 ; 58 L. T. 871. (d) Exp. Hill, re Bird, 23 Ch. D. 695 ; 32 W.R. 177 ; 49 L.T. 278 ; 52 L.J. Ch. 930. (e) Exp. Griffith, re Wilcoxon, 23 Ch. D. 69 ; 48 L. T. 450 ; 52 L. J. Ch. 717 ; 31 W. R. 878. (/) Bills V. Smith, 34 L. J. Q. B. 68 ; 13 W. R. 407 ; 12 L. T. 22 ; 11 Jur. N. S. 154 ; Exp. Blackburn, L. R. 12 Eq. 358 ; 40 L. .T. Bank. 79 ; 19 W. R. 973 ; 25 L. T. 76. {g) iTjp. Taylor.reGoldsmid, 18 Q. B.D. 295 ; 56L. J. Q. B.195; 35W. R. 148. (h) Mavor o. Croome, 1 Bing. 261 ; Stevenson v. Wood, 5 Esp. 200. (i) Exp. Tempest, re Craven, 40 L. J. Bank. 22 ; 23 L. T. 650 ; L. R. 6 Ch. 70; Exp. Topham, L. R. 8 Ch. 614 ; 42 L. J. Bank. 57 ; 21 W. R. 655 ; 28 L. T. 716 ; Jones c. Harher, L. R. 6 Q. B. 77 ; 40 L. J. Q. B. 59 ; 19 W. R. 248 ; Smith r. Pilgrim, 2 Ch. D. 127 ; 34 L. T. 408. (j ) Exp. Arnold, re Wright, 3 Ch. D. 70 ; 35 L. T. 21 ; 24 W. R. 977 ; 45 L. J. Bank. 130, per James L. J. ; exp. Reader, 20 Kq. 763 ; 32 L. T. 36 ; 44 L. J Bank. 1.39. TIIK BILLS f)F SALK ACT (1878) AMENDMENT ACT, 1882. \VJ See. 8. 1882.1 protfct th»' tniiisjwtioii : '•' but in order thiit tht- truiiHnction «lioiil(l be found a fniudulent prob'rrnrc it i.s <>HNcntiul that \\uTv .should be t'vidt'ucr of ii view to prefor, and it iH not -^iiHicicnt that thr creditor wa.s in fact preferred; thus, a transfer or payment macie with a view to avoid expoHure or a criminal proHOCUtion, is not a fraudulent j)reference.'*' A ilebtor having borrowed monc'v from hie wife Rave her a bill of sale a.s security, which a mouth afterwards was found to l)e void as containing clauses not in accordance with the form. Two days after calling his creditors together he gave his wife a valid bill of sale, and, subsequently becoming tiankrupt, his trustee applied to set the bill of sale aside as a fniudideut preference. On the hearing it was found that the •^•H'outl bill of sale was given with the intention of making good the mistake in the first, and, by inference, with an inten- tion to prefer. Hut the decision was reversed on ajjpeal, as it did not nece8saril3" follow that the substitution of a good for a bad bill of sale was with a view to prefer, the intention in fa<"t being to correct a mistake, whicli rebutted the presump- t ion of a view to prefer.'"* Where, by virtue of a l)ill of sale, chattels l)ecome the ])ni- Kramlnlent perty of the mortgagees, and arc not in the reputed ownership '*™ ^rcmce. of the grantor at the commencement of his bankruptcy, it is immaterial whether the tran.saction by which the mortgagees obtain actual pos.session of such chattels would, if there had been no bill of sale, amount to a fraudulent preference. "" Under the Bankruj)tcy Act, 1869, a further «|uestion arose, for although a bill of sale was given in favour of a creditor by a person uiuible to j)ay liis debts, who became liankrupt within the prescriljcd time, the transaction might be protected by the last clause of .sec. 92, and sees. 94 and 9.'> of the Biinkruptcy Act, 1869, if the creditor could prove that he took the bill of sale for value and in good faith, that is without any know- ledge that he was being preferred ; •'' but the burden of proving this rested upon him.'-'' As has been noticed, the Bankruptcy Act, 1888, abolish«'s this protection. (a) Kxi: Hull, r< (Vk.ikt. 10 Ch. D. r»*> ; .".l U. J. t'h. 55«1 ; 16 U. T. filU. (ft) Kxp. Taylor. r<- (;ol-, y. App. Couch, 21.), Tin ■ M W. U. 62 ; 37 I.. T. 7.'ln. (/•) Kxp. Tate, 26 W. R, 52 ; 36 I,. T. .■.31. Sec. 8. loO THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882. Section 49 of the Bankruptcy Act, 1883, provides that 8ubject to the foregoing provisions of the Act, with respect to the effect of bankrn])tcy on an execution or attachment, and with i-esi^ect to tlie avoidance of certain settlements and ])references. nothing in the Act shall invalidate, in the case of a bankruptcj'- (a) any payment by the Ijankrupt to any of his creditors, (b) any payment or delivery to the l)ankrupt,(c) any conveyance or assignment by the bankrupt for valuable con- sideration. (d) any contract, dealing, or transaction bj' or with the bankrupt for valuable consideration, provided that both the following conditions are complied with, namely (1), the payment, delivery, conveyance, assignment, contract, dealing or transaction, as the case may be, takes place before the date of the receiving order; and (2), the person (other than the delator) to, by, or with whom the payment, delivery, convey- ance, assignment, contract, dealing, or transaction was made, executed, or entered into, has not at the time of the payment, delivery, conveyance, assignment, contract, dealing, or trans- action, notice of any available act of bankruptcy committed l)y the bankrupt before that time.'"' Protected trans- Where a person j-elies on the protection of the section the actions. i ^ l)urden of proof is on him to prove absence of notice of an act of bankruptcy.'*' Under the Bankruptcy Act. 1883, available act of bank- i-uptcy means any act of ljankrui)tcy availal)le for a bankruptcy petition at the date of the presentation of the petition on which the receiving order is made;''"' and by sec. 43 the bankruptcy of a debtor whether the same takes place on the debtor's own petition or upon that of a creditor or creditors, shall be deemed to have relation back to. and to commence at the time of the act of bankruptcy being committed, on which a receiving order is made against him. or, if the bankrupt is proved to have committed more acts of bankruptcy than one, to have relation back to, and to commence at the time of the first of the acts of bankruptcy proved to have been committed by the bankrupt within three months next preceding the date of the presentation of the bankru])tcy petition. By sec. 6, sub- .sec. 1 (c), the act of bankruptcy on which the petition is grounded must have occurred within three months before its (a) This section is in substance the hh me us scctionH 94, 95, Bankraptcy Act, 1869. (6) Jvx;). Cartwrijfht, re Jov, 44 L. T. HH.i ; ciji. Schulte, re Matanle, L. R. 9, Ch, 409 ; 30 L. T. 47s ; 22 V,\ R. 462. (c) B. A. 1H«3, 8. 168 (1). TIIK HILLS OK SALK ACT(1H7H) AMKND.MKN'I' ACT. IHHl' 151 SeC. 8. [1882. |)rcHi'iitati()ii. A dcod excc-utud mot-u tlmii throe inoiitliK next [irerudiiij; tin- pro.sciitiitiou of tlic itetitioii mi wliicli tlic hmimv- iti^ nidir is intido is th)>rct'i>n- imt iiii|)cach>il>l<* as an art of liaiikniptcv. " rndfr till' Haiikiupli y Act. lHHi». an act nt LuMkruptcy uvaihililc t"i»r adjudication must liavc occnrrcil witliin six months next before the presentation aukni|itcv on ut a ImII ot sale exei !-:tl<-. ru|)tcy on which the adjudication was profes.sedly founded was in fact committed, but a third party whose title to property is atfocted by the adjudication nniy appotl from it.''' The same effect wouhl seem now to follow the makiufj of a receiving order."" A trustee cannot avoid a bill of sale valid afj;ainst the bankrupt, except where by the statutes he takes a hif^her title than the bankru])t ; thus, where a del)toi- wrote his creditor informini; him he had forpjed his name to a bill of exchange, and <'nlreating him to take up the i)ill to save the dolttor from prosecution and iMiin. offering, if he wouhl do so. to give him a bill of sale to secur«' the amount of an existing debt and the fur- tluu- aion, both parties being in pari thlirln, the del)tor. if he had remained .solvent. co\dd not have rescinded i\\v contract, and t hi-re l)ei ug no offence agai list t he Ijankrupt laws his trustee stood in no better position.''* lender thi- Bankruptcy Act. i860, a trustee in itankruptcy could not resort to the Court of bankruptcy in all cases where he sought to sr-t aside a bill of sale; as he takes oidy (u) Alton r. BdiuiPlt. L. H. 6 Ch. 577 ; 23 li. T. H7 ; IH W. R. H71. (4| Rri>. V,i\\te\, rr BeUclI s (h.D. 2W ; tr I,. .1. Ilniik. 10 ; 2« W. 11. 7«8. (r) KxfK U>nroy(l. rr Kiiul(U, 10 Ch. U. I ; Mt I,, l'. .'.i'. ; ^'^ I,. .1. iJniik 17 ; 27 W. R. 277. (rfl H. A. l«n. H. i:J2 (2K (<•( &ri.. ('111(1001.11. rr MHplc»mck. ♦<•!,. I). l.-,«l V, \.. .1. Hntik 14; .16 I.. T. tm ; is W. H. \m : \:\ I'.ix ('. C. 37». Sec. 8. 152 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.] the bankrupt's title, except when the statute places him in a better position. It has been said that the jurisdiction conferred by the Bankruptcy Act. 1883, sec. 102, is identical with that given by sec. 72, Bankruptcy Act, 1869;'°' and the former decisions would, therefore, to some extent, seem still applicable. •?cSof* When a trustee takes only that which the bankrupt himself Bankruptcy. would have taken, the Court should not exercise jurisdiction and the matter should be left to the ordinary tribunals ; but when by the operation of the bankrupt laws the trustee claims by a higher and better title than the bankrupt, the case should be dealt with by the Coui't of Bankruptcy ; as when it is sought to set aside the transaction on the ground of the relation of the trustee's title, or of fraudulent prefer- ence'*' or, it would seem of fraud under the Statute of Elizabeth ; ''"' but if as against a stranger to the bankruptcy he seeks to set aside the deed on a ground which would have been available to the bankrupt, e.g., actual fraud, or the like, he should take proceedings by action.''*) In such cases the Court has a judicial discretion to be exercised with regard to all the circumstances ; thus where questions of character ai-e involved, and a large amount is at stake, the matter should be directed to be tried in the High Court.'''' Nor by the Bankruptcy Act, 1883, sec. 102, can a County Court adjudicate 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, or the money, money's worth, or right in dispute does not, in the opinion of the judge, exceed in value £200. Neither has the Court of Bankruptcy jurisdiction to enter- tain persona] claims between third persons, or claims to pro- pei'ty as between them, although the determination of such (a) Exp. Beestv, re Lowenthal, 13 Q. B. D. 238 ; 53 L. .1. Q. K. 524 ; 51 L. T. 431 ; 33 "W. R. 138 ; 1 Mor. 117. (b) Exp. Brown, re Yates, 11 Ch. D. 148 ; 40 L. T. 4<)2 ; 27 W. K. «51 ; 48 L. .1, Bank. 78. (c) Exp. Butters, re Harrison, 14 Ch. D. 265 ; 43 L. T. 2 ; 28 W. R. 876, per James L. .1. ; Exp. Price, re Roberts, 21 Ch. D. 557 ; 51 L. .1. Ch. 131 ; per Brett. L. J. (d) Exp. Dickin, re Pollard, 8 Ch. D. 377 ; 26 W. R. 731 ; 38 L. T. 860 ; 48 L. ,). Bank. 36 ; Exp. MuM^^ave, re Wood, 10 Ch. D. 9 ; 48 L. J. Bank. 39 ; 27 W. R 372 ; 39 L. T. 647. (e) Exp. Annitat,'e, re Learoyd, 17 Ch. D. 13 ; 44 L. T. 262 ; 29 W. R. 772 ; Exp. Price, re Roberts, 21 Ch. D. 553 ; exp. Hazelhurst, re Beswick, 58 L. T. 591 : 6 Mor. 105. (/) Exp. Scott, re Hawke, 16 Q H. D. 503 ; 55 L. .T. Q. B. 302 ; 34 W. R. 168 ; 54 L. T. 54 ; 3 Mor. THK BILLS OF SALK ACT (1878) AMKNDMKNr ACT. 188:^ ir.;( gpc. 8. [1883.) I'litiriiM might uIho dccidi' wliich of sik-Ii third |iiniic.s .sliuiild piovi- iigiiiiist tlio Imnkrupl's i-stute.'*' If, ln>wt\ t-r, ii .slr!iiim;r t(» th(( iHinkruptcy is williiij^ to Kubmit to tin* jiiriMlirtioii of the ('ourt of Bimkruptrv, the trustcie shouKl not ohject,"' unci iiiiy objection to jurisdiction niiist be tiikt-n nl the ciirb<'st inomont.'*' The holder of u valid registered bill of .sale iniiv. in the event niH. (c) Kxp. SwiiilMinki*. rr .Shanlui, 11 CU. D. 3i5 ; 48 L. 4. Hnnk. 12<) ; 27 W. |{ •08 ; to L. T. S2.-I. (rf) B. A., 1SS3. sec. (2). Schf §(.£; 9 tnulu or hiisiness, nmy puss to tin- trustcf, if soint'tliin^ has not [1878. 1>«'UI» dtim- l>y the l)ill of sjili- holder to avoid the opemtion of s. -14 (J) '"" of the Hankriiptry Act. 188:J.'*' 9 (1878 ) When' ii suhscquiMit l»ill <>f sale is Avoi.!.....-.- ■ / _ •* _ _ I'ortaiii ext'outt'il witliiii or fxpiratioii ot" seven days ''>'ci'fH«ivc after the execution of a prior unregistered bill of sale, and comprises all (»r any part of the personal chattels comprised in such prior bill of sale, then, if such subse(iu(?nt bill of sale is o^iven as a security for the same debt as is secured bv the prior 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 thereof, and so far as respects the personal chattels or part thereof comprised in the prior bill, be absolutely void, unless it is proved to the satisfaction of the Court havine^ coji^nizance of the case, that the subsequent bill of sale was bonS, 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. The section does not invalidate a suliseijuent Inll of sali' executed more than seven days after the e.xecution of a prim- unregistered bill of sale of the same chattels.'*' Apart from the .section a successive hill of sale will In- avoided if obtained by frand, thus where the j)hiintifi"s wli<> had i^iven the defendants a bill of sale, void under seeticm *.' of the amendment Act, attended at thcii- offices on request, and being informed they must give a new bill of sale did .'so : the Court held that the second bill of sale was obtained by a trick and set it aside, finding the defendants meant the plaintiffs to understan|«>on. 71 I-. T. .1. ?3«>. (») Buuchctte r. C T. 1,. It. n^'t. Sec. 9. 156 THE BILLS OF SALE ACTS, 1878 AND 1882. [1878. 1 Sec. 9. and grantee, made at the time of giving the bill of sale, to [1882.1 give and accept successive bills of sale, the last only to be registered ; and such an arrangement was good against execu- tion creditors,*"' although void against a trustee in bank- ruptcy,'*' unless founded on a new consideration.''' The giving of each successive bill of sale in substitution, was held to annul and cancel the deed that stood earlier in the series;''" but it would seem that the mere cancellation of a bill of sale does not revest any property in the goods in the mortgagor, if the cancellation is with the view of obtaining a better security, unless there is an intention to release;''' thus a bill of sale given after the grantor was adjudged bankrupt, in substitution for an earlier bill of sale, the grantee not knowing of the bankruptcy, was held not to affect the grantee's title under the first deed, the second having been taken under a mistake of fact ;'■''' and Nvhere the grantor having executed a bill of sale, subsequently gave the mortgagee another ]>ill of sale over the same goods for the same debt, reciting that it was given on account of doubts as to the validity of the first deed, it was held that the second Ijill of sale must be deemed to have been intended only to be effectual in the event of the first being invalid, and did not therefore cancel it.'"' But if it is found that the intention of the parties by the new deed was to put an end to the old, there cannot be implied a condition that the second deed shall be valid, and although void the first deed cannot be relied on. '*' Form of bill of 9^ (1882.) A bill of Sale made or given by way of security for the payment of money by the grantor thereof shall be void unless made in accordance with the form in the schedule to this Act annexed. (a) Ramsden v. Lupton, L. R. 9 Q. B. 17 ; Smale e. Burr, L. E. 8 C. P. 64; 42 L. .J. C. P. 70 ; 21 W. R. 193 ; 27 L. T. 555. (6) Exp. Cohen, re Sparke, L. R. 7 Ch. 20 ; 41 L. J. Bank. 17 ; 25 L. T. 475 ; 20 W. R. 69 ; Exp. Stevens, 44 L. J. Bank. 136 ; Stansfield r. Cubitt, 27 L. J. Ch. 266 ; 4 Jur. N. S. 80 : 2 D. & J. 222 ; Exq. Furber, re Pellew, 6 Ch. D. 181. ((•) Exp. Hall, re Jackson, 46 L. J. Bank. 39; 25 W. R. 382; 35 L. T. 947 ; 4 Ch. D. 682; Exp. Harris, re Pulling, 42 L. .J, Bank. 9 ; 21 W. R. 41; 27 L. T. 501 ; L. R. 8 Ch. 48. (d) Ramsden r. Lupton, L. R. 9 Q. B. 17. (e) Gummer c. Adams, 13 L. J. Ex. 40. (/) Exp. Hasluck, re Bargen [1894], 1 Q. B. -tW; 60 L. T. 763 ; 10 Mor. 301 ; 63 L. J. Q. B. 209. (g) Cooiier c. Zefiert, 32 W. R. 402. (A) Bresnovich v. Lcvison, 87 L. T. J. 37. THE HILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. in? SeC. 9. [1882.] This provision has been a fruitful source of litigation ; and has proved fatal to the validity of many bills of sale.*'' The .sfftion is intended to make void absolutely, and not merely ai;aiii.st all but the grantor, every bill of sale given by way of .security for the payment of money by the grantor unless inadi' in accordance with the form in the schedule ; and must lie taken to have prohibited bills of sale to which the form is not applicable ;'*' so that if the arrangement between the parties cannot be made in accordance with the form in the schedule, it cannot be made at all ;''' the amend- ment Act applying to every bill of sale given by way of security for the payment of money by the grantor, whctiier that money is lent or otherwise due or payable to the grantee, for whatever reason the grantor binds himself to pay and gives the bill of sale as security.''*' Thus a bill of .sale, abso- lute in form, but given by way of security for a loan, is wholly void.''''' It would seem therefore that inventories of goods with ^l"™ '>^ *"" »' receipt attached, receipts, powers of attorney, licences to seize and agreements conferring a right in equity to personal chattels, which are declared bills of sale by sec. 4 of the principal Act will no lunger be available as .securities, for they cannot fidHl the conditions jjrescribed by this section. But the docu- ments which by section 6 of the principal Act shall be deemed bills of sale, are not within this section, and need not be in the scheduled form, though they are to be treated as bills of sale for the purposes of registration under section 8 of the amendment Act.^'' By sec. 1, Bills of Sale Act, 1890, instruments hj^Dothecating or declaring trusts of certain imported goods during the interval between the discharge of the goods from the ship in which they are imported and their de])osit in a warehouse or delivery to a purcha.ser were not to be deemed bills of sale within the meaning of sec. 9 ; but such instruments, when of the kind mentioned in sec. 1 Bills of Sale Act, 1891, are now excluded from the operation of the Acts. (a) Form, page 280. (6) Thomas c. Kelly, 13 App. Cases, 506. (c) Exp. Parsons, re Townseml, 10 Q. B. D. 53'2. * (d) Hm;hes e. Little. IS Q. U. D, :il ; .1(1 L. J. Q. B. 06 ; 35 W. R. 3rt ; 55 L. T. t76. (#) Exp. Finlay, re Linton, 10 Mor. 25s. (/) Green r. Marsh [1892 :, 2 Q. B. .330. Sec. 9. 158 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.] The section avoids the bill of sale altogether, and not merely as to the personal chattels comprised therein, thus a covenant contained in the bill of sale for payment of principal and interest is also void;'"' and a void bill of sale cannot operate even as a licence to seize. '** When security But under the apparent form of a single agreement or divisible. . ^^ . ^ -, 1 , . , covenant written on one piece or paper and sealed with one seal, there may be several contracts or obligations, and though one of these fall the others maybe upheld ;<"' thus where a deed is a bill of sale of chattels personal, but in- cludes a mortgage of chattels real, it may, though void as a bill of sale, be valid in so far as it is a mortgage of chattels real;'"' and an agreement between landlord and tenant may be valid so far as relating to the tenancy, though conferring a power of distress which is void under the Acts.'"*' So where personal chattels and other property are mort- gaged by a deed not in accordance with the form in the schedule to the Act, such deed, though void as to the personal chattels, may be valid as to the other property, if it is possi- ble to sever the security; and a deed void as a bill of sale, assigning the several chattels and things specifically described in the schedule, was held good as to scheduled articles which were excepted by sec. 5 of the principal Act from the definition of personal chattels.'*' Again, an assign- ment of a hire agreement for pianos was held severable from a transfer, by the same instrument, of the pianos them- selves. '•'^' But this rule will not give validity to a bill of sale whereby things other than personal chattels are attempted to be assigned ; and the Court refused to sever an assignment of chattels real and personal so as to uphold the assignment of personal chattels as a bill of sale in accordance with the form.'«'^ Object of the The oljiect of the section has been said to l^e twofold- form of bill of ■' sale. first, that the borrower should understand the nature of the security; secondly, that a creditor on merely searching the («) Davies v. Rces, 17 Q. B. D. 408; per Bowen L.J. (6) Grilflu r. Union Depcsit Bank, 3 T. L. R. 608. (c) Se O'Dwyer, 19 L. R. Ir. 19. (d) Stevens v. Marston, 39 W. R. 129. (e) Exp. Bj-rne, re Burdett, 20 Q. B. D. 310; re Bansha, &c., Co., 21 L. R. Ir. 181. (/■) Exp. Mason, re Isaacson, 98 L. T. J. 15-5. ig) Cochrane v. Entwistle, 25 Q. B. D. IIG. Tin; mi-LS OK SALKACT (1H78). AMKNDMKNT AC T, lss2. l.V.t SeC. 9. [1882.] rej^ister should be able to understiind the borrower's pOHition, without having to get legal assistance as to the meaning of the security; for the Legislature intended that the loan of money on the security of a bill of sale should lie a simple transaction. Every bill of sale must be substantially like the form in the schedule; nothing substantial must be subtracted from it, and nothing actually inconsistent may be added;'*' for though the section does not make every word of the form imperative, it enacts not only what a bill of sale must contain, but what it must not contain.'" No defect in form can be supported by the atBdavit tiled on registration or by extra- neous evidence.'*'' A divergence becomes substantial or material which E:ip. stui.fii is calculated to give the bill of sale a legal consequence or effect, either greater or smaller than that which would attach to it if drawn in the form which has been sanctioned, or if it departs from the form in a manner calculated to mislead those whom it is the object of the statute to protect. If the instru- ment as drawn would in virtue of either addition or omission have any legal effect which either goes beyond or falls short of that which would result from the statutory form, or, in respect of such variance, would be reasonably calculated to deceive those for whose benefit a statutory form is provided, it will be void under the section, for whatever form the bill of sale takes, the form adopted by it, in order to be valid, must produce not merely the like effect, but the same effect — that is to say, the legal effect, the whole legal effect, and nothing but the legal effect which it would produce if cast in the exact mould of the schedule.'''' And this being a test laid down by the full Court of Appeal, is taken as qualifying previous decisions, and must in all cases be apjjlied to determine the validity of a bill of sale under the section.''' But the judgment in ex parte Stanford must bo read with reference to ca.'^es where the error in form is one relating to the contract, and must not be taken as intended to lay down a rule that nothing is a material departure from the form, (0) DuviB r. Burton, 11 Q. B. D. 537 ; i'l W. R. 42J ; hi L. J. Q. H. «3fl. (A) Thotniw r. Kelly, 13 App. Cases, a.*. (r» Bird r. Davey iHOl ; 1 y. B. 2U ; 39 \V. R. JO ; CO L. J. Q. B. 8 : 03 L. T. 7*1. id) Exp. buinfonl, re Biirbcr, 17 Q. B. D. 259 ; 31 W. K. 507 ; 56 L. J. g. B. .Ml; 54 L. T. WW. ('I K.>lly e. Kelloud, 20 Q. B. U. 509; 3U W. U. 30:J ; 57 I.. .1. Q. B. 33«); 5S L. T. 2t^. Sec. 9. 160 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.1 unless it alters the effect of the instrument : thus it is matter of substance that the attesting witness should be described on the face of the instrument, which is void if such descrip- tion is omitted.'"' Therefore, although agreements for payment, insurance, and such terms as are agreed upon for the maintenance or defeasance of the security may be inserted, the statutory form should be adhered to as closely as possible, every departure being attended with risk ; for no agreement can be included which does not reasonably come within the description given in italics within the brackets of the form.**' Maintenance of It will be observed that the scheduled form permits the security. . ' . insertion of terms agreed on by the parties for the maintenance or defeasance of the security, while one of the causes of seizure mentioned in sec. 7 of the amendment Act is for default in performance of any covenant or agreement contained in the bill of sale, and necessary for maintaining the security. It would thus seem that stipulations, if coupled with a power of seizure on default in performance, must be not only for the maintenance of, but necessary for maintaining the security, but that the bill of sale may also contain other terms agreed on for the maintenance or defeasance of the security, if no right of seizure follows a breach, and the stipulations do not contravene the provisions of the Act. It has, indeed, been held that the insertion of terms agreed to by the parties for maintaining the security, but which are not necessarj' for its maintenance, will not avoid the deed if power is not given to seize for a default in the performance of such terms. l"^' But the parties cannot insert agreed terms unless they are for che maintenance or defeasance of the security,'''' and if a stipulation is not necessary for the maintenance of the security it cannot be made so by agreement of the parties.''' Maintenance of the security appears to mean, not the maintenance of a sufficient security less than that agreed to be given, but the maintenance of the security created by the (a) Parsons f. Brand, 25 Q. B. D. 110. (h) MeMUo V. Stringer, 13 Q. B. D. 392 ; 53 L. J. Q. B. 482 ; 32 W. R. 890 ; 50 L. T. Tli. (c) Topley v. Corsbie, 20 Q. B. D. 350; 57 L. J. Q. B. 271 ; 58 L. T. 342 ; 36 "W. R. 352. {d) Blaiberg v. Beckett, 18 Q. B. D. 96; 35 W. B. 34; 56 L. J. Q. B. 35; 55 L. T. 876. (e) Furber v. Cobb, 18 Q. B. D. 494; 56 L. T. 6S9 ; 35 W. R. 398; 56 L. J. Q. B. 273. rilK HILLS OF SALI-; ACT (1878) AMENUMKNT ACT, 1H82. ItJl SeC. 9. [1882.1 bill of Hale, uiid this is inaiiitaiiiL'd only when the Hubjeet matter of the charKe uud the ^^rantee'H title to it are preserved in as good a condition as at the date of the bill of sale. '•' What is meant by the term " defeaeance of the security" is in striftness a eonditio!i in the nature of a defeasance, that is, something which defeats the opi'ration of the deed."' But though some provisions for the maintenance of the security may, in consequence of the general law applicable to contracts, not be capable of enforcement, their mere intro- duction will not necessarily invalidate the deed, unless contrary to some express provision of the Act, though they may be invalid and superfluous.''' Nor will the deed be avoided by mere verbal deviations from the statutory form which do not alter its legal effect ; thus a bill of sale has been supported containing recitals, referring to the parties as mortgagor and mortgagee, anil omitting the words " by way of security," the recitals shewing that to have been the object of the deed.'*" A grantor cannot, however, convey or assign as beneficial owner, the introduction of those words being an attempt to incorporate the covenants in sec. 7 Conveyancing Act, 1881, including the covenant for quiet enjoyment contained in that section, which is inconsistent with sec. 13 of the amendment Act.i" If a bill of sale contains two sets of clauses which, even if ^^'''f"'"'|y '" producing the same legal result, are expressed in different words, so as to make their interpretation a puzzle to any one who reads them, they make the bill of sale invalid, as i)eing calculated to mislead ; as for instance where powers of seizure are given wider than permitted by sec. 7, and are then attempted to be limited by the statutory proviso.'-'^' And the result will be the same if the agreements are .so ambiguous as to be misleading ; thus a bill of sale was avoided which contained terms for ])aymeiit of principal, including the interest then due, by etjual weekly payments, and from and (a) Furbor c. Cobb, 18 Q. B. D. 4M ; 58 U. T. 681) ; Ar, W. H. Mils ; 5ti I,. J. Q. H. 2 7b. (6) Blaiborg v. BockcU, 18 Q. B. D. U« ; 35 \V. ». :U ; 5t> L. .1. Q. B. 35 j 66 L. T. 876. (f) Exp. Otflcial Receiver, re Murritl. 18 Q. B. D. 22J ; ,35 \V. K. 277; 60 L. J. g. B. 130; 50 L. T. a. id) Robert* r. Roberts, 13 Q. B. D. 701. (•) Exp. Stanford, rr Biirber, 17 Q. B. D. 250. (/) Furl>er r. Cobb, Is g. B. 0. Utl. Sec. 9. 162 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.] after default, to pay specified interest on the principal by monthly payments as the principal money became due.''"'' But a bill of sale must be construed in the same manner as any other document/*' and is not necessarily misleading because different tribunals fail to agree in the construction to be given to it;'"^' and if the scheduled form is filled up according to the instructions given in the brackets, then the bill of sale is in accordance with the form, whatever may be the construction to be put upon it.''^' Nor can covenants be inserted to perform stipulations not apparent on the face of the deed — for example, to perform the covenants in a deed recited by the bill of sale;'''' or to pay interest on mortgages affecting the premises where the goods assigned then were, or to which they might be removed, even though no right of seizure is given on breach.''^'' And the deed must shew the true agreement between the parties, and should not be dependent for its real effect on some other document ; thus, a bill of sale given under and subject to a contract for payment of compound interest was held void through embodying only such part of the bargain as could properly be included in a bill of sale.*"' Defeasance of ];^ j^g^g ^i^^ been decided that if a bill of sale, proper in form, the security. . . is accompanied by another document containing clauses not allowed by the Acts, and the whole conditions of the transac- tion are to be gathered from the effect of the two documents, the bill of sale is void ; as where with a bill of sale to secure £200, payable by instalments, was given a promissory note for £280, also payable by instalments, providing that on failure to pay any instalment, the whole balance should at once become due;'*' although it would seem that this decision is best supported under sec. 10, sub-sec. 3 of the principal Act."'' A (a) Curtis v. National Bank of Wales, .5 T. L. R. 338, (i) Weardale Coal and Iron Co. v. Hodson [1894] ; 1 Q. B. 598; 42 W. R. 484 ; dii L. J. Q. B. 391 ; 70 L. T. 632. (e) Hazlewood v. Consolidated Credit Co. 63 L. T. 71 j 25 Q. B. D. *555 ; 39 W. R. 54 ; 60 L. J. Q. B. 12. (d) Edwards v. Marston [1891] 1 Q. B. 228, per Lord Esher, M. R. (e) Lee V. Barnes, 17 Q. B. D. 77 ; 34 W. R. 040. (/) Watson V. Strickland, 19 Q. B. D. 391 ; 30 W. R. 769 ; 56 L. J. Q. B. .594. 0/) Sharp V. McHenry, 38 Ch. D. 427 ; 57 L. J. Ch. 9G1 ; 57 L. T. 606. (A) Simpson v. Charing Cross Bank, 34 \V. H. 568. (i) Counsell v. London & Westminster Loan &c., Co., 19 Q. B. D. 512 ; 36 W. R. 53; 56 L. J. Q. B. 622. TH H lULLS OF SALK ACT (1878) AMENDMENT ACT, 1882. 163 See. 9. [1882.' promissory note so givon iij not avoidi-d, and the amount secured by it may be recovered, even though the bill of sale is field void.'"' One I'haracteristic of the forin i.s that the name of the grantee must be given, l)ut no particular de.scrij)tion is enforced by the Act ; and if the luiine or description inserted is such as, without the aid of extrinsic evidence, would in the case of any mercantile instrument be sufficient, the bill of sale is not avoided by reason of some ambiguity in the des- cription of the grantee.'*' Hut the section deals only with the form of the bill of sale ; thus though the foi-m provides for statement of con- sideration, and for the insertion of agreements for defeasance of the .s(!curity, an untrue statement of consideration or, it seems, the omission of a condition, would not make a bill of sale, otherwise regular, not in accordance with the form.*'* As the form provides for payment to the person in whose Parties, favour the bill of sale is made, altliough it seems the security may be given for a joint loan, and perhaps to a trustee, a bill of sale was held not to be in accordance with the form when made between the grantor and four sets of mortgagees, to •ecure different sums owing to each, and a further advance by them all, the grantor covenanting sc]mrately with each mort- gagee to pay on demand the sum owing to each, power being given to the mortgagees to sell and repay all money owing if default should be made in payment of any sum secured, or if any other default or event mentioned as a cause of seizure in sec. 7 of the amendment Act should be made or happen.'"" But it seems that a bill of sale may be given by the legal owner of goods without the concurrence of the person equit- ably or beneficially entitled, and the legal owner has been held the true owner within the meaning of section 5 of the amend- ment Act.''' An essential condition of the deed is u present assignment De»tnption of c J \ 1 p n :> •• 1 • chattolB oi goods capable ot specinc description and present assign- assifrnetl. and it is contrary to the nature of interest to make it payable before it is due because a condition has not been performed or a certain event has happened." The Court also decided the bill of sale to be void as enabling the grantee to seize the goods, upon failure to comply with a verbal demand for receipts for rent, rates and taxes, which stipulation was im- pliedly forbidden by sec. 7, sub-sec. 4, Fry, L. J., observing : '' It is said that this is a covenant necessary for maintaining the security, but a covenant cannot be valid if it is prohibited by the Legi.slature ; and this covenant alters that relation between the parties which the law intended to allow."'''' (a) Blankenstein i-.-Uobertson. 24 Q. B. D. 543 ; 59 L. .T. Q. B. 315. (b) Dresser v. Townsend, 81 L. T. J. 230. (e) Davis c. Burton, 11 Q. B. D.537. THE RILLS (IF SAI.K ACT (1R78) AMENDMENT ACT. 1882. 107 See. 9. 1882] It appears therefore tliat if powers of seizure are iriveii for J'owcrh of • ' "^ All ■ciiiiro. ranses not specified in sec. 7 of the amendment Act, whether j^iven directly, or by acceleration of j)ayment of the sum secured on breach of covenant, the bill of sale will be void.'"' So the following bill of sal(^ was decided to be contrary to the form in the schedule: — In consideration of a sum paid, and £10 bonus, the grantor assigned chattels by way of mortgage, agreeing forthwith to pay the sum secured, being the money paid, and bonus, with interest at 5 per cent., costs, and other payments — the receijjts for which were to be delivered to the grantee. There was a ])ower of seizure on default, or if the grantor should do or suffer anything where- by he should render himself liable to become a bankrupt, or remove or suffer the chattels to be removed from the premi.ses, or if execution should be, or should have been* levied against his gctods, the expen.ses of entry and seizure, with a fee of 5 per cent, on the amount then due, to be added to the sum secured; the deed also containing clauses for further advances, concluding with a proviso in the statutory form — the Chief Judge held, having regard to the bonus and powers to seize in events other than those specified in sec. 7, that the bill of sale was void, and that its defects were not cured by the final proviso.'*' Certainty in the sum secured and in the rateable interest '''""*"'' P»y- reserved is thus eseeiitial. So also is certainty in the time of payment, for as the form in the schedule provides for stipulated times or time of payment, payment on demand is inadmissible ;'" or within a stipulated time after demand in writing, not to be made before a specified time ;'''' and so is payment 24 or 48 hours after demand ;•'' although the time for payment may be fixed by reference to any known event, or may perhaps include a time to be ascertained by the happening of a contin- gency, but not to depend on the mere choice and volition of the holder of the bill of sale.*^ A bill of sale dated 5th January. 1887, containing a covenant for ])ayment by ecpial (•) Ilarr c. KinK«ford, 60 L. T. 861. (») JiTp. Pearce, re Williams, 25 Ch. D. «66 : lit I-. T. 475 , t3 L. J. C»i. 6llO ; :ill of .siilc was held not to foiiinlv with the toriii wlien ijiven in con.sideration of the j^rautee Iiavin^ at the grantor s recjuest l)eeonie guarantee and signed a proinis.sory note, the j^rantor a-s-sii^iiin^ chattel.s as security lor any moneys whieli the grantee might be called upon to pay with interest, agreeing that he would pay the grantee any sums as aforesaid, with interest then due by monthly payments of £2 on the first of every month ; for it might lie that the grantee would never have to jmy, and if he had t)oth amount and time of payment were uncertain.'"' As many cases involve the (juestion whether clauses ob- jjgfg^^,^„pp„j jccted to are for the maintenance or defeasance of the security socunty. it becomes necessary to summarise the decisions, bearing in mind the principles already dealt with. An agreement has been held reasonable and necessary for maintaining the security whereby the grantor agreed to pay all premiums for insuring and kee])ing insured the chattels against loss or damage by fire, and forthwith after every pay- ment in respect of such insurance to produce,"" and if required, deliver to the mortgagee the receipt or voucher for the same, the Court remarking that for payment of premiums a more stringent covenant than for payment of rent might reasonably be required. *■' So al.so a l)ill of sale was supported which per. mitted entiy if the grantor should not, without reasonable fjxcuse, upon demand in writing by the mortgagee, produce to him, among.st other things, the policy of insurance or the receipt for the current premium.'*" Nor, is a bill of sale void because it contains a covenant by the grantor to insure, and in default, that premiums paid under its powers by the mortgagee shall on demand be repaid Ijy the grantor with interest, and until repayment shall be a charge on the mortgaged property ;''' and a bill of sale was upheld empower- ing the mortgagee on the mortgagor's default to pay all premiums, and to pay rent, rates, taxes, charges, assessments and outgoings which might become due and j)ayable in respect of the premises in which the chattels might be, providing that all payments so made, together with interest at a named rate, should l)e a charge on the assigned chattels which should not (< used in the ordinary course of husincws arc excepted by .see. I of the principal .\tt I'lom the definition of bill of sale. Hut, as passed, the Hills of Sale Act, 1890, did not purport to exclude instruments of the class mentioned from the opera- tion of the Acts, and only provided that they should not be deemed bills of sale within section 9 of the amendment Act. To remedy this defect the Bills of Sale Act, 1891, was passed on the "ilst July, 1891, amending section 1 of the Act of 1890, and the excepted instrunient.s are no longer to be deemed bills of .sale.'"' By sec. 2, Bills of Sale Act, 1890, nothing in the Act is to affect the operation of the reputed ownership clause of the IJankruptcy Act. 10. (1882.) The execution of every bill of sale by Attestation the <,'riLutor shall be attested by one or more credible witness or witnesses, not being a party or parties thereto. So much of section ten of the principal Act as requires that the execution of every bill of sale shall be attested by a solicitor of the Supreme Court, and that the attestation shall state that before the execution of the bill of sale the effect thereof has been explained to the grantor by the attesting witness, is hereby repealed. Before the Bills of Sale Act, 1878, attestation was not necessary,''*'' but by sec. 8 of the amendment Act a bill of sale is void nnless duly attested ; which means in the manner recpiired by the Act and form ; thus the name, address and description of the witness or witnesses must appear on the face of the instrument.''' The rei)ealed first sub-section of sec. 10 of the Bills of Sale Act, 1878, introduced the formality of attestation by a solicitor, and required him to state in the attestation clause that he had explained the bill of sale to the grantor. In practice the presence of a solicitor was some guarantee to the genuine character of the transaction, and the object of the Legislature in aboli.shiug such a sanction is not (a) Section 1 Bills of Sale Act, 1800, will be found in the Appendix, pftRC 261. (A) Deffell p. Miles, 1.5 L. T. N. S. 20.3. (r) I'arsons r. Brand, 25 Q. B. D. 110. K 2 Sec. 10. 176 THE BILLS OF SALE ACTS, 1878 AND 1882. [1882.] Sec. 10. ^6ry clear, uor can the substitution of a credible witness be [1878.] deemed altogether satisfactory. The words " credible witness " in the 5th section of the Statute of Frauds were held to mean such persons as were not disqualified by mental imbecility, interest, or crime, from giving testimony in a court of justice ; and as incompetency from crime or interest is abolished by 6 & 7 Vic. c. 85, it would appear that all persons of sane mind are credible witnesses. If, on the other hand, the literal meaning of the words is adopted considerable confusion must arise, for it is undoubtedly the province of the tribunal having Cognizance of the cause, to determine whether the witnesses are credible, from their demeanour and other circumstances. Before the provision in the section, it had been decided that a party to a bill of sale could not be an attesting witness.'"' The repeal of sub-sec. 1 of sec. 10 of the principal Act would seem limited to bills of sale to which the amendment Act applies.'*' Bills of sale given otherwise than by way of security for the payment of money, should still therefore be attested with the formalities prescribed by the principal Act.'" registering and 10- (1878.) A bill of Sale shall be attested and i;"||i^°° '''"^ registered under this Act in the following manner : (1.) The execution of every bill of sale shall be attested by a solicitor of the Supreme Court, and the attestation shall state that before the execution of the bill of sale the effect thereof has been explained to the grantor by the attesting solicitor. '■" This sub-section is repealed by sec. 10 of the amendment Act, but the repeal would seem to be qualified by sec. 3 ;''' and bills of sale given otherwise than to secure the payment of money still require attestation in the prescribed manner.'-''* (o) Seal V. Claridge, 7 Q. B. D. 516. , (6) Swift V. Pannell, 24 Ch. D. 210. (c) Casson v. Churchlej', 53 L. J. Q. B. 335 ; 50 L. T. 568. (d) The following is suggested as a form of attestion : — Signed, sealed and delivered by the said grantor, A. B., in my presence ; the effect of the above-written bill of sale having been explained to the said grantor before his execution thereof, by me, the attesting solicitor. C. D., (Address), A Solicitor of the Supreme Court of Judicature. (e) Swift V. Pannell, 24 Ch. D. 210. (/) Casson v. Churchley 53 L. J. Q. B. 335. THK HILLS OF SALK ACT, 1878. 177 See. 10. (1878.1 As to thi.K class of l)ills of sale, the siih-set'tion is to bo read as included in and iiir()rj)orated with sec. 8 of the principal Act; therefore, unless the prescribed form of attestation is followed, Buch bills of sale will be invalid against the persons named in the latter section, but valid as lietween the jjrantor and p^antee.'"' It is, however, only required that the attestation clause should state that the effect of the deed has been explained by the .solicitor; thus, that the gnintor has been fully informed of the nature and effect of the bill of sale, was held sufficient,'*' and it is not necessary by the section that the explanation sliould in fact have been given ; indeed, if such explanation was necessary, .sec. 8 of the principal Act does not make the bill of sale void against any one by reason of the omission ; but it would seem that a .solicitor attesting that he had given an explanation, where in fact he had not done so, would be liable to be struck off the rolls."' The provisions as to attestation and explanation of bills Attestation by 1 ' Solicitor, of .sale by a .solicitor were inserted not merely for the grantor's benefit but for the protection of creditors, as a guarantee of the genuine character of the transaction and as a security against fraud."" Before the amendment introduced by this sub-section the law interfered to protect a person who had l>y misplaced con- fidence been induced to sign a document by which he was injuriously affected ; thus, where a mortgagor, a man in humble circumstances and without legal advice, conveyed the mortgaged pn)))crty to his solicitor, it was held that the deed was invalid, unless all the circumstances had been ex})lained to the mortgagor, and that the oinis of proving this rested on the solicitor.'*' And where a money lender advertised loans on easy terms, at five per cent., but charged more than cent, per cent, in the bill of sale, the borrower's denial of any knowledge of an increase in the rate of interest was said to throw on the bill of sale holder the onus of showing that he had clearly explained to the borrower the terms on which the loan was made. '^' (o) Davis r. Goodman, 49 L. .(. C. P. 344. (A) CorkhiU r. Lambert, 70 L. T. J. 46. (r) Exp. National .Mcroantilo Bank, rr Haynen, 28 W. R. *»8 ; Hill r. Kirk. wcK)d, 28 W. R. .358. ((/) DaviH r. Goodman, 49 L. .1. »'. V. 34-t. (f) Precs r. Coke, L. R. 6 ("li. 0-J5. (/) Moorhouse v. Woolfo, 40 h. T. 374 ; ./. Helsham r. Bamett, 21 W. R. V», Sec. 10. 178 THE BILLS OF SALE ACT, 1878. [1878.] It would seem immaterial that the attestation is by an uncertificated solicitor.'"' and a bill of sale was held sufficiently attested within the meaning of the sub-section, although the attesting solicitor did not practise on his own account and was managing clerk of the solicitors who acted generally for the grantee.'*' Indeed, the Act does not seem to require the presence of an independent solicitor, thus the solicitor for the grantee, who had prepared the bill of sale, may attest it,'""' and the attestation of a solicitor acting for both parties was held sufficient.'''' It was, however, held by the (^ourt of Appeal, affirming the decision of Huddleston, B., that a party to the deed could not attest it, and therefore attestation of a bill of sale by the grantee, although a solicitor, was invalid.'" The principle of this decision has been adopted in sec. 10 of the amendment Act, which provides that a party to the bill of sale shall not be an attesting witness. rf^biUof"a?e (^•) *^^cli bill, with every schedule or inventory thereto annexed or therein referred to, and also a true copy of such bill and of every such schedule or inventory, and of every attestation of the execution of such bill of sale, together with an affidavit of the time of such bill of sale being made or given, (1) Page 179. ^^^ Qf ^^g ^^q execution and attestatioUj^^) and a description of the residence and . occupation of the person making or giving the same (or in case the same is made or given by any person under or in execution of any process, then a description of the residence and occupation of the person against whom such process issued), and of (2) Page 181. every attesting witness to such bill of sale,^^) shall be presented to and the said copy and affidavit shall be filed with the registrar («) Holgale I'. Slight, 21 L. J. Q. B. 74; 2 L. M. & P. 662. (6) Hill V. Kirkvrood, 28 W. R. 358. (c) Penwarden v. Roberts, 30 W. R. 427 ; 46 L. T. 161 ; 51 L. J. Q. B. 312 : 9 Q. B. D. 137. (d) Vernon v. Cooke, 49 L. J. C. P. 767. (e) Seal V. Claridge, 7 Q. B. D. 516. THK lUM-S ()K SAI-K ACT, 1878. 17!» See. 10. [1878.1 within scvt'ii clt'Mr . McHnttie, rr Wot>d, 10 Cli. D. .398. (d) Laml) V. Bnice, 46 L. ,1. Q. B. 538 ; 24 W. R. Mo ; 36 L. T. 425. (f) Elliott r. Freeman, 7 L. T. X. S. 716. . (/) HollingBWorth p. White, 10 W. R. 610. (,i;) Dar\-ill v. Terry, H H. A N.8<)7 ; 30 L. .1. Kx. 335. (A) Lamb r. Bruce, 36 L. T. 425. (i) Melville r. StnuKer. 12 Q. B. D. 132. Sec. 10. 180 THE BILLS OF SALE ACT, 1878. [1878.] section treated the schedule as something distinct from the bill of sale, and the catalogue being only referred to in the schedule, and not in the bill of sale itself, did not require registration.'"' The affidavit, which should comply with the provisions of the rules'" must be filed at the same time as the bill of sale,'*"' and state the due execution and attestation of the bill of sale in the prescribed manner, but it is not an objection that the deponent speaks only to his belief.''" But if the affidavit is by reason of a material omission incomplete on the face of it, registration has been held defective, as, for example, where the Commissioner's name was not signed to the jurat, the Court, holding that the powers given by O. XXXVIII., R. 14, to receive irregular affidavits did not cure the defect.''* Affidavit of Questions have arisen under sub-sec. 1 of this section as to the sufficiency of the affidavit of due attestation under the principal Act, and it has been held that it must state from the knowledge of the person who made the oath, that the bill of sale was executed by the grantor in the presence of the person attesting its execution, nor is it sufficient to verify his signature to the attestation clause ; thus, an affidavit was held insufficient in which the deponent stated that he was present and saw the grantor execute the bill of sale, the effect thereof having been first explained to him by the person, whose handwriting he verified, as it did not swea that the solicitor was present when the l)ill of sale was executed. >-'^' And so was a similar affidavit, which stated in addition that the deponent was one of the attesting witnesses, and that the name of the solicitor set and subscribed as the other witness attesting the execution was in his handwriting. ''' It was not, however, necessary in so many words to state that the solicitor attested, and it was sufficient if this could be inferred from the whole affidavit ;'*' and it was held that the (a) Davidson v. Carlton Bank [1893], 1 Q. B. 82. (i) See notes to sec. 17 (1878). (c) Grindell v. Brendon, 6 C. B. N. S. 698 ; 28 L. J. C. P. 333 ; 7 W. R. 579. (d Roe V. Bradshaw, L, R. 1 Ex. 106 ; 35 L. J. Ex. 71 ; 14 W. R. 284 ; 14 L. T. 641. (e) Brown v. London & County Advance Co., 5 T. L. R. 199. (/) Ford V. Kettle, 9 Q. B. D. 139 ; 30 W. R. 741 ; 46 L. T. 667 ; 51 L. J. Q. B. 558 ; Sharpe v. Birch, 8 Q. B. D. HI ; 51 L. .7. Q. B. 6-t ; 45 L. T. 760 ; 30 W. R. 428. iff) Exp. Knightley, re Moulson, 30 W. R. 844 ; 46 L. T. 776 ; 51 L. .1. Ch. 823. (A) Yates v. Ashcroft, 47 L. T. 337; 31 W. R. 156. TUK UILI.S OF SALK ACT, 187H. IKl See 10. 118781 whole affidiivit inij^ht 1)0 read together, in ordt-r to collici proof of duo i!Xt'cution mid attL'stution ; thus althoiijfh an atlidavit of execution did not in terms stat(! that the attcHting solicitor was j)reseut when the liill of sah- was executed. Ijut did state tliat the deponent was j)resent, and that the l)ill (if sale was duly attested, and that he and the attesting solicitor were the only attesting witnesses, verifying the handwriting and giving the proper description of the parties, it was held sufficient. "' In Diie of the first cases under the principal Act. it was held sufficient to depose to an attestation clause stating that the hill of sale had heen explained to the grantnr without repeating the statement in the affidavit;'*' and sulisequently it was decided that the affidavit need not state ' that any ex- ))lanati()n had heen given. ''' An affidavit of execution l)y the attesting solicitor under the principal Act was not invalid ])ecause sworn hefore his Ijartner;'"" hut now no affidavit is sufficient if sworn hefore the solicitor acting for the party on whose belialf tlie affidavit is to he used, or any agent or correspondent of such solicitor ; and any affidavit which would he insufficient if sworn before the solicitor himself, will he insufficient if sworn hefore his clerk or partner.''' Unless it is shewn that the person hefore whom the affidavit purports to be sworn had not jurisdiction, the Court will presume that he had;'-'' thus, where the person hefore whom the affidavit was sworn, omitted in the jurat to describe himself as a commissioner, the Court of Appeal, in the absence of j)roof that he was not a commissiouei'. admitted the affidavit not\viihst;mdiiig the omission.'"' (2) The affidavit must contain such a description of the Descripiion residence and occupation of the grantor at the time of regis- att«HUnK"^ ''°* tering the bill of sale,'*' that creditors and others interested ^'*"'^*''* may know that the person giving the bill of sale is the person with whom they have been dealing; in fact, the description must be such as to enable the party to make such investiga- (a) Cooper r. Zeffert, 32 W. R. 402. (4) Exp. Civrtor, re Threappleton. 12 Ch. D. 9()8. (e) Exp. Bollnnd, re Roper, 21 Ch. D. 543. (rf) Vernon r. Cooke, 49 L. J. C. P. 7«7. (<•) R. 8. C, 1883, O. xxxviii, IB, 17. (/•) Chem-v r. Courtois 32 L. J. C. P. IIH; 13 C. B. N. S. h;<1: l» .liir. N. 8. 1057; 7 L. T. N. S. »W0. (■7) Exp. .Johnson, re Chapman, 28 Ch. D. 338. (A) ButU.n l: O'Neill. 4 C. P. D. 354 ; 48 L. J. C. P. 3«W ; 27 W. R. .192 : 4<) L. T. 799. ThiH CHHO overrulei* on thi« point London & Wotttminnter Loan Co. c. Cha««, 10 W. R. 698; 12 C. B. N. S. 7.30; and the aulhoriticH deoitlintf that tho dwicrip tion required is that at tho time of making or tfivini; the hill of ftalc. Sec. 10. 182 THE BILLS OF SALE ACT, 1878. 11878. i tions as would be necessary for his protection before he either advanced money or supplied goods on credit.*"' When Ijetween the execution of the bill of sale and the date of registration the grantor absconded, it was held to be sufficient to describe his residence as given in the bill of sale.'*' The object in requiring a description of the residence and occupation of the attesting witness is, that any person having an interest in making inquiries as to the goods of another with whom he is about to deal, or to issue or act upon process of execution against them, should be able to apply to the attesting witness for information for the purpose of making any necessai-y inquiries to guide his conduct;''"' and that in- formation, it is intended, should be furnished to him by the affidavit, coupled, in case of any ambiguity, with the copy bill of sale, to which the inquirer also has access. A description ought to be held svifficient if an ordinary person, by ordinary inquiry and the exercise of ordinary intelligence, can ascertain where he will find the object of his search.*'" ttf'*''ffid^°^t"' Such description of the residence and occupation of the grantor and attesting witness must be given in the affidavit either expressly or by direct reference to the bill of sale verifying the description there given; nor did the principal Act require that the bill of sale itself should contain any description, though it has been decided under the amendment Act that a bill of sale to be in accordance with the form in the schedule, must state in the attestation clause on the face the instrument the name, address, and description of the attesting witness or witnesses/''' The .section it will be observed requires that an affidavit of the description of the residence and occupation of the person making or giving the bill of sale, and of every attest- ing witness, should be filed together with the bill of sale ; and where with a bill of sale containing a jn-oper description was filed an affidavit stating the time when the bill of sale was made, but silent as to any description of the grantor or attesting witness, it was held that the section was not com- plied with ; '•''' although if the affidavit states the bill of sale (a) .Ione.s i: Harris, L. R. 7 Q. B. 1.57 ; 41 L. J. Q. B. 6 ; 20 W. R. 143 25 L. T. 702 ; Murray c. Mackenzie, L. R. 10 C. P. 625 ; 23 W. R. 595 ; 32 L. T. 777. (6) Jixp. Kahen, re Hewer, 4« L. T. 856. (c) Laml) D. Bruce, 45 L. .1. Q. B. 538 ; 24 W. R. 645 ; 35 L. T. 425. (y reference to the l)ill of sale;'""' and so. where an attesting witness was insufficiently descrilK-d in his affidavit, the description was allowed to be supplemented by that contained in the attestation clause of the liili of sale which had l)een verified by the affidavit;'*' indeed it would seem that under the Act of 18i)4 the affidavit was sufficient if, on comparison with the bill of sale, it appeared to have been imide i)y the attesting witness, although not expressly stating that the deponent was the attesting witness."" Where the affidavit ga\e a sufficient description of the witness in the introductory part, but the description was left blank in the body of the affidavit, registration was supported l)y the Q'^^'*^'"'"* Uench Division; North, , I., holding that a description in the introductory part was sufficient, and Manisty. ,1., decitling on the ground that the attestation clause, which properly described the witness, was incorporated with the affidavit by which it was verified. '■'^ If, however, the description in the affichivit is not merely insufficient, but untrue or mis-stated, the defect cannot be (o) Fouljfcr r. Tnylor, 6 H. & N. ai2 ; 29 L. J. Kx. 1.54 -. 1 L. T. N. S. 67 ; Bun- liiiry r. White. 2 H." Jt C. 3tX); Sltidden r. Serjeiint, 1 K. A F. 323. (6) I'i<-knnl c. Bretz, 5 H. A N. 9; 29 L.J. Kx. IS; H W. R. 9t); 1 I-. T.N. .S. 4.5. (r) Jones r. Hnni.H, U R. 7 Q. H. 1.57: Thorpe r. Hrown. L. R. 2 H. L. 220; 15 \V. R. IIW. (J) Exp. Mackenzie, re Bent, 42 L. J. Uiink 2,5 ; 28 L. T. W«. (e) Roiith r. Houblot, 1 E. i K. S.5() ; 2« L. J. Q. H. 24<>. (/) BlililiorK r. I'rtrkc, 10 Q. B. D. 9«) ; 31 W. R. 24« : .52 1,. J. Q . H. 1 10 ; 4m L. T. 311 ; und «-■ Blaokwell r. EnKliuid. H K. * B. 5U ; 27 1,. J. y. B. 121. Sec. 10. 184 THE BILLS OF SALE ACT, 1878. [1878.] cured by reference to the bill of sale, and so it was held where, in the attestation clause, the witness subscribed himself clerk to a solicitor, but in the affidavit was described as a gentleman.'"' Kesidence. The residence to be described is the place where a person resides at the time of registering the bill of sale, which, for the purposes of the section, is the place where he is most I \ likely to be found; thus, it may be his place of business ; '*' or, \|if a clerk, his emplo yer's place of bus iueaa. '''' If the attesting wwitness is described as of his employer's address where he is personally employed, where anybody can find him and make inquiries, such address is sufficient, though it would probably be otherwise if he was never to be found there.'"" The par- ticularity required in the description is a question of degree, depending on the circumstances of the case,'*' the object being the identification of the parties ; thus, in some cases probably the street and even the number of the house would be necessary ; and a mis-statement of the number, calculated to mislead, has been held fatal. '-^^ The description "of the City of Cork," has been held too general, '«'' but where a witness was described as of Hanley,in the County of Stafford, it being proved that hundreds of letters had reached the witness with the address of Hanley alone, it was held that the description was sufficient.'*' So the description "A. B., Clerk to C. D., Aldershot," was upheld, it being proved that letters addressed "A. B.,Aldershot," reached him through the post.'*' Bacon, V.-C. is reported to have held that if a person has two residences, both should be described ; but the decision appears to have turned on the facts of the case, in which the grantor was a railway contractor, engaged at the time in the construction of a railway at Bury, in Lancashire, with business chambers at Westminster, and a private residence at Kilburn. The Vice-Chancellor held insufficient the description of the (a) Brodrick r. Scale, L. R. 6 C. P. 98 ; 40 L. J. C. P. 130 19 W. R. 386 ; 23 L. T. 864 ; Murray c. Mackenzie, L. R. 10 C. P. 625. (6) Hewer v. Cox, 30 L. J. Q. B. 73 ; 9 W. R. 143 ; 6 Jur. N. S. 1339 ; 3 L. T. 508. (c) Attenborough i: Thompson, 2 H. & N. 559 ; 27 L. J. Ex. 23 ; Blackwell r. England, 8 E. & B. 541. (rf) Simmons v. Woodward (1892), A. C. 100. (e) Briggs r. Boss, L. R. 3 Q. B. 270 ; 37 L. J. Q. B. 101 ; 16 W. R. 480 ; Gardner V. Smart, 1 Cal). & El. 14. (/) Murray v. Mackenzie, L. R. 10 C. P. 625. ig) He Hams, 10 Ir. Ch. 100 ; 1 L. T. N. S. 467. (A) Briggs V. Boss, L. R. 3 Q. B. 270. (i) Hickley c. Greenwood, 59 L. T. 137. TUK HILLS OK SALK ACT, 1H7H. 185 ggc. 10. 1878. ] gniiitor as " rt'sidin^ ui No. 1, Wcstmiiisti-r ( 'hiUMl>i'i>, Victoria Street, in the County ol' Middlesex, Riiilway Contra<'tor."'"' In another case, in wliicli tlie description was ii|>liild, iln- Refwlonco. proprietor of a travelling cireus. then at Southampton, ^ave a i)ill of sale over his eireus property, deseiiliin^ himself as of a London adf the witness's occupation,'*' but where the grantor of a l)ill of sale, described us an uccountant, was u clerk in tlie accountant's de- partment at the Euston Station of the London and North - W«'stern Railway, and in liis leisure time was occasionally employed to bulunce tradesmen's l)ooks, tlie descrij)tion wa.s held insufficient. '*■' But the Act does not require that in the description of Occupation, occupation details should be given of every way in whicli the grantor may occupy himself, or of every undertaking involving a liability in which he is interested; thus a griintor. who led the life of a country gentleman, occupying himself in the ordiiuxry avocations of country life, and was a sleeping partner in several businesses, in none of which he took an active part, though his name appeared in connection with some of them, was held sufficiently described as of Kings- down House, Sittingbourne, in the county of Kent, a gentle- man, of no occupation.''" And so a woman who carried on h farm which had l)eU)nged to her deceased husband, merely as his executrix, and not with a view to taking ])ermanently to it, and hiwi no other occuj)ation, was held sufficiently described as a widow.''' And it was held unnecessary to describe as of any occupation a married woman who was the leaseholder of a public house, the licence for which was taken out in her husband's name, he conducting the business.*^"' In another case, the grantor was described as a widow, about to remove to a hotel named in the bill of .sale. It appeared that she had been a licensed victualler for several years until about a month previous. (1. (g) SimmoHH r. Wixxlward [1892], A. C. 100. (A) Monson v. Milncr, 8 T. L. R. +17. Sec. 10. 190 THE BILLS OF SALE ACT, 1878. [1878.] statement of the grantor's christian name.'"' But it is other- wise if a mis-statement of christian name is coupled witli misdescription of occupation; and when the grantor of a bill of sale was described as Kendrick Turner, tutor, his name, in fact, being Frederick Henry Turner, and his occu- pation that of a schoolmaster, registration was held to be avoided.'''''' Occupation. Care should be taken to describe the occupation followed at the time of registering the bill of sale;''' for though no former or proposed occupation need, it seems, be stated,'" where the grantor was described as " until lately a commerci.il town traveller and agent," it was held that his occupation at the time of registration was not sufficiently described ; ''*' and so where the grantor, who had formerly carried on a wine, spirit and general business as sole owner under the style of a Supj;] y Association, was described as so carrying on business under such style — he in fact for some months having ceased to be owner, or to have any share in the business, where ]iv rt^mained only as paid manager under the supervision of the person whose property the business had become— the occupa- tion was held mis-described, although the licences were taken out in the grantor's name, which still appeared over the shop.'''' But if the description gives a true indication of the grantor's calling, by which he can be identified, that is a sufficient compliance, though he may not be actively following that calling at the time of registration, as, for example, the description of the grantor as contractor and financial agent, he for five years having ceased to actively carry on business;-"' or as a commercial clerk, he having for some weeks been our of employ; for the Act requires the grantor's ordinary occu- ])ation to be stated, though at the moment he may be out of employ.'*' ^^'"'f In every case the test will be, is the misdescription one iTivaiiiiates. that IS calculated to deceive creditors, '"' and the burden of (a) Downs v. Salmon, 20 Q.B.D. 775 ; 36 W. R. 810 ; 67 L. J. Oh. 454 ; 59 1.. T. 375. lb) Lee V. Turner, 20 Q. B. D. 773 ; 59 L.T. 320. (r) Button r. O'Neill, 4 C. P. D. 354. (rf) Exj}. Chapman, re Davey, 45 L. T. Z68. (e) Castle e. Downton. 5 C. P. 0. 56 : 41 L. T. 528 ; 49 L. J. C. P. 6. (/■) Cooper r. Davis, 48 L. T. 831 ; (C.A.) 32 W. R. 329. (g) Sharp c. McHenri" 38 Ch. IJ. 427. (A) Martinson c. Consolidated, .'.c, Co., 5 T. L. R. 353. (i) Exp. M'llatUe, re Wood, 10 ■ h. D. 398; 39 L, T. 373 ; 48 L. .T. Bank. 26. IHK lULLS OF SALK ACT, 187H. 11*1 See. 10. 1878. pn)of is oil th*' piTsoii st-ckiii^ to shew that the rcHidence or occupution of tin; fjniiitor or witness is othiT than dfscrilxHl." If the description is snliHtuiitiaily corrert. so that iriilitors wouhl not lie misled, an erron«!ons luldition, as of a wron^ county, will not vitiate the iiill of sale.'*' and the sufficiency of the de.scription must dep«Mid on the circumHtauccs of each OJise, and is a (piostioii for tlie .jnd^e and not for the jury."* When there are two attesting witnesses, the hill of .sale will he invalid unless hoth are descrihed iti the affidavit ; •'' but where a l)ill of .sale was executed under the common seal of a trading Company, and opjjosite the seal were set the names of two of the Directors, who jjurported to sign as Directors, and the document was countersigned by the Secre- tary, who in the affidavit of execution stated that he saw the bill of sale sesiled with the seal of the Com])any, and counter- signed l)y two of the Directors who.se signatures ai)])oared sub.scribed thereto, the affidavit was held sufficient without giving a description of the Directors whose names appeared on the bill of sale.''' If the affidavit is defective, aiijilication was under the former practice made to remove the liill of sale from the file, and for leave to file a fresh copy with amended affidavit;'-^ and under the provisions of sec. 14, any Judge of the High Court, on being .satisfied that the omissicm or mis-statement of the name, residence or occupation of any person was accidental or due to inadvertence, may, in his discretion, order such omission or mis-statement to be rectified in the manner prescribed. (3) Under the Bills of Sale Act, 18.'>4, it was optional to file Bopistmiion. the original bill of sale or a copy, and the officer could not refuse to receive the original, but by the section the co])y, and not the original, is to be filed with the registrar. It was held that the altenition or destruction of the original schedule before registration did not affect the rvgi.stration of a co|)y, (a) autton r. Bath, 27 L. .1. Kx. 388 ; 3 H. i N. 382 ; Grant r. Shaw, I,. R. 7 Q. B. 700. (6) Hewer c. Cox, 30 L. J. Q. H. 73; txp. McHattic, rr W.kkI. .TO L. T. 137. (c) Phillips r. Burt, 2 F. 4 F. 882. id) Pickiird c. Marriaire, 1 Ex. D. .S6t; FoiiIjIiukiup r. Loo, L. 11. 7 Ir. V. L. B.IO; 3 Ir. .Iiir. N. S. 224. (<■) ShearH i: .lacoli, L. R. 1. ('. P. 513 ; Doffell r. White, L. R. I C. V. \U 3 L. .1. C. P. 25; 15 W. R. es; 15 I^. T. 211. if) Re WriKht, 27 h. T. 102; re O'Brien, 10 Ir. C L. App. 33. L 2 Sec. 10. [1878.] 192 THE BILLS OF SALE ACT, 1878. iK'teasaiice, cuudition, or declaration of trust to be deemed part of liill (if sale. the property in the goods passing on the execution of the bill of sale.'"' It is not the registrar's province to inquire whether the bill of sale and aflBdavit comply with the provisions of the Act, his duties being purely ministerial.**' By sec. 41 of the Stamp Act, 1891 . 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. The absence of a proper stamp would not, however, invalidate the registration ; as under sec. 15, Stamp Act, 1891, the instrument may be stamped on payment of the unpaid duty, and the penalty therein mentioned. As by the section, coupled with sec. 8 of the amendment Act, a bill of sale shall be filed with the registrar within seven clear days after the execution thereof, it would seem that a bill of sale made or given on the first of the month will be in time if registered on the eighth, unless that day happens to be a Sunday, or other day on which the registrar's office is closed, when registration will be valid if made the following day on which the oflfice is open.'''' A bill of sale executed in any place out of England shall be registered within seven clear days after the time at which it would, in the ordinary course of post, arrive in England, if posted immediately after the execution thereof.'*" (3.) If the bill of sale is made or given subject to any defeasance or condition, or declara- tion of trust not contained in the body thereof, such defeasance, condition, or declaration shall be deemed to be part of the bill, and shall be written on the same paper or parchment therewith before the registration, and shall be truly set forth in the copy tiled under this Act therewith and as part thereof, otherwise the registration shall be void. (a) Green v. Attenboroufjh, 3 H. & C. 168 ; 34 L. .1. Ex. 8H ; 13 W. R. 185 ; 11 L. V. 513. (A) Needham v. Johnson, 8 B. & S. 190 ; 15 W. R. 346 ; 15 L. T. 467. (c) Sec. 22 (1878) ; Williams v. Burgess, 12 Ad. & E. 635. (d) Sec, 8 (1882). TMK lULLS OF SALK ACT, 1878. 193 Sec. 10. 1878-1 A defeasance is iin instrument which defejits the force or oporiition of some other deed or estate, and that which in the same deed is called a condition, when in a se|)arate deed is a defeasiincL'.'"' Conditions may he either priH-edent, suhsequent, or inher- ent ; a condition is precedent 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 where the estate is (|iialified, restrained or charj^ed ; in every case it denotes something which prejudicially affects the interest of the donee.'*' But the meaning of the defeasance or condition mentioned in the sulj-section is not, it seems, so limited, and the sub- seetion applies to any defeasance or condition in favour of either part}- ; the oliject being to avoid a bill of sale, in respect of the chattels comprised therein, if given subject to a defeasance or condition not expressed on the face of it, whether in favour of the grantor or grantee, and thus not stating the true contract between the parties, or the terms on which the chattels are redeemable '*' Before this decision it had been held, under sec. 2 of the Defeasanoe o Bills of Sale Act. ISb-i, that the defeasance, condition or """ ' "'"■ declaration of trust contemplated l)y the section was such as is usually found appended to a l)ill of sale, affecting its operation as between the grantor and grantee, by diminishing the rights of the grantee in the estate purported to be granted, or affecting them prejudicially in favour of the grantor, and did not include an independent agreement not (pialifying the rights of the grantee; and that the object of the j)rovision was to pre- vent creditors being defrauded by sham bills of sale, by which the whole interest of the grantor is apparently transferred, whereas in reality he retains some interest in the subject of the transfer.'"" So when with a registered bill of sale expressed to be nuide in consideration of jB130 to be repaid by certain instalments without interest, the whole to become payable on default in any instalment, the sum in fact luivanced being oidy £'100, the £:?0 being charged Ijy (a) Cora. Dijf. Defea«nnce. (6) Co. Litt. 201 a. (c) Eilwanls c. Marcos [1891', 1 Q. B. 5ti7 ; 70 L. T. 1h2 ; 1 Minis. 70; 63 L. J. Q. U. 383. (d) Robinson r. CoIlinKWood, 17 C. B. N. 8. 777 ; 31 L. .1. C. P. IB : l.t W. H. H| ; 10 Jur. N. S. lOeO; 11 L. T. N. 8. 313. Sec. 10 194 THE BILLS OF SALE ACT, IS'TS. [1878.] way of bonus and interest, a written memorandum was signed by the mortgagor at the same time as the bill of sale, which stated 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 right under it enforced Ijefore the expiration of the time limited for payment, want of registration of the memorandum securing a bonus to the grantee was held not to be such a defeasance or condition within the section as to affect the validity of the Ijill of sale.'"' The memorandum in that case was not in fact a condition, and the observations of James, L.J., to the effect that a condition to be within the sub-section must be something prejudicially affecting the position of the donee, are now stated to have been ohiter, and unnecessary to the decision.'*' Defeasance or condition. But a collateral arrangement respecting the application of the consideration money is not necessarily a condition or declaration of trust ; as where a grantor borrowed £290 on the understanding, which he kept, that he was thereout to pay to the lender £235 due to him on an old bill of sale of the same chattels.*''' Nor does the deposit by the grantor of a policy of insurance at the time of executing a bill of sale, by way of collateral security for the same debt, operate as a defeasance;'*** and as a debt is not defeated bj- being paid, a collateral agreement that the grantee would first resort to securities other than the bill of sale, was held not to be a defeasance, though admitted in evidence to prevent the grantee recovering on the bill of sale.'*' But when a bill of sale does not, on the face of it, express the true contract between the parties, any collateral agreement by way of defeasance, condition, or declaration of trust, whether in favour of one party or the other, will be within the sub-section. So where husband and wife, hj a bill of sale, assigned to the claimant chattels in their dwelling-house to secure £300 with simple interest, payable by instalments ; the wife, by contemporaneous deed mortgaging to the claimant her reversionary interest under a will, to secure the same ((/) Exp. Collins, re Lees ; L. R. 10 Cli. 367 ; 41 L. J. Bank. 78 ; 32 L. T. 108 ; 23 W. R. 862. (4 Edwards v. Marcus [1894], 1 Q. B. 587. (c) Thomas v. Searles [1891], 2 Q. B. 408. {d) Carpenter v. Deen, 23 Q. B. D. 666. (e) Heseltine v. Simmons [1892], 2 Q. B. 547. THE JMM.S OF SALK ACT, 1H7H. 1uud iiiti-n-st, jui^ulile l)y iiistulmentM on tlu- Hjiiiio dayH lis ineiitiomvl in thu bill of sale, both HtcuritieK bi'inj^ given uh part of the sniae transaction; it was held that the agreement in the mortgage to pay compound intcreHt woh a condition under the sub-Hcction, which beintj unregistered avoided the regiMtration of the bill of sale/"'' it was formerly doubted whether a collateral parol Defe»*»iice 111 1 r /mi. 1 orooniliiioti. .igroement could be a defeasance.'"' iJut where a person purchased household furniture, and being unable to jjay for it at the time, offered to do so by weekly instalments, which the vendor consented to accept, a bill of sale being given to secure the purchase-money, which was made payable in one sum. it was held that the antecedent parol arrange- ment to ])ay by instalments was a condition within the section, and as such should have been reduced into writing and have appeared on the registered copy of the bill of sale.'" And where with a Ijill of sale repayable by instalments the grantor contemporaneously, in respect of the same loan and as part of the same transaction, gave the grantee a promissory note for the total amount of the loan and interest payable by the same instalments as in the bill of sale, the whole sum remaining unpaid to become due on default in payment of one instalment, it was held, having regard to the identity of dates and figures, that there was only one contract embodied in the bill of sale and promissory note, and as if the amuunt of the latter were paid, either to the grantee or a third person, who might discount it, the former would have no further effect and would ho defeated, the note therefore operated as a defeasance of the bill of sale and ouglit to have been registered.'"" Nor will the fact that persons other than the grantor join in the j)romissory note alter its operation as a defciusance. •'' But the promissory note itself is not avoided, and the amount secured l)y it may be recovered.'-^ An agreement was entered into ])roviding that a deed of covenant and bill of sale should be given to secure (.1) Kdwarfis r. Miircu« 1 18W ,, 1 Q. B. 687. (i) Exp. Popplpwell re Storey, 21 t'h. D. bl. (r) Exp. Soutlmin, 43 L. J. Bank. 39; 17 Eci. 57H ; 22 \V. R. WK) ; .JO U. T. IJ2. (rf) CduiiBell r. London i Weslminstor Loan Co., 10 (J. H. H. 512. («) Onn r. Kishor, 5 T. L. R. 504. (O Monetary A between the grantor and grantee rendering the deed a con- trivance to secure the property for the grantor's benefit, or a device against the general body of his creditors, as for instance, a contract to obtain some additional advantage in the event of bankruptcy, which prevents the debtor's property being equally distributed, it will be void both at common law and as against the policy of the bankruptcy laws ; '" and a power of revocation has always been deemed a strong mark of fraud, for it virtually leaves the property in the settlor's hands : and so it has been held where an unlimited power of sale or mortgage is reserved, as shewing that the settlor did not bond fide intend to put the property out of his reach.'-''* (a) Sharp v. McHenry, 38 Ch. D. 427. (6) Robinson v. Collinf?wood, 17 C. B. N. S. 777. (c) Exp. Popplewell, re Storey, 21 Ch. D. 73. (d) Exp. Shane, re McGinity, 29 S. J. 70. (e) Exp. Mackay, re Jeavons, L. R. 8 Ch. 643 ; 43 L. J. Bank. 68 ; 28 L. T. 828 ; 1 W. R. 664. ( f ) Tarback v. Marbury, 2 Vem, 510. THE BILLS OF SALK ACT, 1878. lUl SeC. 10. 1878. J Under 3 Geo. IV. c. 39,860. •!•, in which the words iin; hoiih- what thesiirae iw in the present suctinii, it has heuii hi;Ul not to he an objection to a warrant of attorney that |>art of the defeasance wjus written on a neparate sheetof paper annexed.'"' In case two or more bills of sale are ^iveu, com- i'ri..iiiyof uiu«, prisin<^ in wliolf or in part any of the name chattels, they shall have priority in the order of date of their registratiim respectively as regards such chattels. The provisions of the section arc appliciiblu to all bills of sale whether absolute or by way of security for the payment of money.'*' , Before the amendment Act it was decided that where there are conflicting bills of sale the date of registration determines their priority ; and if one of them is uiu-egistered, the registered document will prevail, for the sub-section is of general application, and does not confer priority only as against the i)ersons named in sec. 8 of the principal Act ; thus the title of the holder of a prior unregistered bill of sale is postponed to that of a mort- gagee claiming under a subsequent dul}- registered bill of sale over the same chattels ;'''' and it is immaterial whether the grantee under the registered or unregistered instrument is in possession of the goods. *'" This rule is now modified in cases of conflict between absolute bills of sale governed by the principal Act and securities to which the amendment Act applies. For as by an absolute bill of sale the grantor parts with his whole interest in the goods, he is not the true owner at the time of giving a subsequent security over them. In such a case, sec. 5 of the amendment Act avoids the subsequent bill of sale except as against the grantor, and it does not take priority of the first deed. Thus an absolute unregistered bill of sale executed in 188") was held not to be ])ostponed to a bill of sale given in 1888 to secure payment of money, and duly registered under the amendment Act.'" Hut this is not (a) Biirdekin c. PotUir, 1 Dowl. N. S. l.Jl. (6) Tuck p. Southern CounticH Depimit Bank, 41 C. D. 471. (<•) Conelly c. Steer, 7 Q. B. D. 520 ; 46 L. T. VVi ; 20 W. H. 520 ; M L. J. Q. H. 326. ((i) Lyons c. Tucker, 7 Q. B. D. 523 ; 46 L. T. 403, reversing «. c. 6 Q. B. D. 6w essential to the validity ol l)ills of sale, which, hy see. 8 of the amendment Act, aic void in respect of the pi-isonal chattels comprised therein, unless registered, the clause would seem to ajjpl}' and confer priorityi although the second mortgagee takes his security with notice of a prior mortgage, at all events where the time for regi.stering the first hill of sale has elap.sed without registration ; and it would therefore appear that the rule laid down hy Lord Ilard- wicke in liC Neve i--. Le Neve,'""' will not he applicable. By tliat rule, a puichaser with notice of a right in another is lial)le to the same extent and in the same manner as the j)erson from whiiiii hi- made the purchase, and an estate in the hands of a sulise(|Uent purchaser or mortgagee, with notice of a prior defective mortgage, will he hound hy it. It is only when the notice is .so clearly proved as to make it fraudulent in the purchaser to take and register a convej'ance in prejudice of the known title of another, that the registered deed will he affected,^'" for a j)urchaser or mortgagee is not hound to make inquiries with a view to the discovery of unregistered instruments, though he may he hound hy actual knowledge of them.''* Subject, it may be, to sec. 5 of the amendment Act, ''"""'>' °""^''- if the grantee permits the grantor to have possession of the goods, and thus enal)les him to hold himself forth to the world as having not only the ])ossession hut the ])ro])erty in them, as when he is permitted to carry on his trade, a |)ur- chaser, in the ordinary course of business, without notice of the l)ill of sale, has been held to obtain a good title; thus, wherca farmer and dealer granted a bill of sale overall his growing crops, goods, chattels and effects, which then or thereafter should be on or about his farm and premises, and was allowed to remain (a) AV;.. PayiK-, re OnwH, U Ch. D. ».i9 ; W L. T. 'HVX , '7 W. H. »»W. (A) Exp. lilailjerjf, re Toomor, 23 Cli. D. 2.5 1. (r) Ami). W« ; 2 W. & T. h. Ch.'*os, «th cil. 2«. (rf) WyHtt r. liirwell. 10 Vcs. Vm. (e) Lee p. CUitton, Ml L. .1. Cli. l>* -. J I W. H. !>12 ; .C> I,. T. .si. Sec. 10. 200 TQE BILLS OF SALE ACT, 1878. [1878.] in possession and carry on his farm, it was held that he liad implied authority to sell the farm produce in the ordinary course of his Ijusiness, and that the bill of sale holder had no cause of action against a purchaser in good faith, and without notice;'"' and so where the grantor of a bill of sale.beinga horse dealer was by the deed authorized to hold, make use of and possess the goods comprised in it, he covenanting not to dis- pose of them without the grantee's consent in writing, a purchaser, without notice of the bill of sale, was held to have acquired a good title to a horse, included in the deed, sent by the grantor to a repository for sale by auction, in the ordinary course of his business.'*' Priority of title. But if the sale is not in the ordinary course of the grantor's business, a purchaser or person dealing with the goods, though without notice of the bill of sale, will be liable in an action of trover at the suit of the grantee — thus the auctioneer who sells them has been held responsible.'''' A grantor having given a bill of sale of her furniture to the plaintiffs, without their consent employed the defendants, a firm of auctioneers, to sell it on her behalf; and they, Avithout notice of the bill of .sale, having sold the furniture and delivered it to the purchasers, were held responsible to the plain- tiffs in trover.''" But where the grantor, without the mortgagee's knowledge, took to the defendant's repository certain horses and harness included in the bill of sale, and entered them for sale by auction, but before they were put up sold them privately in the defendant's yard, the purchase-money being paid to the defendants, who deducted their commission, handing the balance to the grantor, they were held not guilty of a conversion.^'' In another case, where the purchaser of goods by bill of sale from the sheriff per- mitted the execution debtor to continue in possession, who afterwards executed another bill of sale to another person, it was held that the first bill of sale holder was entitled to recover from the latter ; <•''' and where the jury found that the grantor sold the goods fraudulently and not in the ordinary way of his business, but that the defendants did not know this (a) National Mercantile Bank o. Hampson, 5 Q. B. D. 177 ; 49 L. J. Q. B. 480; 28 W. R. iii. (4) Walker r. Clay, 42 L. T. 369 ; 49 L. J. C. P. 660. (c) Cochrane o. Rymill, 27 W. R. 776 ; 40 L. T. 744 : ill of sale of chattels by representing that they are unincumbered, (.1) Taylor p. McKeanrl, 28 W. R. «2H; 49 L. .1. C. 1'. :>6i -. »J L. T. i*.« ; C. P. D. 3.'>8. (6) MuBgrRve v. Stevens, 1 Cub. & K. J8 ; 17 J. P. 20."). (r) .loseph r. Webb, 1 Cub. A K. 2t!J. (J) Payne v. Kern, 29 W. B. Ml ; « Q. H. D. 020 ; .io I,. .1. Q. II. tW!. (e) .losepti r. Lyons, 15 Q. B. D. 2ho. (/) Hnllns V. Robinson, 1.5 Q. U. I). 28h. Sec. 10. 202 THE BILLS OF SALE ACT, 1878. [1878.] he having in fact included them in a subsisting prior \n\\ of sale, he is guilty of an indictable false pretence.'^"'' And where the tenant of a farm sold, otherwise than in the ordinary course of business, property over which he had pre- viously given a bill of sale, but said nothing as to the ownei'- ship of the property or existence of the bill of sale, it was held that by the act of selling he represented himself as being absolute owner, and that as the purchaser had paid for the property under the belief that the grantor had authority to sell, the grantor was guilty of obtaining money by false pre- tences, unless he had the mortgagee's authority to sell, which it was for him to prove.'*' A bill of sale to secure future advances to a specified amount gave the mortgagee no priority in respect of further advances, after notice of a second mortgage, over advances made by the second mortgagee with notice of the bill of sale ; '''' but a second mortgagee in possession of the mortgaged pro^ perty, who expends money in permanently improving or pre- serving it, is not entitled, as against a first mortgagee, to any charge on the property for money so expended.''" ConeoUdation. The doctrine of consolidation does not extend to bills of sale, at least against the parties named in sec. 8 of the princi- pal Act ; and the grantee of a bill of sale of chattels seized under an execution is not entitled to tack a previous mortgage of other property of the grantor, and claim that the surplus proceeds of the chattels, after discharging the sum due under the bill of sale, shall be applied in satisfaction of the prior mortgage, so as to defeat the right of the execution creditor to such surplus/''' As between grantor and grantee, the former may, where the bill of sale is made on or after the 1st of January, 1882, if sections 2 (vi.), 17, Conveyancing Act, 1881, apply, redeem it without paying any money due under any separate l)ill of sale or mortgage on property other than that comprised in the security sought to be redeemed, unless the bills of sale or mortgages, or one of them, shew a contrary intention. (a) R. V. Meakin, 11 Cox, 270. Form of declaration against incunibrance«, p. 272. (i) R. r. Sampson, 52 L. T. 772 ; distinguishing R. r. Hazlowood, 48 J. P. 1.51. ((•) Hopkinson i'. Roll, 9 H. L. Ca. f>14; 7 Jur. N. S. 1209. (rf) Landowners, &c. Co. v. Ashford, 16 Ch. D. 411. (e) Chesworth c. Uunt, 5 C. P. D. 2Gti ; 28 W. R. 81.5 ; 10 h. J. C. P. 507 ; 12 L. T. 774. TIIK HILLS OK SALE ACT, 1878. 2ii under the original bill of sale.'" It was decided that a transfer made subsequently to 1854, by a mortgagee alone, without the concurrence of the mortgagor, of a bill of sale made before the passing of the Bills of Sale Act, 1854, did not require registration under that Act, or under the repealed Act of 1866, a.>» against the trustee under the bankruptcy of the ori- ginal mortgagor.'"" Where goods comprised iu a duly registered bill of sale were assigned bond fide, but the transfer was not registered, nor was any re-registnition of (o) Wftle r. CommissiouerH of Inland Revenue, 4 Kx. D. X70; 48 L. J. Rr. 874 ; 27 W. R. Hid ; 41 L. T. 16.1. (i) Home r. HuKhep, JO W. R. 578 i4 L. T. 678 ; 6 Q. U. U. 676. (c) Exp. Turquand, re Parker, UQ. B. D. 636 ; *J W. H. *:J7 ; .'>4 L. J. Q. H. 242; .-.3 L. T. 579. (rf) Exp. Shaw, 2."> W. R. «n« ; Mi }.. T. 805; KJ h. .1. llink. 11 I. Sec. 10. 204 THE BILLS OF SALE ACT, 1878. [1878.J the bill of sale effected, it was held, under the repealed Act of 1866, that after the expiration of five years the registration of the original bill of sale became absolutely void.'"' Transferor The assignee of a mortgagee cannot stand in a better bill of sale. position than the mortgagee himself, for every mortgagor has a right to have a reconveyance of the mortgaged property upon payment of the amount due on the mortgage, and the mortgagee is charged with the duty of reconveying upon such payment being made. Where, therefore, a mortgagee, having besides the property mortgaged, promissory notes made by the mortgagor as collateral security for the debt, transferred the mortgage without assigning the collateral securities, it was held he was not entitled to sever the debt from the security, and an injunction was granted against his proceeding to recover one of the notes pending an action instituted by the mortgagor to redeem and to settle the equities of the parties.'*' Nor can a bill of sale holder, by transferring his interest to a third party, confer a Ijetter title than he himself possesses ; '"^^ thus, where the goods of an execution debtor were assigned by inventory and receipt to a person who again assigned them, neither transaction being registered, and were then again granted by a bill of sale duly registered, remain- ing all the time in the apparent possession of the execution debtor, it was held by Grove, J. (Lopes, J., diss.), that the want of registration of the two prior assignments invalidated the title of the third assignee under the registered bill of sale.'"" But it was decided under the Act of 1854 that the purchaser from a bill of sale holder, whose security was defective, had a good title against an execution creditor of the original mort- gagor ; for the exercise of the power of sale when there was no person entitled as against the mortgagee, put an end to the bill of sale, and the A.ct did not apply.''' An assignment to trustees of debts secured by bills of sale with a direction to collect, has been said to empower the trustees to put in force in the name of the settlor, or perhaps in their own names, the powers contained in the bills of sale, (a) Karet v. Kosher Meal Supply Association, 2 Q. B. D. 361 ; 46 L. J. Q. B. .548 ; 25 W. R. 691 ; 36 L. T. 694. (b) Walker v. Jones L. R. 1 P. C. 50 ; 35 L. J. P. C. 30; U W. R. 484 ; 14 L. T. 686; 12.Tur. N. S. 381 (c) Exp. Odell, re Walden, 39 L. T. 333 ; 48 L. J. Bank. 1. (rf) Chapman v. Knight, 49 L. J. C. P. 425. (e) Cookson V. Swire, 9 App. Ca. 653. THK HILLS OF SALE ACT, 187R. 20:, See. 11. 1878. though tlio Hocuritii's for tin- (hhts wen- nut oxpresaly jissigiuuL'"' WluTo u person Lought i»f the gniiiLor guotl.s comjirised in u hill ot" sale, paying off the mortgagee, and taking the hill of Hale with a receipt pnrporting to assign the goods to him, it wa.s held under the Hills of Sale Act, IS-Vt, that he did not acquire the mortgagee's rights even to the extent of the money paid, and his claim was j)ostponed to that of the holder of a bill of sale, of which he had no notice, given by the grantor .subsequent to the mortgage paid off, but prior to his ])urchaHe.'*' 11. (1878.) The registration of a bill of sale, "/JJ^^^^'-.^J whether executed before or after the commencement of this Act, must be renewed once at least every five years, and if a period of five yeai's elapses from the registration or renewed registration of a bill of sale without a renewal or further renewal (as the case may be), the registration shall become void. The renewal of a registration shall be effected by filing with the registrar an affidavit stating the date of the bill of sale and of the last registration thereof, and the names, residences, and occupations of the parties thereto as stated therein, and that the bill of sale is still a subsisting security. Every such affidavit may be in the form set fortli in the schedule (A) to this Act annexed. A renewal of registration shall not become neces- sary by reason only of a transfer or assignment of a bill of sale. The n'pealed Hills of Sale Act. lS6f3 (29 & WO Vic. c. O'.). formerly regulated the renewal of bills of sale. The amendment Act does not iijijily to any l>ill of sale registered before its commencement so long as registnition is not avoided by non-renewal or otherwise ; nor does it invali- date as between grantor and gnintee a bill of sale registered under the repealed Acts, the registration of which has become void for want of renewal.''' (a) ««• Patrick, 30 W. R. 113; [1891] 1 Ch. 82; 80 L. J, Ch. Ill ; 63 L. T. 7:2 (i) C'per r. Hralmiii, 1.1 L. T. N. S. 610. (c) See. 3 [1882^. Swire r. Cookson, 4N L. T. 877; Cookwui r. Swire, A|«ii. CBsei*, 663. M Set. 11. [1878]. 206 THE BILLS OF SALE ACT, 1878. Renevral of registration. Bills of sale registered after the 31st October, 1882, will require renewal every five years under the principal Act ; and a bill of sale to which the amendment Act applies, if not duly re-registered, will become void even as lietween the parties.'"' By sec. 23 of the principal Act, any renewal after the commencement of the Act of the registration of a bill of sale executed before the commencement of the Act and registered under the Bills of Sale Acts, 1854, 1866, shall be made under the principal Act in the same manner as the renewal of a registration made under that Act. But a bill of sale, the registration of which was void for want of renewal at the com- mencement of the principal Act, cannot be renewed under that Act.'" By sec. 14 of the principal Act, any Judge of the High Court of Justice, on being satisfied that the omission to file an affidavit of reneAval within the prescribed time was accidental or due to inadvertence, may extend the time for renewal on such terms as he thinks fit to direct. "When a bill of sale has been re-registered since the 31st October, 1882, an abstract of the re-registration, sealed and dated, shall be transmitted by post to the registrar of the County Court to which such abstract should have been transmitted had the bill of sale been registered under the amendment Act.''^' The affidavit should state the names, residences, and occu- pations of the parties as given in the bill of sale, although such description may be erroneous ; thus, where the mort- gagee was, in the bill of sale, described as of a wrong county, and in the affidavit her right address was given, which did not appear in the bill of sale, it was held that the affidavit did not comply with the provisions of the section, and therefore the renewal of registration was invalid. In such a case the description should have been stated as in the bill of sale, fol- lowed by a description of the true residence.'"'' A transfer or assignment of a registered Inll of sale does not require registration.''' Under the Bills of Sale Act, 1866, (a) Fenton v. Blythe, 25 Q. B. D. 417. (h) Re Emery, 21 Q. B. D. 4<« ; 37 W. R. 21. (c) R. S. C, Bills of Sale Acts, 1878 and 1882, Rule 5. {d) Exp. Webster, re Morris, 31 W. R. Ill ; 22 Ch. D. 136; 48 L. T. 295 ; 52 L. J. Ch. 375. (e) Sec. 10, cl. 5 [1878]. THE BILLSOPSALE ACT (1878) AMENDMENT ACT, 1H82. '^)1 ScC. 11. [1882.1 which recjuired the registration of u l)ill of Hiile to be renewed once in every Hve yeura, where tlie goods under a hill of sule originidly duly registered, were within five yoiirs assigned hi/iuijuie, but the assignment was not registered, nor was any re-registi"ation of the bill of sale effected, it was held that after the expiration of the five years the registration of the bill of sale became absolutely void, and the goods, being in the possession of the grantor, were not protected against his creditors.'"' 11. (1882.) Where the afl&davit (which under i-ocai rc:;i>(ni- J.J.. vAv^w.v./ ^ V lionof c<>riieii»* section ten of the principal Act is required to accom- of bin of B«ie. pany a bill of sale when presented tor registration) describes the residence of the person making or givipg the same, or of the person against whom the process is issued to be in some place outside the London bankruptcy district as defined by the Bankruptcy Act, 1809, or where the bill of sale describes the chattels enumerated therein as being in some place outside the said London bankruptcy district, the registrar under the principal Act shall forthwith and within three clear days after registration in the principal registry, and in accordance with the pre- scribed directions, transmit an abstract in the prescribed form of the contents of such bill of sale to the county coui't registrar in whose district such places are situate, and if such places are in the districts of different registrars, to each such registrar. Every abstract so transmitted shall be filed, kept, and indexed by the registrar of the county court in the prescribed manner, and any person may search, inspect, make extracts from, and obtain copies of the abstract so registered in the like manner and upon the like terms as to payment or otherv/ise ay near as may be as in the case of bills of sale registered by the registrar under the principal Act. (o) Karet >•. Kosher Meat Supply Associnlion, 'i y. U. D. .361. M 2 retristration. Sec. 11. 208 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882.] Local This provision for local registration is a new one, and will afford additional facilities to creditors for ascertaining the position of persons with whom they are about to deal ; but the omission of the registrar to transmit the abstract to the County Court Registi-y does not invalidate registration.'"' By .sec. 96, with schedule 3 of the Bankruptcy Act, 1883, the London bankruptcy district comprises the City of London and the liberties thereof, and all such parts of the metropolis and other places as are situated within the districts of the Metro- politan County Courts of Bloomsbury, Bow, Brompton, Clerkenwell, Lambeth, Marylebone, Shoreditch, Southwark, Westminster, and Whitechapel. By the rules of the Supreme Court, Bills of Sale Acts, 1878 & 1882,''" it is directed that the abstract of the contents of a bill of sale shall be in the form given in the Appendix thereto.'"^' The abstract shall be sealed with the seal of tlic Bills of Sale Department of the Central OflBce, and dated on the day on which it is transmitted by post to the registrar of the County Court named therein.''" Where a bill of sale is re- registered since the amendment Act, an abstract of the re-registration, sealed and dated, shall be transmitted by post to the registrar of the County Court to which such abstract should have been transmitted had the bill of sale been registered under the amendment Act.'" When a memoran- dum of satisfaction is written upon any registered or re- registered bill of sale, an abstract of which has been so transmitted, a notice of such satisfaction, in the form in the appendix, dulj* sealed and dated, shall be transmitted to each of the registrars to whom an aV>stract of such bill of sale shall have been transmitted.'-''' The registrar shall number the abstracts and notices of satisfaction in the order in which they shall respectively be received l)y him, and shall file and keep them in his office. "' The registiar shall keep an index, alphabetically arranged, in which he shall enter under the first letters of the surname of the mortgag(jr or assignor, such surname, with his Christian name or names, address, and description, and the number which he has affixed to the abstract.'*' (o) Trinder r. Raynor, 66 L. J. Q. B. 122. (6) P. 2«5. (<•) Rule 3, Form, p. 276. (rf) Rule 4. (e) Rules. (.f) Rule«, Imiiiu, I). 277. (.7) R"le 7. (h) RuleN. IIIK lULLS (IK SAI.K ACTS, 1878 AND 1882. 2(Ki .gee II. [1882] Upon receipt ol" a notice of HatiHt'uctioii, the regiMtrar .sliuU ggg j2. enter it in the abstnict of the bill tu which it relates, and | 1878.1 shull note in the index against the name of the mortgagor or assignor the fact of the satisfatrtion having been entered.'"' The regulations for searches in local registries differ in .some respect from those prescribed by sec. 16 of the principal and amendment Acts, and are as follows: — The registrar shall allow any person to search the inde.v at any time during which he is rciiuired by the County Court Rules, for the time Ix'ing, to keep his office open, upon payment by such person of one shilling; and to make extracts from the abstract or notice of satisfaction upon payment of one shilling for each abstnu't or notice of satisfaction inspected.""' He shall also, if required, cause an office copy to be made of any abstract or notice of satisfaction, at a fee for making, UKukiug and sealing the .same, of sixpence per folio.'*"' 12. (1878.) The registrar shall keep a book (in ^^(^^^^ this Act called "" the register ") for the purposes of this Act, aud shall, upon the filing of any bill of sale or copy under this Act, enter therein in the form set forth in the second schedule (B) to this Act annexed, or in any other prescribed form, the name, residence, and occupation of the person by whom the bill was made or given (or in case the same was made or given by any person under or in the execution of process, then the name, residence and occupation of the person against whom such process was issued, and also the name of the person or persons to whom or in whose favour the bill was given), and the other particulars shewn in the said schedule or to be prescribed under this Act, and shall number all such bills registered in each year consecutively, according to the respective dates of their registration. Upon the registration of any affidavit of renewal the like entry shall be made, with the addition of the date and number of the last previous entrj' relating (./) RuIeO. (4) Rule 10. (r) Rule U. Sec. 12. 210 THE BILLS OF SALE ACT, 1878. [1878.1 to the same bill, and the bill of sale or copy originally filed shall be thereupon marked with the number affixed to such affidavit of renewal. The registrar shall also keep an index of the names of the grantors of registered bills of sale with reference to entries in the register of the bills of sale given by each such grantor. Such index shall be arranged in divisions cor- responding with the letters of the alphabet, so that all grantors whose surnames begin with the same letter (and no others) shall be comprised in one division, but the arrangement within each such division need not be strictly alphabetical. The register. By Rules of the Supreme Court, 1883 (Order LXI.,Rule 18), there shall be entered in proper books kept for the purpose, the time of delivery of every document filed at the Central OflBce ; and such book shall, at all times during office hours, be accessible to the public on payment of the usual fee. It would seem that publication, in good faith and without malice, of a mere copy of the register, which under section 16. amendment Act, the public have a right to inspect, is privi- leged;'"' though publication of a copy register of judgments untruly representing them as still unsatisfied has been held libellous.'*' The proprietors of a list of registered bills of sale, com- piled on the terms that the copyright is to belong to them, and registered under the Copyright Act, the compilation re- quiring skill, and involving labour and expense, are entitled to restrain infringement of their list, or any material part of it, as, for instance, so much of the list as relates to a particular neighbourhood, nor are they disentitled because the list is not compiled on the terms of the copyright belonging to any one of the proprietors alone.'''''' (a) Searies v. Scarlett [1892], 2 Q. B. 56 ; 61 L. .1. Q. B. 673 ; 66 L. T. 837 ; 4(t W. R. 696. (4) Williams v. Smith, 22 Q. B. D. 134; 58 L. J. Q. B. 21 ; 59 L. T. 757 : 37 W. R. 93. (c) Trade Auxiliary Co. c. Middlesbrough Tradesmen's Association, 40 C. D, 426 ; 68 L, J. Ch. 293 ; 60 L. T. 681 ; 37 W. R. 337. THE BILLS OP SALE ACT (1878) AMENDMENT ACT, 1882. lil 1 SeCB. 12, 13. 11882.] 12. (1882.) Kvcry bill of siiK' made or {riven i" ,';;;;,„; ^.;';;.. consideration of any sum under thirty pounds shall '•ovoi-i. be void. The pnjposeil limit was orip;iiiully t'/iO.iuid the amount named in the .section is the result of a eoniprcjuiise. A hill of sale given in consideration of £30 would not he within the section ; and it will he ohscrved that the test is the amount of the consitleratiou. and not the sum secured hy the bill of sale ; thus, a hill of sale jjiven to secure £25 lent and £10 bonus on the loan would seem void within the section; but if given to secure a j)re-cxisting debt of £25, and £5 then paid, or a pre- existing debt of £:?0, would be good. A grantor having applied for a loan uf £15, the lender offered £:{0 if the grantor would agree to repay £15 on demand and the balance i)y instalments, to which the grantor assented, and £:i'> without deduction was ])aid to him, and stated, in a bill r)f sale then given, to be the consideration. Immediately after executing the bill of sale, the grantor asked the mort- gagee to demand the £15 at once, as he did not want it. This the naortgagee did, and the £15 was repaid, a receipt being given. On default in j)ayment of the in.stalments of the remaining £15, .seizure was effected, when j)ayment was made vmder protest, and an action for damages brought ; but it was held that the bill of sale was valid and not an evasion of the section, for it did not a])pejir that before the bill of sale was executed there was any understanding that the £15 should be at once repaid, or that the transaction was a sham.'"' 13.(1882.) All iHTsotKil chattels seized or of wi,..n^c_^utei«^ which possession is taken after the conimenceinent '"■""'"'• of this Act, under or by virtue of any bill of sale (whether registered before or after the conunence- ment of this Act), shall remain on the premises where they were st) seized or so taken possession of, and shall not be removed or sold until after the expiration of five clear days from the day they were so seized or so taken possession of. (a) DHviCH c. UHher, 12 Q. B. D. 490; :ia W. U. M2 ; 63 L. .1. Q. h. 403 , :,l T.. T. •-•97. Sec. 13. 212 THE BILLS OF SALE ACTS, 1878 AND 1882. [1832.] Sec. 13. [1878.] When chattels The section will, in a great measure, prevent the extortion too often practised upon borrowers of money may he re- " who had made default in strict observance of the stipulations movcii or sold. ^^ ^^le deed, and by sec. 7 of the amendment Act, which limits seizure to certain cases of default, it is provided that the grantor may, within five days from seizure, apply to the Court or a Judge, who, if satisfied that by payment of money or otherwise the cause of seizure no longer exists, may restrain the grantee from removing or selling the chattels seized, or may make such other order as may seem just. The section will, however, increase the danger of distraint upon the chattels for rent, rates and taxes ; though as the pro- tection it affords is for the benefit of grantors and not of landlords, a bill of sale holder may with the graiitor's consent remove the goods, even within the period of five days, in order to avoid a distress, and will not be responsible to the land- lord for loss of rent occasioned by the removal, or to an action for double value under 2 Geo. II. c. 19.'°' Actual seizure of the goods without removal will, it would seem, prevent the operation of the reputed ownership clause. Where, after default, a l>ill of sale holder seized a horse and cab, comjarised in his security, while plying for hire, and removed them to a private yard, where he kept them for five days, on the grantor, who had notice where they were, suing for damages for wrongful seizure, it was held that the section had been reasonably complied with.'*' The five clear days during which the goods are to i-emain on the premises are, it would seem, to be reckoned exclusive of the days of seizure and removal. The registrar. 13. (1878.) The Masters of the Supreme Court of Judicature attached to the Queen's Bench Division of the High Court of Justice, or such other officers as may for the time being be assigned for this pur- pose under the provisions of the Supreme Court of Judicature Acts, 1873 and 1875, shall be the registrar for the purposes of this Acrt, and any one of (a) Tomliiison, c. Consolidated Credit Corporation, 24 Q. B. D. 135 : Lane V. Tyler, 56 L. J. Q. B. 461. (6) O'Neill r. City Finance Co., 17 Q. B. D. 231 ; 31 W. R. 515 ; 55 L. T, 408. TMi: BILl.S OK SALK ACT, 187H. L'i:{ SeCB. 13. 14 1878. the said mastt-rs may luTtoriii all or any ot tlu- ilutirs of the registrar. By Orilur LXI.. Rule J'.. Kiilcsof th.- Siipn-im-Cotirt. 188:5. the Masteis shall cxccutf t he (ifficc of registrar for thi' |iiir|)oses of the Acts, and any one 111 tlir Masters may |i(rt'(inii all or any of the (lutii'S of the ii'^i>t rar-. 14. (1878.) Any iutk't' of tlio lliL^h (.:ourt of itoii.ncHU..,. Justifo, on bcin^' satistiod that the omission to rej^ster a bill of sale or an attidavit of renewal thereof within the time preseribed by this Act, or the omission or mis-statement of the name, residence or occupation of any person, was accidental or due to inadvertence, may, in his discretion, order such omission or mis- statemeul to be rectified by the insertion in the register of the tru<' name, residence, or occupation, or by extending- the time for such registration on sucli terms and conditions (if any) as to security, notice by advertisement or otherwise, or as to any other matter, as he thinks fit to direct. (Jrders umler tlie st-c'tioii are usually iiuulc without pre- judicc to the rights of parties acquired wlieu the hill is actually n^gistered; hut it was formerly held that the section gave the judge discretionar}- power to order rectification after the rights of third parties had accrued.'"' But even if the Court has discretionary power to order rectification after some third person has accpiired a vested interest adverse to the liill of .sale holder, which seems douhtful, such discretion should not he exercised to extend the time for registration after an execution creditor has seized, and has thu> accjuired an interest in the goods.'*' And where after the time had expired for renewing regis- tration of a hill of sale, the grantor was adjudged hankrupt hefore auy application to rectify, the Court of Appeal held that the time for renewal of registration could not ho extended so as to defeat the rights of the trustee in hank- ruptcy. in whom the graiitor's property had vested ; luul that (a) He Dobbin, 6« L. J. Q. B. 2«.'> : .">7 I.. T. 277 ; Form. p. 277. (6) Crow r. Cuminiiit?«, 21 g. H. D. 1») ; 30 W. U. 008; 57 I,. .1. Q U. 611; -|9 L. T. «8«. Sec. 14. 214 THE BILLS OF SALE ACT, 1878. [1878] the decision of the Queen's Bench Division in re Dobbin must be treated as overruled.'"' The application for rectification or extension of time must ])e to a judge of the High Court, and the Court of Appeal has no jurisdiction to rectify the register.'*' The judge has no power to allow an aflBdavit to be filed supplying the residence and occupation of an attesting witness inadvertently omitted in the afiidavit filed on registration, his powers 1)eing limited to rectification of the register ; ''"' but he might, it would seem, cure any defect by extending the time for registration. ]^Sf' "° °* The tendency of the cases for some time past has been to relax the severity of the rule that a slight misdescription vitiates a bill of sale ; but it will now be safer, in all cases where any doubt exists as to the materiality of the error, to adopt the course pointed out l)y the section ; or to prepare and register a new bill of sale, stating that it is given for the purpose of correcting a material error in the prior security. A bill of sale given in November, through inadvertence not being registered, leave was given on the mortgagee's ex parte application in the following January, to register within three days, the order providing that " the time for registration be enlarged for three days from this date, notwithstanding that the time for registration has elapsed." The bill of sale was not registered until the fourth day from the order, reckoning an intervening Sunday, and prior to the ex parte application the grantor had executed an assignment for the benefit of creditors, which constituted an act of bankruptcy, on which he was after- wards adjudicated a bankrupt, but it was held against the trustee in bankruptcy that registration was in time, the prac- tice of the High Court where the order was made not reckoning Sundays, and that the validity of the order could only Ijc questioned in the Court by which it was made.'''' It has been held that the section is not retrospective and there is no power to enlarge the time for renewal of registration of a bill of sale void for want of renewal of registration at the time of the commencement of the prin- cipal Act.''' (o) Exp. Purber, re Parsons [189:1], 2 Q. B. 122; 62 L. J. Q. 15. 365: 41 W. R. 468 ; 68 L. T. 777. (b) Exp. Webster, re Morris, 48 L. T. 295. (e) Crew 0. Cummint'8, 21 Q. B. D. 420; 36 W. R. 908: 57 L. .T. Q. B. 641; 59 L. T. 886. (d) Re Parke, 13 L. R. Ir. 85. (*>) Askew V. Lewis, 48 L. T. 534 ; 31 W. R. .567 ; 10 Q. U. D. 477 ; 1 Cab. & E. 34 ; .J. P. 312 ; re Emery, 21 Q. B. D. 405. THE BILLS OF SALE ACTS, 1878 AND 188:i. 215 Sec. 14. [1882.] 14. (1882.) A bill of siile to which this Act applies gg(. ^5. hIuiII he no pnttectioTi in respect of personal chattels [1878.J included in such bill of sale, which but for such bill ",''],r,!,^,'.l' ""* of sjile would have been liable to distress under a li^e^'fx-JJ^'iilJd warrant for the recovery of taxes and pour and other '""■'*^'*' '■*»^ parochial rates. lieforc tliL' .section, by the .statutes aulliDiiziiij^ di.stre.s.s for nites. only the jjjood.s of the person iisses.sed could l>e levied, this being the usual rule with regard to distress for fines or amerciaments, as distinguished from distraint for rent, to which, with .sonic few exceptions, all goods on the premises are suhjeet, whether of the tenant or a stranger; thus, where l)y hill of sale the grantor had parted with his property in the goods, they were not subject to distress for rates, although liable to the landlord's claim for rent. The levy may be upon the goods of the person assessed, not only in the place for which assessment is made, but in any other place in the same eotinty, or if no sufficient distress is there foinid, then in any other county on oath made before justices.'"' Wearing apparel and bedding of the person assessed and his family, and, to the value of £5, the tools and implements of his trade, are not to be levied under a distress for rates. The section only deprives the bill of sale holder of protec- tion where a distress warrant has been, or could be, issued for the taxes or nites ; thus he is protected against an execution for rates, and where a local authority proceeded for rates in the County Court, under section 261 of the Public Health Act, 187.">, recovering judgment, on which they levied execution, the bill of sale liolder was held entitled to the goods against the local initliority as execution cn-ditors.'*' 15. C1878.) Subject to iind in accordance with Kmrvof any rules to be made under and for the purposes of this Act, the registrar may order a memorandum of satisfaction to be written upon any registered copy of a bill of sale, uiK)n the prescribed evidence being given that the debt (if any) for which such bill of sale was made or given has been satisfied or dis- charged. ('i) Stone'B Pr. for .1.1.1'., 0th r printed, " any copy of a registered bill of sale, and affidavit purporting to he an office copy thereof," but the above would seem to be the correct reading. See the section in Appendix. THK BILLS OF SALK ACT, 1878. L'l'.l See. 16. [1878.1 to be an office copy thereof, shall in all Courts, ami before all arbitrators or other persons, be admitted as prima facie evidence thereof, and of the fact and date of retristration lus shewn thereon. Any person J^^p^iw i- shall be entitled at all reasonable times to search theriasi!, ret^'ister and every rctjcistered bill of sale, upon pay- ment of one shilling'- for every copy of a bill of sale inspected; such payment shall he made by a Judica- ture stamp. So much of the section u.s enact.s that any per.son shall he entitled at all reasonahle times to search the register and every registered hill of sale, uj)on payment of one shilling for «very copy of a hill of sale inspected, is repealed hy sec. 16 of the amendment Act. The section alters the former practice as to proof of a hill of .sale, and avoids the trouljlc and expense of calling an officer of the Queen's Bench Division. No affidavit or record of the Court shall Iju taken out of the Central Office without the order of a judge or master, and no suhpoena for the production of any such document shall lie issued.*"' Under the repealed Acts, a certificate of registration of a Proof of i)in of document purporting to he a hill of sale, with the date and endorsement of the names of the parties, was no evidence that an affidavit satisfying all the requirements of the statute had heen filed with the hill of sale.'* Neither was a certificate of registration of " a document purporting to he a copy hill of sale together with an affidavit," sufficient evidence of the due filing of the hill of sale, unless there was also proof that the document registered was a true copy of the original hill of .sale.'^''' Nor under the present Acts is production of a hill of sale and certificate of registration evidence of due registra- tion, hut if the ohjection is taken it seems that tlie proper course is to adjourn the hearing U)V the production of furl her evidence. •'" ('>r, ; i. n. Kinmott r. Xfarclmnt, :iti W. K. K.T_': 47 L. J. Q. B. W« ; (irindell r. BreiiUon. 6 C. H. .N. S. e»H ; Wa«l- ilimjlou r. H-.berts, L. U. 3 y. b. 579; 37 L. J. Q. H. :»3 ; 9 U. A .S.t«)7; Hi W. I{. low ; Is L. T. 853. (r/) Turner r. Culpan, 36 W. R. 27H. Sec. 16. 220 THE BILLS OP SALE ACT, 1878. [1878.] Under the present system, office copies of all documents filed in the High Court shall be admissible in evidence in all causes and matters, and between all persons or parties, to the same extent as the original would he admissible : '"' and all copies, certificates, and other documents appearing to be sealed with a seal of the Central Office shall be presumed to be office copies or certificates or other documents issued from the Central Office, and if duly stamped may be received in evidence ; and no signature or other formality, except the sealing with a seal of the Central Office, shall be required for the authentication of any such copy, certificate, or other docu- ment.'*' The fee for office copies is sixpence per folio. By the Common Law Proceedure Act, 1854,'''' it is not necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite. Sec. 8 of the principal Act will, it seems, render it necessary to prove by the attesting witness all ixnregistered bills of sale where the fact of execution is in issue ; but if the bill of sale has been registered, an office copy of the affidavit by the attesting witness will, under the provisions of the section, be j?Hma facie evidence thereof. The rule applies to a cancelled or burnt deed,'"" as also to one the execution of which is admitted by the party to it, even in open Court,'*' or in a subsequent agreement,'-''' or in a sworn answer to interrogatories,'^' nor will illness excuse the attendance of an attesting witness.'*' When it is Where the instrument is thirty A'ears old it proves itself; iimiecessary to j -x- -j. • • j.i. • x- iU ' j i. i_ a ' I'.-ill the attest- '^^icl II it IS m the possession oi the adverse party, who refuses to produce it pursuant to notice, or, if producing it, claims an interest under it in the subject-matter of the cause ; '"' or where the document is tendered in evidence against a public officer who is bound by law to have procured its due execu- tion, and who has dealt with it as a document duly executed ; '■'' (a) R. S. C, 1883, O. xxxvii. 4. (6) R. S. C, 1883, O. Ixi. 7. (c) Sec. 26. (d) Breton r. Cope, Pea. R, 44; Gillies r. Smither, 2 Stark, 528. (e) R. u. Harringworth, 4 M. & S. 353 ; Johnson v. Mnson, 1 Esp. 89. (/) Doe r. Penfold, 8 C. & P. 536; contra, Bringloo c. Goodson, 5 Bing. N. 740. (3) Call V. Dunning, 4 East. 53 ; Bowles c. Langworthy, 5 T. R. 360. (k) Harrison c. Blades, 3 Camp. 357 ; contra, Jones v. Brewer, 4 Taunt. 46. (i) Doe e. M. of Clevland, 9 B. & C. 864. (;) Plumer f. Brisco, 11 Q. B. 46 ; 12 Jur. 351 ; 17 L. J. Q. B. 158; Barnes /^ Lucas, Rv. Hi M. 264. • witness. TIIK Hll.IiS Ol" SA1,K ACTS. 1H7H AND ISM:;. SZ] S«C. 16. [1878. 1 it will Im- uimci-fssiiry to call tlic uttoHting witneHB; iicitliiT will a9C. 16 the rule apply wlu-rc tlur party, from physical or If^al ^1882] oljstucles, is unable to produce the attestiuK wituesH — aH, if the witness he deatl, or insane, or out of the jurisdiction - Hefurit y foi' ii |liiiit.iiiLr l>nl;tii(r. not juliuittinj^ any hpccific «U^)t or iMuitainiii^ an ameeuu-nt to |»ay i.s within the c.v- «;o|)tiun, or wliother an in.struint'nt which charges specific property as distinKuisliud from a general cliarge on a-; 3ii \V. R. 411 ; 57 L. J. Ch. 202; .■-.►> L. T. 218. (A) Topliam c. GrceiiKidc Ac. Co., 37 Ch. D. 281. (r) BrocklehiirHt r. Rjiihvay I'riiitinir, Ac, Co., W. N., Ias4, 70. (./) JonkiiiHoii r. Hmiutloy .Miniinf t'o., 35 \V. R. KH; 19 K). H. D. SrtH. (r) Room r. .\niiy and Niivy H.itol C(i., 34 C'li. 11. ^i : .T". W. R. *» ; 6.'. I.. T. 47«. N 2 Sec. 17. 224 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. [1882] The words " other incorporated Company" used in the sec- tion, are not limited to an incorporated Compfiny, ejUHdcm generis with mortgage or loan Companies ; but even if it were so, any Company authorized to raise money on loan or mortgage would, for the purposes of the sections, be ejusdem rjeneris. '"' Debemmes to Debentures which create a charge on the floating real and which Acts not p ^ , ... to aii]iiy. ])er.sonal property or a Company do not require registration Under the amendment Act.'"' It was questioned whether debentures, although excluded by the section from the operation of the amendment Act, were bills of sale within the definition contained in the principal Act;'** but this has now been decided in the negative ; and although deben- tures are agreemeuts by which a right in equity to a charge on personal chattels is conferred, mortgages or charges by an incorporated Company, for the registration of which statutory provision has been made by the Companies Clauses Act, 1845, or the Companies Act, 1862, are not bills of sale within the principal Act. The principal Act, there- fore, does not apply to a debenture issued by an incor- porated Company ;'"' indeed, it has been pointed out that if it did, as the Acts are by sec. 3 of the amendment Act to be construed together, sec. 17 would exclude the necessity for registration.'''' A transfer, by the mortgagee, of a charge on chattels given by an incorporated Company, does not, it is said, confer a valid charge on the chattels charged or the debt secured, unless the formalities of the Bills of Sale Acts are complied with.'"" A bill of sale by a Company has been said tn be within the Acts,''' and may be given or taken in the incorporated name of the Company ; "'' and where chattels were assigned to a Company, which consisted of two persons only, it was held that the assignment enured for their benefit ; ''* so a bill of sale to " The D. Bank of London, of a given address, of which said bank A. B., of the same place, is the sole pro- prietor," was held sufficient.'*' (a) Re Standard Manufacturinj,' Co., exp. Lowe [1891], 1 Ch. 627; 89 W. R. 369 ; 60 L. J. Ch. 72 ; 64 L. T. 487. (6) Welsted v. Swansea Bank, Ld., 5 T. L. R. 332. (o) Read f. Joannon, 25 Q. B. D. 300; 38 W. R. 734; 63 L. T. 387 ; 59 L. J. Q. B. 644. (rf) Jarvis v. Javvis, 69 L. T. 412. (e) Re CunniiiKham, 28 Ch. D. 682. (/) Shears v. Jacob, L. R., 1 C. P., 513. • (g) Maugham v. Sharpe, 17 C. B. N. S. 443. (*) Simmons v. Woodward, [1892] A. C. 100. TlIK HILLS (»K SALK ACVl'S, 187M AND 1HH2. TJG Sec. 17. 1 1882. 1 Under tlu' principal Act, it litis Leon held that want < t Cpp 17 n'gistnitioii does not avoid, as against the official li<{uidat l»o I'lli-U in a DiHtrict R«(ristr7 ((0 R. S. ('., 1HM3, O. xxxviii.. Rule 10. (r) Rulfl It. ( f) Rule 15, (.9) Rale 18. Sees 17, 18. 228 THE BILLS OP SALE ACT, 1878. '1878.] Formerly where an affidavit of execution made by the solicitor attesting a bill of sale was sworn by him before a commissioner, who was in partnership with him as a solicitor, it was held the affidavit was duly sworn ; '"' but now no affidavit shall be sufficient if sworn before the solicitor acting for the party on whose behalf the affidavit is to be used, or before any agent or correspondent of such solicitor, or before the party himself ; ''*'' and an affidavit which would be insufficient if sworn before the solicitor himself, shall be insufficient if sworn before his clerk or partner.'"' A false statement in an affidavit in non- judicial pro- ceedings was a misdemeanour at Common Law.'"" Perjury is punishable by penal servitude not exceeding seven years, or by imprisonment. Tee8. 18. (1878.) There shall be paid and received in common lavr stamps the following fees, viz. : — On filing- a bill of sale .. . ... ... 2s. On filing the affidavit of execution of a bill of sale ... ... ... ... 2s. On the affidavit used for the purpose of re-registering a bill of sale (to include the fee for filing) ... ... 5s. By order as to Supreme Court Fees, 1884, the following fees for searches and inspection are payable : — 114. On a request for a search and certifi- cate, pursuant to Order LXI., 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 re- quested within 14 days of any former search (the result to be endorsed on such certificate) ... ... ... ... Is. (a) Vernon c. Cooke, 49 L. J. C. P. 767. (6) R. S. C, 1883, O. x.xxviii., Rule 16. (e) Rule 17. (d) R. D. Hodgkiss, L. R. 1 C. C. R. 212 ; 39 L. J. M. C. U; 11 Cox. 365 ; 18 W. R, 160 21 L. T. 564. r> (J 10 1 TIIK HILLS OF SALE ACT, 1878. 21iy Sec. 18. 1 1878.] By till" (jnli^r ns to Siipn-ino (!oiirt FeoH, 1884, tlio following aro pn^HcrilM-d : — '-\6. On filiiig !i bill of siili- iiiul iitliduvit then!- £ m. «1. with when- the consideration (including t"iirtli and not cxcfcdinf^' fiOO 38. Above £200 39. On filing? nndor tli.- Hills of Sab- .\ct.s, 187H and 1K82. any other document to which the fees Nos. 3«. :?7 and :{8 do not apply O 10 40. On tiling an atlidavit of re-registration of a bill of sale or any such other document as in No. 39 mentioned ... ... ... 10 41. ( )n filing a fiat of .satisfaction ... ... 5 By order as to fees and percer>tage.s, 4th .Inly, 188-1-, it is provided that the alxive fees shall l)e paid l»y inipres.sed stamps. The following duties are iinposed on bills of sale by the Siaiiip <»uiie«. Stamp Act, 1891, and should be denoted by inijjresKcd stamps, except iji crises within sec. 7, Stamp Act, 1891, where the duty not exceeding 2s. 6d., adhesive stamps may be used, calculated according to the amount or value of the con- sideration ap|)earing on the fjwe of the deed. By sec. 41 of the Act 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 origiinil duly stamped is produced to the proper oflBcer. But a bill of sale though not duly stamped at the time of filing the copy, was admitted in evidence on the duty and penalty being paid.'"' An absolute bill of .sale is a conveyance within the Stanij) Act, and is subject to a stamp duty upon the amount oi- value of the consideration for the .sale as follows : — Not exceeding £2I'> a duty of 6d. for every £5 or part of I'o. Exceeding '2.'i and not exceeding £50 50 .. ., 75 75 .. „ KM) 100 ,. „ 125 125 .. .. 150 150 .. .. 175 (a) Be'.lmmyr.RRull. 4H. .t.S.LW. : 32 I,. .1. Q. B. 3W ; 3 W.R. «I7! S L. T. M4. £0 5 7 6 10 12 t) 15 (1 17 6 £1 1 2 6 1 5 1 10 Sec. 18. '430 THE BILLS OF SALE ACT, 1878. [[1878. Exceeding £175 and not exceeding 200 200 „ „ 225 225 „ „ 250 275 „ „ 300 „ 300, for every £50, and also for any fractional part of £50 of .such amount or value ... 5 A conditional bill of sale, being the only or principal security, other than an equitable mortgage, for the payment or repayment of money, is to be stamped as a mortgage as follows : — Not exceeding £25 . Exceeding £25 £0 8 25 and not exceeding £50 1 3 60 „ „ 100 2 6 100 „ „ 150 3 9 150 „ „ 200 5 200 „ „ 250 6 3 250 „ „ 300 7 6 300, for every £100, and also for any fractional part of £100 of the amount secured . . . 2 6 If a collateral, auxiliary, additional, or substituted security, other than an equitable mortgage, or by way of further assurance, where the principal or primary security is duly stamped : — For every £100, and for any pai't of £100 secured £0 6 Being an equitable mortgage : — ^for every £100 and any fractional part of £100, of the amount secured ... £0 1 A re-conveyance or release, or a transfer or assignment of a bill of sale, or of any money thereby secured, is subject to a duty of 6d. for every £100 or part of £100 of the amount transferred or assigned. If any further money is added to the amount ah-eady advanced, the instrument .should be stamped as a principal security for such further money ; for it would seem that a transfer of a bill of sale accompanied by a further advance is, for the purposes of the Stamp Act, a transfer of a bill of sale of the amount of the original advance, and a new security to the extent of the additional advance.'"' (a) Wiile V. Comniissioners of Inland Revenue, 41 L. T. 166. TlIK HlLl.S OF SAI.K A( T, 1M7M. SM SeC. 18 [1878., A Itill of saU; to sccuii' tutinf ailviiiicfh. either with or without inoiioy j)revioiisly tint', is to hi; <'liHrm-d, wIkjii tht; total amount secured is in any way limited, with the sanu; duty ati a Hocurity for the amount uo limittMl ; where such total amount is unlimited the security will only In; available for the amount which the stamp thereon impres.scd t-xtends to cover, but where any advance is made in excess of the amount covered by that duty the security shall, for the purpose of stamp duty, be deemed to be a new and separate instrument, bearing date on the day on which the advance or loan is made. "' Cnder the repealed .sec. IT), 8tamj) Act, 1870, corresponding Stamixmuo*. to sec. li), Stamp Act. 1891, the Ccmunissioners of Inland Revenue migiit stamp the security, even after its execution, for the proper amount for which it is sought to be made available.'*' It was u.siiiil to iiiserl a proviso that I lie total princijial moneys recoverai)ie under tlie l)ill of sale >liould not exceed a specified sum. The documents defined as Ijiils of sale by sec. 4 of the principal Act will probably reqixire to l)e so stamjjed ; thus, an inventory with receipt attached, a reci'ipt for the purchase- money of goods not in the ordinary ctmr.se of business, or an agreement by which a right .shall be conferred in ecpiity to any personal chattels, or to any charge or security thereon, should, it would seem, now be stamped as a l)ill of sale. Where a bill of sale assigned specified chattels and all others substituted for them, i>rovided their description should be indorsed on the bill of .sale, indorsements describing sub- stituted chattels were lield to be only for the purposes of identification, and not to require an additional stamp.''"' On an issue to try the pro|)erty in goods, a previous bill of sale of the same goods, although cancelled, is not admissible, even to prove good faith, unless duly stamped /'''' Init an un- stamped bill of .sale may be given in evidence for tht; purpose of proving an act of baukrujJtcy." Indeed, it appears that whenever a bill of sale is used, not to c.^talijisli it, or st;t it («. ( fees jlirected to be paid under orders iimde in pursu- niice of the si^ctioii will l)e found noted to sec. IK. Further regulations iis to fees will ht- found in the I'uliiic Offiees Fees Act, 1879, and in the Order as to Supreme Court Foes, 1884. 20. (1878.) Chattels comprised in a l.ill .d" sale [^/;J';,'',f,'j;'^, whicdi has heen and continues to he duly registered under this Act shall not he deemed to be in the possession, order, or disposition of the grantor of the bill of sale within the nieanino- dt" tin- Hatikruptcy Act, 18(>U. This section is repeided iiy sec. 1;"> of the amendment Act, l>uji_it has been held that the repeal is. l»y sec. 3 of that Act, limited to bills of sale given as .security for the payment of money, and that bills of sale given by way of absolute transfer, alTid registered under the principal Act, arc still within the protection of the section. 'Iherefore, when an absolute bill of sale was given, after the eoTuniencenient of the amendment Act, and duly registered under the principal Act. it was held that the chattels it comprised (;ould not be deemed to be in the possession, order, or disposition of tin- grantor, who had become bankrupt.'*' As the amendment Act does not apply to any bill of sale duly registered before the commencement of the Act. unless the context otherwise requires,'*' the protection afforded by the section applies to chattels compri-sed in a bill of .sale duly registered before the 1st of November, 1882. even though after that time they may, with the consent of the true owner, lie in the re[)uted ownershij) of tin; grantor at the connnencement of his bankruptcy.'" The section, however, would not protect a mortgiiget- wlio.se l)ill of sale is unregistered or invalid from any cause where the doctrine of reputed ownership would (jtherwi.se have apj>lied ; but the protection of the si'ct ion has be9 I,. J. Q. H. 73; 8 W. R. 2111; e.ip. Harding, t-e P'airljrother, lo Eq. 22.3- 42 L J Bank. 30; 28 L. T. 241. (c) By sec. 15, sub-sec. 5, the correspondii'j; section of the Bankruptcy Act, 1869, the bankrupt's property comprised all goods and chattels being, at the commencement of the bankniptcy, in the possession, order, or disposition of the bankrupt, being a trader, by the consent and permission of the true owner, of which goods and chattels the bankrupt is reputed owner, or of which he has taken upon himself the sale or disposition as owner; provided that things in action, other than debts due to him in the course of his trade or business, shall not be deemed goods and chattels within the meaning of this clause. (d) Rolls c. Miller, 27 Ch. D. 71 ; 53 L. .T. V\\. CS2 ; 50 L. T. .597; 32 W. R. 80(f xp. Sully, re Wallis, 14 Q. B. D. 950 ; 2 Mor. 79 ; 52 L. T. 625 ; 33 W. R. 733. THK |{il,l,s OF SALK ACT, 1878. 2: <^f the Bankru|)tey Act, 188:<, as the time of the art of liaiik- ruptcy heinpj committed, on which a rct!eivinf» order is made, or if the bankrupt is proved to have <'ommitted more acts of bankruptcy than one. at the time of the first of the acts of bankrui»tcv ])ro\ ed to have l)een committed by the bankrupt within tlnec months next preeedin<^ the date of the presenta- tion of the l)ankruptcy pc^tition. Under the Bankruptcy Act, 1869, by HOC. 11, the bankruptcy commenced at the time of the completion of the act of bankruptcy on which the order of adju- dication was made, or the time of the lirst of the acts of bank- ruptcy proved to have l)een committed by the l)ankru|)t within twelve montlis next ]>i-eceding the onler of adjudication, pro- vided that at the time of committing; such prior act the )>ankrupt was indebted to some creditor or creditors in a sum or sums sufficient to support a petition, which debt or debt.s still riimained due at tlie time of the adjudication. The title of a trustee in liquidation, under sec. I'i'), sub-sec. •'), of the Bankruptcy Act, 1869, had a similar relation. '""■ Goods coming into the debtor's pos.scssion after the com- I,V^";,'|Jj"^','„ mencement of the bankruptcy are not within the section. '' To lirinpj the case within the section there must be reputed ownership, with possession, order, or disposition, by 'In- consent of the true owner; for the setaion means that if goods are in a man's possession, order, or disposition, under smh circumstances as to enable him Ijy means of them to obtain false credit, then the owner of the goods who has permitted him to ol)tain that false credit is to suffer the penalty of losing his goods for thr benefit of tlios<' who have given tin- credit.''' The doctrine of re|)Utocshnev e. Carrick, 1 H. 4 N. 65.S ; 20 L. .T. Kx. 129 : Spackman r. Miller. 12 C. B. N. S. 660 ; 9 Jur. N. S. 50 ; 31 L. J. C. P. 309. (6) In rf Stanley, 17 L. R. Ir. 487. (r) Knowlcs r. Horsfall. 5 B. i AlU. 131 ; Hcrvey r. I-UldiHid, 1 Stark, 12.< ; Homshv r. Miller, I K. A R. 192 ; ."> Jur. N. S. 93h. id) Bankruptcy Act, lh83, S. ti (1). (c) Exp. Briirht rr Smith, 10 Ch. I). 5»>« ; 4.S L. .1. Bunk, si ; 27 W. IC 3M ; 39 L. T. 649 ; fxp. Buck, r<- FawcuH, 3 Ch. I). 795 ; 31 [>. T. Hi)7. (/) Exp. Powell, r,- Matthews. 1 Ch. D. .Wl -. 45 h. .1. Biink. 100 ; 24 W. R. 811 ; .■>4 L. T. 2.U ; exp. Vaux. L. U. 9 Ch. t«12 ; 4.3 I-. J. Bank. 113 ; 22 W. R. 811 ; M [.. T. 739 : fxj,. Kmersnii, 41 L. .1. Hunk. 20 ; Sniitli r. Hudson. 34 L. J. Q. B. 145 ; 13 W. R. tJ83 ; 12 L. T. 377 ; 11 .lur. N. S. H22. ig) fYnwcour r. Salter, 18 Ch. D. 30 ; fxp. Hattcrslev, iv Blanslxnril, « Ch, D. «01 ; 47 L. .1. Bank. 113 ; 3H L. T. 619 ; 2« W. R. 6.3fi. (*) Exp. Turquand, r>- Parker. 14 Q. B. D. B3«. (i) Exp. Brooks, rf Fowler, 48 L. T. 453 ; 31 W. R. 833 ; 23 Ch. D. 2C1. ( j) Exp. I^overinK', re .Tones, I.. R. 9 Ch. «21 ; 1.3 L. .1. Bank. 116; .30 I-. T. »i2I ; 22 W. R. 8.V1. {k) Whitfield r. Brand. IK M. Jt W. 282 ; 1« I.. .1. K\. 103. {t) Watnon r. Peaehe. 1 Bmjt. N. C. 327. (m) HainilUm r. Bell. 10 Kxch. r,V> ; 18 Jur. 1109 ; 2» L. J. K\. W>. ill) Exit. Wi(?i{ins, 2 D. A C. 2«9 ; M. k B. 1«8 ; Cnrruthcr.s r. Payne, .'. Blnjf. 270 ; 2 M. i P. 429. u true owner. Sec. 30. 238 THE BILLS OF SALE ACT, 1878. [1878.] farmers,'"' wine merchants,'*' hop merchants/'' malting agents, 'rf) printers as to printing machines, ''' dealers in iron safes, '■'^ gas engines,'"'' and horse dealers,'*' and where, according to the custom of the country, machinery and utensils of trade are included in a lease, as in the case of a colliery, possession by the lessee does not necessarily raise any reputation of ownership.'*' Couseutofthe The true owner's consent is a question of fact to l^e gathered from all the circumstances of the case :'■'' and the onus of proving the consent of the true owner rests with the trustee.'** A person claiming a legal or equitable interest in the goods, as for instance, a pawnee, mortgagee, or bailee having a lien, is the true owner for the purposes of the section.'" If before any act of bankruptcy the true owner demands, or endeavours to obtain possession of the goods, or does some act to determine his consent to the debtor's possession, this vnll prevent the application of the section.'""' Thus, if he seizes the goods, although the possession is friendly, and does not disturb the grantor's apparent possession, it will be suflB- cient ; '"' and a mere demand of possession, if made in good faith will negative the consent of the true owner.'"' And even without any personal demand, the consent of the true owner was held to be withdrawn, his agents having made every effort, short of a forcible entry, to seize the goods in premises which had been closed.'''''' (a) Priestley v. Pratt, L. R, > Ex. 101. (6) Exp. Watkins, L. R. 8 Ch. .520 ; exp. Vaux. L. R. Ch. 602. (c) Exp. Dyor, re Taj'lor, 2 Mor. 269 ; 53 L. T. 768 ; 34 W. R. 108. (d) Harris v. Truman. 9 Q. B. D. 264; 30 W. R. 533; 51 L. J. Q. B. 338^ 16 L. T. 844. (c) Exp. Hughes, re Thrackrah,5 Mor. 235. (/) Exp. Poppleton, re Lock, 8 Mor. 51. {g) Ee Peel [1894], 1 I. R. 235. (A) Exp. Wingfield, re Florence, 10 Ch. D. 591. (i) Coombs V. Beaumont, 5 B. & Ad. 72. ij) Load V. Green, 15 M, &. W. 216 ; Prismall v. Lovegrove, 6 L. T. N. S. 220. (k) Exp. Alexander, re Eslick, 4 Ch. D. 496 ; 46 L. J. Bank. 30 ; 25 W. R. 260 j .35 L. T. 912. (I) Exp. Union Bank of Manchester, re Jackson, 12 Eq. 354 ; 40 L. J. Bank. 57; 24 L. T. 951 ; 19 W. R. 872; Colonial Bank v. Whinney, 11 App. Cas. 426. 34 W. R. 705. (m) Exp. Montagu, 1 Ch. D. 556 ; 24 W. R. 309 ; 34 L. T. 197 ; Spackmau r. Miller, 12 C. B. N. S. 659. (») Exp. National Guardians Assurance Co., re Francis, 10 Ch. D. -408. (o) Exp. Ward, re Couston, L. R. H Ch. 14t ; 42 L. J. Bank. 17 ; 21 W. R. 115 ; 27 L. T. 502 ; Smith v. Topping, 5 B. & Ad. 674 ; exp. Jay, L. R. 9 Ch. 704, per Mellish, L. J. p) Exp. Cohen, re Sparkc, 40 L. J. Bank. 14 ; 19 AV. R. 126. TIIK l{ILI,S OF SALK ACT, 1878. SM SeC. 20 [1878 1 It appfuis lluit if tlir iiiorl^ij^fi-, witliout ii()tic4- <»t im avuiltible act of bankruptcy committed by thf Rnintor. taken tlie goods out of his poHScssion before rcc^'iving ordcr» or endeavours to obtain thorn, or Hignifies his ilissont to their remaining longer in the grantor's possession, the section will not apply, even where an act of bankruj)tcy has been com- mitted; for although at the commencement of the bankruptcy the goods may luive been in the bankrupt's reputed ownership, mth tho consent of the true owner, his taking possession of the goods will be a dealing protected by sec. 49 of the Bank- ruptcy Act, 18813. A mere intention, however, to demand or take possession of the goods will not bo sufficient,'"' nor will an attempt to dispose of them if they afterwards remain in the Ijankrupt's possession."' A creditor who receives notice of his debtor's intention to OrtlfrBini commit an act or bankruptcy is not bound to inquire whether the act has been committed, but is entitled to avail himself «>f his remedies just as if he had received no notice. Thus, where the holder of a bill of sale received notice that tho debtor was about to tile a liquidation petition, and at once sent to demand payment of the debt and take possession of the property com- prised in the bill of sale, obtaining possession one day after the petition was filed, but having no notice that this had been done, it was held that the taking possession was a dealing with the debtor for valuable consideration within tho protective clauses of the Hankruptcy Act, and that the section did not apply, notwithstanding the prior act of bankruptcy. '*■' Goods and chattels in the custody of the law will not be in the debtor's order or dispositi7 ; Gr»liam ». Furber, 14 U. U. 131. (6) Reyuolds v. Hall, 4 H. Jt N. 510 ; 38 L. J. Ex. 2.17. (o) £xp. Arnold, re Wright, 3 Ch. D. 70. (rf) Sacker r. Chiilloy, 13 W. H. «W ; 11 Jiir. 6.'.t. (•) Taylor p. Kckeraley. 5 Ch. D. 740. if) Fletcher c. MtinuinK. 12 M. i W. Ull. rxp. Fobs, rr Baldwin. 2 Do (5. A J. WO; 27 L. J. Bank. 17 ; 4 Jur. N. S. r.22 ; exi<. StifTory, rr Bromnor. 10 Ch. D. n6H. (y) Burrow r. Bell, 5 E. & B. 640 ; 2.1 I.. J. V- U. 2 . 2o Jur. \M : 4 W. K. In . 36 L. T. O. S. 71 ; fxp. Edoy, rr Cuthbcrls jn, 41 L. J. Bonk. 65; I-. K. 10 K(|. 281 . M W. R. 310: .31 J.. T. 861, Sec. 20. '^'^ THE BILLS OF SALE ACTS, 1878 AND 1890. [1878.1 Sec. 2. Things in action, other than debts due or growing due to ri890.1 the bankrupt in the course of his trade or business are Sec 21 exempted from the operation of the reputed ownership [1878 1 clause of the Bankruptcy Act, but it is prudent at once to give notice to the debtor, trustee, or other person fi-oin whom such thing in action is claimed ; and so where goods are in the custody or warehouse of a third person notice should be given, in order to complete the bill of sale holdei-'s title. The doctrine of reputed ownership has been here con- sidered only in its application to bills of sale, and its principles will be found more fully discussed in treatises on l)ankruptcy law. Saving of 4f, .v 2. (1890.) Nothinff in this Act shall affect the 47 Vict. c. 'yl s. ii. operation of section forty-four of the Bankruptcy Act, 1883, in respect of any goods comprised in any such instrument as is hereinbefore described, if such goods would but for this Act be goods within the meaning of sub-section three of that section. By sec. 1, Bills of Sale Act, 1890, as amended by sec. 1. Bills of Sale Act, 1891, an instrument charging or creating any security on or declaring trusts of imported goods given (u- executed at any time 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, shall not be deemed a bill of sale within the meaning of the Bills of Sale Acts, 1878 and 188'J. Rules. 21. (1878) Eules for the purposes of this Act may be made and altered from time to time by the like persons and in the like manner in which rules and regulations may be made under and for the purposes of the Supreme Court of Judicature Acts, 1873 and 1875. Power to make rules was given by sec. 68 of the Judicature Act, 1873, since repealed, and provisions for making rules are now contained in the Supreme ('ourt of Judicature Act. 1875 ; the Appellate .Jurisdiction A(!t, 187ti ; and the Supreme THK lULLS OF SAI.K ACT, 1878. :iH Seci. 21, 23, 23. Cuurt of Judiciituri; AcU. l»»l uud 1884. All rules miid. 11878.1 iindei" the Acts arc to be laid before ea<;h House of Parlia- ment, and are subject to be annulled as l)y the Acts provided. ('ertain rules have been issued in pursuancf of these [Miwers. and will be found in the Appendix, I'arl 1. 22. (1878.) When the timt- for registering a biirj!;!^;;',[;;ji„„, of sale expires on a Sunday, or other day on which the registrar's office is cU>sed, the registration shall be valid if made on the next following day on which the office is open. By K. S. C, 1883, Order Ixiii., Rule 6, the several office- of the Supreme Court shall be open on every day of the year except Sundays. Good Friday. Easter Eve, Monday and Tuesday in Easter Week. Whit Monday. Christmas Day, and the next following working day, and all days appointed Ijv proclamation to be observed as days of general fast, huniiliii- tion or thanksgiving. 23. (1878.; From and after the commencement of ^'""' "f ^•="- this Act, the Bills of Sale Act, 1854, and the Bills of Sale Act, 186G, shall be repealed : Provided that (except as is herein expressly mentioned with respect to construction and with respect to renewal of registration) 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. Any renewal after the commencement of this Act of the resfistration of a bill of sale executed before the commencement of this Act, and registered nnder the Acts hereby repealed, shall be made under this Act in the same manner as the renewal of a registration made under this Act. The .section does not authorize renewal of a bill of sale, tin- registration of which was void for want of renewal at the commencement of the principal Act.'*' (a) Kf Kmery, 21 Q. 11. D. 405 ; :t- W. R. 21. Sec, 18. 242 THE BILLS OF SALE ACTS, 1878 AND 1882. [1882.] M o^o^T 18. (1882.) This Act shall not extend to Scotland [1878.] iSxteut of Act. or Ireland. Extent of Act. 24. (1878.) This Act shall not extciid to Scotland or to Ireland. Bills of sale given and registered in Ireland are regulated by the Bills of Sale (Ireland) Act, 1879 (42 & 43 Vic. c. 50), and the Bills of Sale (Ireland) Act (1879) Amendment Act, 1883 (46 Vic. c. 7); cited together as the Bills of Sale (Ireland) Acts, 1879 and 1883. Under the law of Scotland it is necessary, in order to give a charge on corporeal moveables, that they should be delivered to and placed in the possession of the creditor ; but if a domiciled Scotchman, resident in London, gave a duly regis- tered bill of sale of the furniture of his house, that would be a complete and effectual transfer of the property without delivery.'" (6) Se Queensland Mercantile, &c., Co. [1891], 1 Ch. 546; 60 L. J. Ch. 579 ; 64 L. T. 555 ; 39 W. R. 447. THK HILLS UF SALK ACTS, 187H AND 1882. 243 SCHEDULES. SCHEDULE A. [1878.] 'Affidavit on renewing Registration, see p. 256.] secK-.n ii. SCHEDULE B. .-^. , IFortn of Register, see p. 255.] Secuon u'. SCHEDULE. n ftfl9 1 IForm oj Bill of Sale, see p. 260.] swt.ouit. APPENDIX. APPENDIX Part I. T UK BILLS 01' SALE ACT, 1878. (41 & 42 Vict. o. 31.) AN ACT TO CONSOLIDATE AND AMEND THE LAW FOR PREVENTING FRAUDS UPON CREDITORS BY SECRET BILLS OP SALE OP PERSONAL CHATTELS. [22»ui Jnly, 1878. WHEREAS it is expedient to consolidate and amend the law relating to bills of ."(ale of personal chattels : Hk 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. This .\ot may be cited for :ill purposes as the Bills of Sale .\ct, short Title 1878. 2. This Act shall come into operation on the first dav of .lauuar\' ^ (311 • Comtnofii-«'. one thousand eight hundred and seventy nine, which dav is in this mont Act referred to as the commencement of this Act. [31] 3. This Act shall apply to every bill of sale executed on or after Applirniiim the first day of Januarj' one thousand eight hundred and seventy- ' ' nine (whether the same be absolute, or subject or not subject to any trust) whereby the holder or gnmtee has power, either with or • The marjonHl fljruros refer to the iiaircs wIutc the Rectinn is printed in the text. Appendix, 248 THP] bills of rale act, 1878. Pt. I \vithout notice, and either immediately or at any future time, to seize or take possession of any personal chattels comprised in or made subject to such bill of sale. t^Oj 4. In this Act the following words and expressions shall have the meanings in this section assigned to them respectively, unless there be something in the subject or context rei^ugnant to such construc- tion ; (that is to say), of terms. The expression "bill of sale" shall include bills of sale, assign- ments, transfers, declarations of trust without transfer, inven- tories of goods with receipt thereto attached, or receipts for purchase-moneys of goods, and other assurances of personal chattels, and also powers of attorney, authorities, or licences to take possession of personal chattels as security for any debt, and also any agreement, whether intended or not to be fol- lowed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shall be conferred, but shall not include the following documents ; that is to say, assignments 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 business of any trade or calling, bills of sale of goods in foreign parts or at sea, bills of lading, India warrants, ware- house-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 transfer or receive goods thereby represented : l^^^J The expression "personal chattels" shall mean goods, furniture and other articles capable of complete transfer by delivery, and (when separately assigned or charged) fixtures and growing crops, but shall not include chattel interests in real estate, nor fixtures (except trade machinery as hereinafter defined), when assigned together with a freehold or leasehold interest in any land or building to which they are aflBxed, nor growing crops when assigned together with any interest in the land on which they grow, nor shares or interests in the stock, funds, or securities of any government, or in the capital or property of incorporated or joint stock companies, nor choses in action, nor any stock or produce upon any farm or lands which by virtue of any covenant or agreement or of the custom of the country THK HILLS OF SAI.K ACT, IH7H. '.'lu Appendix, Pt I ou^ht not U) b« roiiKivi'd from any farm wlior<5 tlin siinm nr<- at the tiino of inakiiif^ or fcivin^ of Nai-ii hill of hrIo: Peraonal chattels sliall lie docmiHl to 1k> in the " npparoni ^"2 . pofl8cs8ion" of the person making or jjivin^ a bill of nftle, so !onj< as thoy remain or arc in or upon any house, mill, ware- honsp, building, works, yard, land, or other premises tx'cupiod by him, or are nsod and enjoyed by him in any jilace what- soever, notwithstanding that formal possession thereof may have been taken by or jfiven to any other peraon : "Prescribed" means prescribed by rules made niuier the pru- visions of this Act. [891 5. From and after the commencement of this Act trade machinery Appliratimi shall, for the purposes of this Act, be deeraeil to be personal chattels, ?n.Vil.\I,'i. and any mode of disposition of trade machinery by the owner diincry. thereof which would be a bill oi sale as to any other jiersonal chattels shall be deemed to be a bill of sale within the meaning of this Act. For the purposes of this Act — "Trade machinery" means the machinerj' used in or attached to any factory or workshop ; Ist. Exclusive of the fixed motive-powers, such as the water-wheels and steam engines, and the steam- boilers, donkey enpines, and other fixed appur- tenances 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, 3rd. Exclusive of the pi]ios for steam, eras, and water in the factory or worksliop. The machinery or effects excluded by this sec- tion from the definition of trade machinery shall not be deemed to be personal chattels within the meaning of this Act. "Factory or workshop" means any premises on which any manual labour is exercised by way of trade, or for purposes of gain, in or incidental to the following purp(W08 or any of them ; that is to say, (a.) In or incidental to the making any article or part of an article ; or (b.) In or incidental to the altering, repairing, ornament- ing, finishing, of any article ; or (c.) In or incidental to the adajiting for sale any article. Appendix, Pt. I. [94] Certain iii^tiuments gu-iucf powers of distress to be subject to this Act. 250 THE BILLS OF SALE ACT, 1878. [98] Fistiues or growing croj^s not to be deemed sepaiutely assigned when the land passes liy the same instalment. L119] Avoidance of uiii'egistered bills of sale in pertain cases. 6. Every attornment, instrument, or agreement, not being a mining lease, whereby a power of distress is given or agreed to be given by any person to any other person by way of security for any present, future, or contingent debt or advance, and whereby any rent is reserved or made payable as a mode of providing for the payment of interest on such debt or advance, or otherwise for the purpose of such security only, shall be deemed to be a bill of sale, within the meaning of this Act, of any personal chattels which may be seized or taken under such power of distress. Provided that nothing in this section shall extend to any mort- gage of any estate or interest in any land, tenement, or hereditament which the mortgagee, being in possession, shall have demised to the mortgagor as his tenant at a fair and reasonable rent. 7. Xo fixtures or growing crops shall be deemed, under this Act, to be separately assigned or charged by reason only that they are assigned by separate words, or that power is given to sever them from the land or building to which they are affixed, or from the land on which they grow, without otherwise taking possession of or dealing with such land or bnilding, or land, if by the same instru- ment any freehold or leasehold interest in the land or building to which such fixtures are affixed, or in the land on which such croj^s grow, is also conveyed or assigned to the same persons or person. The same rule of construction shall be apjilied to all deeds or instruments, including fixtures or growing crops, executed before the commencement of this Act and then subsisting and in force, in all questions arising under any banlu'uptcy, liquidation, assignment for the benefit of creditors, or execution of any process of any court, which shall take place or be issued after the commencement of this Act. 8. Every bill of sale to which this Act applies shall be duly attested and shall be registered under this Act, within seven days after the making or giving thereof, and shall set forth the considera- tion for which such bill of sale was given, 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 nnder the law relating to bankruptcy or liquidation, or under any assignment for the benefit of the creditors 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 authorizing the seizure of the chattels of the person by whom or of whose chattels such bill has been made, and also as against every person on whose behalf such process shall have been issued, shall be 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 THK BILLS OK SALK ACT. 1878. L'51 Appendix, Pt. I. which, at ur after the time uf tiliux tho piitiiion fur bankruptcy ur liquidutiuu, or of the oxocutiuu uf such lutHiiii^niuont, or of srtOHHiuii of tho itoniou luakiiifj^ 8uch bill of salo (or of any ptn-son af^iiiHt whom tho pnKM'sH lvaif t^ale. (I.) The execution of every bill of sale shall be attested by a solicitor of the Sui>reme Court, and the attestation shall state that before the execution of tho bill of sale the effect thereof has Ixjon exi)lained to the grantor by tho attesting solicitor : '*' (2.) Such bill, with every schednle or inventory thereto annexed [178J or therein referred to, and also a true copy of such bill and of every such schednle or inventory, and of every attestation of the execution of such bill of salo, togetln-r with an affidavit of tho time of such bill of sah* being made or given, and of its due execution and attestation, and a description of the residence and occupatiun of the person making or giving the same (or in case the same is made or given by any person under or in the exooution of any process, then a description of the residence and occupation of the pei-son against whom such jirooeHM issued), and of every attesting witness to such bill of sale, shall bo presented to and the said copy and affidavit shiill be filed with the registrar witliin seven clear days after tho making or giving i>f such bill of sale, in like manner (a) Repealed, Bills of Sul« An (ls7s) AiniMidment Act, \<«3, m.t. 16. (6) /»., BOC. 10. Appendix, Pt. I. 262 THE BILLS OF SALE ACT, 1878. [192] [197] [203] 1205] Reuewal of registration. [209] Form of register. as a warrant of attorney in any personal action given by a trader is now by law requii-ed to be filed : (3.) If the bill of sale is made or given subject to any defeasance or condition, or declaration of trnst not contained in the body thereof, such defeasance, condition, or declaration shall be deemed to be part of the bill, and shall be written on the same paper or parchment therewith before the registration, and shall be truly set forth in the copy filed under this Act therewith and as part thereof, otherwise the registration shall be void. In case two or more bills of sale are given, comprising in whole or in part any of the same chattels, they shall have priority in the order of the date of their registration respectively as regards such chattels. A transfer or assignment of a registered bill of sale need not be registered. 11. The registration of a bill of sale, whether executed before or after the commencement of this Act, must be renewed once at least every five years, and if a period of five years elapses from the registration or renewed registration of a bill of sale without a renewal or further renewal (as the case may be), the registration shall become void. The renewal of a registration shall be effected by filing with the registrar an affidavit stating the date of the bill of sale and of the last registration thereof, and the names, residences, and occu- pations of the parties thereto as stated therein, and that the bill of sale is still a subsisting security. Every such affidavit may be in the form set forth in the Schedule (A) to this Act annexed. A renewal of registration shall not become necessary by reason only of a transfer or assignment of a bill of sale. 12. The registrar shall keep a book (in this Act called " the register ") for the purposes of this Act, and shall, upon the filing of any bill of sale or copy under ihis Act, enter therein in the form .set forth in the Second Schedule (B) to this Act annexed, or in any other prescribed foi-m, the name, residence, and occupation of the person by whom the bill was made or given (or in case the same was made or given by any person under or in the execution of process, then the name, residence, and occupation of the person against whom such process was issued, and also the name of the person or persons to whom or in whose favour the bill was given), and the other particulai's shown in the said schedule or to be prescribed under this Act, and shall number all such bills registered in each year consecutively, according to the respective dates of their registration. TiiK iti[,i,s OK SALK A CI', ih7n i'5a Appendix, Pt I Upon tlu« iM'tfiMtnitioii i)f imy artidiivit of rciiowiil tin* like entry flhall l>o iniido, with tlio iitldition of t)i<' (Intt; and niinibur of the Inot prcviouH i-niry roUitin^ to tlio Hiinii' bill, and tli«» bill of hu'.o or copy ori^finally filed hIhiII bo thereupon nuirked with the number affixed to Huch affidavit of renewal. The rejfistrar hIuiII also keep an index of the names of the jfrantorn of rej^isti'red bills of sale with referenee to entries in the re^'ister of the bills of sale j^iven by each siieh f^rantor. 8uoh index shall be arnin);ed in divisions corresponding with the jetterH of the al]>habet, srform all or any of the duties of c. 77. the registrar. [213] It. Any Jud^je of the High Court of Justice on beitij; satislied Rcciillcatiou that the omission to rejjister a bill of sale or an affidavit of renewal *^"' '* thereof within the time prescribed by this Act, or the omission or mis-statement of the name, residence, or ocou]irttion of any person was accidental or due to inadvertence, may in his discretion order such omission or mis-statement to be rectified by the insertion in the register of the true name, residence, or occupation, or by extending the time for such registration on such terms and conditions (if any) as to security, notice by atlvertisenient or otherwise, or as to any other matter, as he thinks lit to direct. 15. Subject to and in accordance with any rules to be made Knii.v .it under and for the purposes of this Act, the registrar may order a ncf.oH. 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. 1218] 16. Any person shall be entitled to have an oftice copy or extnut I'oiuox luny * tin L'kkotj Ai* of any registered bill of sale, and affidavit of execution filed thor*"- with, or copy thereof, and of any affidavit filed therewitli, if any, or registered affidavit of renewal, upon paying for the same at the like rate as for office copies of judKinenls of the Hij^h Court of Justice, and any. ropy of a registered bill of sale, and affidavit pnrportini? to be an offiee copy thereof, shall in all courts and U-fore all nibitratom or other persons, l>e admitted as primA facie evidence thereof, ami of V Appendix, Pt. I. 25-4 THE BILLS OF SALE ACT, 1878. [225] Affidavits. [228] [232] Collection of fees under 38 ct 39 Vic. c. 77, s. -'G. [233] Order and (lis]if)sition. 3i \- Xi Vic. c. 71. [240] Rules. 36 A -AT Vic. ". Cli. m S. 39 Vic. r24i] Time tor retristratioii 241] Repeal of Acts, 17 \ Is Vic. c. Mi. 20 A: 30 Vic. C.Ofi. the fact and date of registration as shown thereon. Any person shall be 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 ; <"' such payment shall be made by a judicature stamp. 17. Every affidavit required by or for the purposes of this Act may be sworn before a master of any division of the High Court of Justice, or before any commissioner empowered to take affidavits in the Supreme Court of Judicature. Whoever wilfully makes or uses any false affidavit for the pur- poses of this Act shall be deemed guilty of wilful and corrupt perjury. 18. There shall be paid and received in common law stamps the following fees, viz. : On filing a bill of sale ... ... ... 2*-. On filing the affidavit of execution of a bill of sale ... ... ... ... ... 2s. On the affidavit used for the purpose of re- registering a bill of sale (to include the fee for filing) ... ... ... ... 5s. 19. Section twenty-six of the Supreme Court of Judicature Act, 1875, and any enactments for the time being in force amending or substituted for that section, shall apply to fees under this Act, and an order imder that section may, if need be, be made in relation to such fees accordingly. 20. Chattels comprised in a bill of sale which has been and con- tinues to be duly registered under this Act shall not be deemed to be in the possession, order, or disposition of the grantor of the bill of sale within the meaning of the Bankruptcy Act, 1869."" 21. Rules for the purposes of this Act may be made and altered from time to time by the like persons and in the like manner in which rules and regulations may be made tinder and for the purposes of the Supreme Court of Judicature Acts, 1873 and 1875. 22. When the time for registering a bill of sale expires on a Sun- day, or other day on which the registrar's office is closed, the regis- tration shall be valid if made on the next following day on which the office is open. 23. From and after the commencement of this Act, the Bills of Sale Act, 1854, and the Bills of Sale Act, 1866, shall be repealed : Provided that (except as is herein expressly mentioned with respect to construction and with respect to renewal of registration) nothing (a) Repealed in part, Bills of Sale Act (1878) Amendment Act, 1882, sec. 16. (6) Repealed, Bills of Sale Act (1878) Amendment Act, 1882, pec. l."). TIIK HILLS or S.\1,K ACT, 1H7H. 256 Appendix. Pt I. in this Aft Khali affoft any hill of hhIo i»xi'cut<'iiri-- iiioiit of this Ai"t, and aw rcpinls bills of sale ho executed the Ai'tx hereby repealed shall cuutinuu in force. Any i*onowal after the conimencomont of this Act of the re^iHtm> tion of ft bill of sale executed before the commencement of this Act, and rejfisterod under tlie Acts hereby repealed, shall be made under this Act in the same manner as the renewal of n roffistratiim made under this Act. 2 1. This Act shall not extend to Scotland or to Ireland. [3421 Rsleui of Art. SCHEDULES. SCHEDULE A. 8«:tio,. ll. I [.4. B.] of do swear that H bill of sale, bearing date the day of 18 [i/werf the date of the biW], and made between [^insert the tvames and descriptions of the parties in the original bill of «ale], and which said bill of sale [^or, and a copy of which said bill of sale, as the case may 6e] was rejfistered on the day 18 [umerf date of registration^, is still a subsisting security. Sworn, (J'c. SCHEDULE B. Sectior. II. Satis- faction No. By whom jfiven (or afiainst whom process iB8Uet the porMODul cliHttolN H|>(M.'itically ilrscrilx!*! in tlie Hiiid S4-Iil>(IuI«' ; anil sliall bi> void, t>X('c|it as against tliu f^rantor, in rcHpuct of any jtiTsonal chiittulH not ho Hpociticallv doHcribiKl. [831 .). Savo as heriMiiafter nuMitionud, a bill of walo mIihII In- vnid, Hill of Kni« i>oi , , II.'" •»"<•'•( uft«r- tsxcept aH against the grantor, ni re8|)ect of any |)Or8onal cliattulH ,|,.,,,|,ri-tioii an lo render a bill of sale void in respect of any of the followinf; thiny^s "^^ '" ' "*'" (that is to say), (1.) Any growing crops separately iissigned or churgetl wiiere such crops were actnally growing at the time when the bill of wile was executed. (.i.) .Vny fixtures sopanitely assigned or cliargcd, anil any plant or trade machinery whore such fixtures, jilanl, or trade machinery are used in, attached to, or bmught upon any land, farm, factory, workshop, shop, house, wareliouse, or other place in substitution for any of the like fixtures, plant, or trade machinery specifically described in the sehetlule to such bill of sale. [104] 7. Personal chattels assiirned under a bill of sale shall not l>e Hill "f ••"'p Willi poWlT lo liable to bo seized or taken possession of by the frnintee for any »oiic except in , . , ^, , ,, . " " certain event* other than the following causes :- - to lie void. (1.) If the grantor shall make default in payment of the sum or rirui sums of money thereby secured at the time therein prondetl for jiayment, or in the performance of any covenant or agreement contained in the bill of sale and necessarv for maintaining the security ; (2.) If the gnmtor shall become a bankrni>t, or suffer the said 1110] goods or any of them to be distrained for rent, niti'>, or taxes ; (3.) If the grantor shall frainluleiuly either remove or suffer 1114] the said goods, or any of them, to be removeil from the premises ; ( i.) If the grantor shall not, without reasonable excuse, upon [ujj demand in writing by the gmntee, produce to him his la>»i receipts for rent, rates, and taxes ; (.').) If execution shall have been levied against the go<»«ls ..f the [m] gnmtor under any judgment at law : Provided that the gnintor may within five davB from the sei7.un> " ' or taking possession of any chattels on account of any of the nlH.ro- Appendix, Pt. I. [1233 Bill of sale to he void unless attested and resrtstered. [156] Form of liillof sale. [175] Attestation. [207] Local regis- tration of con- tents of bills of sale. 32 & 33 Vic. c. 71, s. CO. 258 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. mentioned causes, apply to the High Court, or to a Judge thereof in chambers, and such Court or Judge, if satisfied that by payment of money or otherwise the said cause of seizure no longer exists, may restrain the grantee from removing or selling the said chattels, or may make such other order as may seem just. 8. Every bill of sale shall be duly attested, and shall be regis- tered 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 arrive in England if posted immediately after the execution thereof; and shall truly set forth the con- sideration for which it was given ; otherwise such bill of sale shall be void in respect of the personal chattels comprised therein. 9. A bill of sale made or given by way of security for the pay- ment of money by the grantor thereof shall be void unless made in accordance with the form in the schedule to this Act annexed. 10. The execution of every bill of sale by the grantor shall be attested by one or more credible witness or witnesses, not being a party or parties thereto. So much of section ten of the principal Act as requires that the execution of every bill of sale shall be attested by a solicitor of the Supreme Court, and that the attestation shall state that before the execution of the bill of sale the effect thereof has been explained to the grantor by the attesting witness, is hereby repealed. 11. Where the affidavit (which under section ten of the principal Act is required to accompany a bill of sale when presented for registration) describes the residence of the person making or giving the same or of the person against whom the process is issued to be in some place outside the London bankruptcy district as defined by the Bankruptcy Act, 1869, or where the bill of sale describes the chattels enumerated therein as being in some place outside the said London bankruptcy district, the registrar under the principal Act shall forthwith and within three clear days after registration in the principal registry, and in accordance with the prescribed direc- tions, transmit an abstract in the prescribed form of the contents of such bill of sale to the county court registrar in whose district such places are situate, and if such places are in the districts of different registrars, to each such registrar. Every abstract so transmitted shall be filed, kept, and indexed by the registrar of the county court in the prescribed manner, and any person may search, inspect, make extracts from, and obtain copiew of the abstract so registered in the like manner and upon the like terms as to payment or otherwise as near as may be as in the case of bills of sale registered by the registrar under the principal Act THK HIM.S OF S.\1,K ACT (1H7H) AMKMl.M KNT M'T, 1MH2. 2.i;> Appendix, iH. i. 12. Every bill of mile made or given in c-unMidrriitiitn of any Huni [211] niicliT thirty poundH slmll he voitl. "'". "' ''',''. , Vot'l l-'J. .\ll iierHoniil cliiiticls Hfizcd nr of whii-li |K)SBi>H8i<>n Ih taki-ii [2111 aftt-r the (•(iiiinieni-ement of thJH Att, nnder .ri8terc(l before or after the cotnnn'ucenient of r this Aet), Hhall remain on the premiKOB where tliey wore so seized or so taken pogsj'Hsion «if, and shall iint be removed or Hohl until after the expiration of live cleai* days from i he day thoy weri' bo seized or so taken posKe.ssion of. ' [215] 14. A bill of 8ule to which this Act ai)plie,s sinill be no protection ^^'^^^^ '^^^ nr.iUTt in respect of personal chattels included in sucli bill of sale which <''"'"^''» "»f"'""* but for such bill of sale would have been liable to distress under parodiiiil mieit. a warrant for the recovery of ta.xes and poor and other parochial rates. [217] 15. The ciLfhth and the twentieth section.s of the principal Act, Rei>eiil <>i pmi " ' ' . of Billoof Snip and also all other enactments contained in th<» principal Act which Ait. 1s7m. are inconsistent with this Act are repealeil, but this repeal shall not affect the validity of anythin specify any ]>articular8 in reference thereto, ujion jiayment of one shilling for each bill of sale inspecteatioiis of the parties, to tiie amount of the oonsiileration, and to anv further prescribed particulars. [222] 17. Nothing in this Act shall apply to any tiebentures issued by ^"^ Act'noi any mortgage, loan, or other incorponited company, and secnn-d Ui apply. upon the capital stock or goods, chattels, and effects of such comi)any. [242] IS. This .\cL shall not extend to Scotland or Ireland. Kxio&i .j( .\rt. Appendix, 260 THE BILLS OF SALE ACT (1878) AMENDMENT ACT, 1882. Pt. I. SCHEDULE. [156] Form of Bill of Salk. 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 sniu of £ now paid to A. B. by C. D., the receipt of which the said A. B. hereby- acknowledges [o)' ivhateve7- else the consideratioii may 6e], he the said A. B. doth hereby assign unto C. D., his executors, administrators, and assigns, all and singular the several chattels and things specifically described in the schedule hereto annexed by way of security for the payment of the sum of £ , and interest thereon at the rate of per cent, per annum \_or ivhatever else may be the rate^. And the said A. B. doth further agree and declare that he will duly pay to the said C. D. the principal sum aforesaid, together with the interest then due, by equal payments of £ on the day of [o?- whaterer else may be the stipulated times or time of payment^. And the said A. B. doth also agree with the said C. D. that he will l_here insert terms as to insurance, payment of rent, or otherwise, which the parties may agree to for the maintenance or defeasance of the security']. Provided always, that the chattels hereby assigned shall not be liable to seizure or to be taken possession of by the said C. D. for any cause other than those specified in section seven of the Bills of Sale Act (1878) Amendment Act, 1882. In witness, &c., Signed and sealetl by the said A. B. in the presence of me E. F. [_add witness's name, address, and description^. THE BILLS OK SALK ACT, \H'.H). I'tii Appendix, Pt. I. ill'; BILL^ OV SALK ACT, Ifi'.Ki, (5:i A .M Vict. .-. :>:i.) AN ACT EXEMPT CERTAIN LETTERS OF HYPOTHECATION FROM THE OPERATION OF THE BILLS OF SALE ACT. 1882. [ISth Au'jui'l, IHiJO. Hk it enacted by the Qneen's moat Excellent Majesty, by and with the advice and consent of the Lcjrds Sjiiritual and Teniponil. and Commons, in this present Parliament assembled, .uid l>y the antbority of the same, as follows : 1. An instrument ^iven or executed at any lime prior to such [174] deposit, rcshipment, or delivery as hereinafter mentioned, hypothe- lotu-'rJ oV ''hy]H>- cating or declarinfj trusts of imported goods during the interval thw"""" "•'">• iK>rt<"ort or delivered to ii purchaser not l)cing thi- purchaser giving or executing such instrument, sludl not be deemed a bill of sale within the meaning of section nine of tlu* Mills of Sale Act, 1882. i"' 2. Nothing in this Act shall affect the operation of section ^ . ^*^',,. , forty-four of the Bankruptcy Act, 1883, in resjtect of any gomlh l7Vic. c. »i. comprised in any such instrument as is hereinbefore descril>ed, if such goods would but for this Act be goods witbifi tin- riifriiiii.i' c,t sub-section three of that section. 3. This Act may be cited as the Bills -.f Sale Art, IHlHi r3Qi (.<) Atnonded. sec. 1, Bills of Snle Act. 1W)1. '**^' '^ '" *' Appendix, 262 the bills of sale act, 1891 Pt. I. THE BILLS OF SALE ACT, 1891. (54 & 55 Vict. c. 35.) AN ACT TO AMEND THE BILLS OP SALE ACT, 1890. [21st July, 1891 Bxemijtidiiof ^^ ^* enacted by the Queen's most Excellent Majesty, by and securities on with the advice and consent of the Lords Spiritual and Temporal, imported noodB ... from 41 & 12 and Commons, m this present Parliament assembled, and by the J^t U ViV''^^ authority of the same, as follows : [174] 1. Section one of the Bills of Sale Act, 1890, shall be amended so as to read as follows : An instrument charging or creating any security on or declaring trusts of imported goods given or executed at any time 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, shall not be deemed abill of sale within the meaningof the Bills of Sale Acts, 1878 and 1882. Sl.ori ifi^r.^ 2. This Act may be cited as the Bills of Sale Act, 1891. RULES OF llli; SII'KKMK COURT. 2t\:\ Appendix, Pi. I. KULKS OK 'I'lIK SUI'KKMK COlIiri'. ls83. The followin;^ Orders iiml ItulfH iimy Im) cited lis "The Uulen of llu« Suprorao Court, 1S83." They shull conu' into o|M3ratioii on thf Twonty-fourtli day of Oriolnr. 188;}, and sliull hIho apply, ho fur U8 may be pnicticablo (uuloss (itiu'rwiHc cxproHHly provided), to all proc'p«'y ««•«■. ^, Jnilioaniro (Olllcp*) .\rt, 1879. Hy sec. .">. tlic Ofticcs of ilie MntitorM of tlip yufCirH Itencfi. Commun Pleas, and Exrhei'vicc of tlu> hiiiiiiiioiiu uii tlial |km-hoii, uiul in cither case on proof t solicitor or party desiring his attendance shall dejiosit with him a sufficient sum of money to answer his just fees, diarges aii>( xi\>-. required hy the Rills of Sale Act (1878) Amendment Act, 1882, lo he transmitted to the rogistrav of a County Court, .shall he in the form given in the Appendix hereto. 4. AbKtract to be ae.aled and dati'd. The abstract .shall be seali d with the seal of the Bills of Sale Department of the Central Offici' of tho Supremo Court of Judicature, and dated on the day on whicli it is transmitted by post to the registrar of the County Conit named therein. 5. Abstract of re-regi:f Salr. Where a bill of sale has been re-rcgistored since the .list OctolM'r, 1882, or shall be re-registered hereafter under sec. 11 of the Bills of Sale Ai-t. 187S, an abstract of the re-registration, sealed and dated, shall Im* transmitted by jwst to the registrar of tho County Court to which such abstract sliould have beeu tranamittwl had the bill of sale '<() Form of Suinmoiw, j). 27 >. Appendix, 266 EULES OF THE SUPREME COURT. Pt. I. been registered under the Bills of Sale Act (1878) Amendment Act, 1882. 6. Notice of a satisfaction of a Bill of Sale to be transmitted to local registry. — Where a memorandum of satisfaction has been or sliall be written under sec. 15 of the Bills of Sale Act, 1878, upon any registered or re-registered cojjy of a bill of sale, an abstract of which has been transmitted to any Registrar of a County Court, a notice of such satisfaction, in the form in the Appendix hereto, duly sealed and dated, shall be transmitted to each of the registrars to whom an abstract of such bill of sale shall have been transmitted. 7. Abstracts to be numbered and filed. — The registrar shall number the abstracts and notices of satisfaction in the order in which they shall respectively be received by him, and shall file and keep them in his office. 8. Index, how to be kept. — The registrar shall keep an index, alphabetically arranged, in which he shall enter under the first letters of the surname of the mortgagor or assignor such surname, with his Christian name or names, address, and description, and the number which has been affixed to the abstract. 9. Satisfaction to be noted in index. — Upon the receipt of a notice of satisfaction, the registrar shall enter the notice of satisfaction on the abstract of the Bill to which it relates, and shall note in the index against the name of the mortgagor or assignor the fact of the satisfaction having been entered. 10. Searxh and inspection of ab.-ttnict. — The registrar shall allow any person to search the index at any time during which he is required by the County Court Rules for the time being to keep his office open, upon payment by such peition of one shilling ; and to make extracts from the abstract or notice of satisfaction upon payment of one shilling for each abstract or notice of satisfaction inspected. 11. Office copy of abstract. — The registrar shall also, if required, cause an office copy to be made of any abstract or notice of satis- faction, and shall be entitled for making, marking, and sealing the game to the same fee as is payable in the Bills of Sale Department of the Central Office of the Supreme Couit of Judicature, viz., sixpence per folio. 12. Authority to take oaths. — -Every fir.st and second class clerk in the Bills of Sale Department of the Central Office of the Supreme Court of Judicature shall, by virtue of bis office, have authority to take oatlis and affidavits in mattcr.s relating to that department. 28th December, 1883. RULES OF THK SL'l'KKMK COIKT. -jt;; Appendix, Ft I. Al'I'KNDIX. No. I. lAbstruct. Local Re/ HiUk «/ .S\i/e, nee p. 270. J No. 2. [^Xotice of Sutis/uclioii, i»t /•. ;i77.j CENTRAL OFFICK l'l{.\(TI('I'; KL'LKS. Settled 61/ the i'mctice Mfmtern, March, IHH4. As TO Sati.skaution ok Hills ok Salk. It the iittesting witness and deponent is a Kolicitor, and descnbed as suci), the entry of ttic .satisfaction will hv directed 1)V the master (the jiajiers l)einf^ otherwise correct) as of course; but uiidei- special circiinistaiiceH tlie master may accept any othei deponent, if satisfied that he is a iinjjx'r [lerson to attest and verify the signature and consent. RULES UNDER SECTION 2 OF THE CON- VEYANCING ACT, 1882.*" 1. Kvery requisition for an official search shall state the name nnd address of the person requiring the search to be made. Kverv requisition and certificate shall Ix- filed in the other whore the search was made. (u.) SectiDii 2 of the Conveynncinj? Act, 1nh2 (45 A Ifl Vic. c. 3H), ho fsir ittt it IN api)licH)>lo to tiill»of sale, in sh follows: (1.) Whert' auypoFKon rc<|iiircs, for (mri«mcH of thiH section, nearch to be miule ia the central office for eiilrieM of judRTnent**, y any Act, he may ileliver in the office a requiMitioii in that iK-half, referring to thi.s .section. (2.)" Thereuiion the proiK'r otncer 8hall dilifjently ninke the Hearch reijuired, and shall make mid tile in the office H eortif^cate HcttinR forth the result thereof, and office cojiics nf that eertificaio nhall he ii*nued on re(|iiiHitioii, and an office copy shall t>e evidence of the certificate. (3.) In favour of a purcha.sor, as atraiuMt pernoii.s int<•^c^to cii.se may be. (1.) Kvery retpii^ition under thi.s section shall l)e in writinir, signed hv the person making the same, specifyinj^ the luiuie aifainst which he desires search to bo made, or in relation to which he reipiires an nflice Ci>;iy certitlcme of result of seairh, nnd other sufficient jiarticulars ; iiud the persun niakiii(( any Buch reipiisition shall not l)e entitled to a search, or an office copy certillcatei», until he has satisfied the j)rnper officer that the sunie is reiiuired for the [lurposes of this .section. (5.) (fOneral rules shall Ik,- nm«le for the piirpiseK of this section, prescribitiff forms and contents of requisitions ami certiflciitos, and reKiilatin^ the practice of theoftlce, an said duly exetuto tlif said bill on the said day of 18 4. The said ivsides at [nUite residence at time of mcfuriifj affidavit'] and is [xtnte orrnpatinu |. 5. The name subscribed to the said bill of sale as that of the witness attesting the due execution then-of is in the proper handwritin^j of me this dejwnent. G. I am a Solicitor of the Sujireme Court, and it'side at 7. Before the execution of the said hill of sale by the sairl 1 fiiUv rx[il;iinril ici ihr iiutiirt' and effect then-of. Sworn at \ the day off 18 .) Before me, This Affidavit is Hied on behalf of (a) Hills of Kftlo Riven otherwise lUun ns .-ciiiniy iiiipear ittill to be re- Kulated by the principal Act, iind to tviinin' iitte.Htiition by i« Molicitor. The above forni is Kivf" '" the Appendix to H. P. C. »«H», nn nn nWrtnvtt on r«Ki»- Iratioa of bill of sale, but applies t<> bills nl" smIi- un.lor the principal Act. Appendix, 270 FORMS relating to bills of sale. Pt. II. No. 2. Affidavit on Registratimi of Bill of Sale, given othertolae than to secure payriient of money, with two Attesting Witnesses, one not being a Solicitor. 18 — . .—No. . 5ix tf)c W5f} Court of 3u?ti«. Division. I, of make oath and say as follows : — 1. The paper writing hereto annexed, 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 it bears date, being the day (rf 18 . 3. I was present and saw the said duly execute the said bill of salt- on the said day of 18 . 4. The said resides at [ufatp rr.-iiilpnce at time of swearinrj affidavit] and is [sfafe occupation], 5. The said bill of sale was executed in the i)resence of the attesting Solicitor, and was by him duly attested, and the said did, before its execution by the said , explain to him the effect thereof. G. The names and subscribed to the said bill of sale as that of the witnesses attesting the due execution thereof, are respectively of the proper handwriting of me this deponent, and of the said 7. I reside at and am a and the said resides at and is a Solicitor of the Supreme Court of Judicature. 8. The said and I, this deponent, are the only attesting witnesses to the said bill of sale. Sworn at the day of 18 . Before me, .\ Commissioner to administer oaths in the Supreme Court of Judicature in England. This affidavit is filed on b(>half of FORMS KK1,ATIN(; TO ltII,I-S (IF SALK. 271 Appeudll, Pt. II. No. :i. Ajfitittvit of ExfctUliin of aa ahmtlnti' Hill nj Snlf, Inj v'(iy iij lur'niory iiud Riceifit, iimlir rmrrati. IS . . Nu. . in lljr ilMfll) Court of :?»ii£(ttrr. DiVlsKiN. I, iiiiiki* DHili 1111(1 suy 118 I'liUuw.s : 1. The piiper writing inarkod "A," hen-to iiiiiioxcd, is u trui- copy of ail iiivt'iitory of "(oods, with a n-rcipt thereto attaclieil, andnl' (■very attestation of the exi>ciitif sale was made and j^veii and exeeiited 1>_\ the said [bailiff j on the day of , 18 , iiiulcr and l)y virtue of a writ of tier! facias issued «)ui cif the sai'l (") on the day of din;eie. 1 am a Solicitor of the Supreme Court, and roHide at, 7. Before the execution of the said bill of sale by the Biiid , I exjilnined to tin- nature an. I efifect thereof. Sworn at ~j the day of ^ 18 ,) Before me, A Commi.'isioner to adniiniHt^-r oaths in the Supreme Court of Judicjitare in Knjfhind. This atfidavit is Hied on behalf of (a) Court from wliicli j>i<">"-x i««iii'il. Appendix, 272 FORMS RELATING T(3 BILLS OF SALE. Pt. II. No. 4. Declaration hy Gi'antor against Incwnihrances. I, of do solemnly and sincerely declare tliat no receiving order has been made against me, and that I am not a bankrupt or liquidating debtor, and have not done or committed any act, matter, or thing, vrhereby or whereupon I am liable to have a receiving order made against me, or to be adjudicated a bankrupt, nor have I assigned my estate for the benefit of my creditors, nor have I conveyed, assigned, or charged the dwelling-house and premises aforesaid or any part thereof, and there are no judgments, executions, or incumbrances of any kind affecting the chattels and things specifically described in the schedule or inventory now produced to me marked "A," which said chattels and things I have this day by a deed or bill of sale bearing even date herewith, assigned to for securing to him the repayment of and interest thereon. And I further declare that at the time of the execution of the said bill of sale I was the true owner of all and every the said chattels and things, and that the same then were my own and absohite property, and that I then had in myself good right, full power, and lawful and absolute authority to assign the same to the said his executors, administrators and assigns in manner aforesaid, free from incumbrances. And further that all rent, rates and taxes in respect of the dwelling-house and premises aforesaid have been fully paid to the day of now last past. And I make this solemn declaration, conscientiously believing the same to be true, and by vii'tue of the provisions of the Statutory Declarations Act, 1835. Declared and subscribed at ^\ in the of this ( day of , in the year of our Lord 18 , Before me. s A Commissioner to administer oaths in tlie Supreme Court of Judicature in England. FORMS |{KI-AIIN(; ID lULl.s (IF SAI.K. J7:t Appendix, Pt. II. No. 5. Form 1)/ ItiyUter. {SeheditUi B. lilUs „/ S.d,- Art, 1878, sco /^. 255.) No. 6. S^iarch. '•' IK . -No. in tfjr ^tQlj Couii nf Juatirr. (Ruben's Bkn-ch Division. Search for Dated tho day of 1« (SifTiit'cl) (Addrt'HH) Agent for Soliciior for No. 7. Affidaclt on reneioimj Refjisiratum. {Schedule A, BHIh of Sah' Act. 187H. s.:- />. 2r.5.) No. 8. Ajfidavitfor Ordrr to enter Memorandum of Satisfaction. 18 .- .-No. In tbr Wsb Court of ;?)usttrr. (^lkk.n's Bk.vcu Divisio.N. I, of make oatli anil say as follows : — 1. On the (lay of 18 , I was preseiii and saw of 8ifn> ^ ''<" connent herennto annexed marked "A" to an order that a Meni>>nmdum of Satisfaction should he writt'-n upon the refjistered copy of u l>ill of .sale dated the day of 18 , and mud.- between of and of the deht for which such bill of sale wns made or {^iven having been satisfied or discharged. 2. The name signed to the said consent is in the proi)er i and- writing of the said who is th.- wime ner-.n a> mentioned in the said bill of sale. '.i. The name set and subserilMHl iu< wiini*- (") K. S. C. lti«3, Aitp. <;. No. 27. Appendix. -'74 FORMS RELATING TO BILLS OF SALE. Pt. II. to the signature of the said is in the proper handwriting of me this deponent. 4. I am a and reside at Sn-orn at ^ tlie day of T 18 ' ,) Before lue, A Commissioner to administer oaths in the Supreme Court of Judicature in England. Filed on behalf of No. 9. Consent to Meinorandwn of Satisfadiort. I, of being the person entitled to the benefit of a bill of sale bearing date the day of 18 , and made between of the one part, and of the other pai-t, and given for securing the sum of £ a copy of which said bill of sale was registered on the day of do hereby certify and declare that all moneys secured by or due and owing in respect of the said bill of sale are fully paid and satisfied, and I hereby consent to an order that a memorandum of satisfaction be written upon such registered copy of the said bill of sale. Dated the day of Signed in the presence of No. 10. Stmt/mousfor Entry of Satisfaction on a Registered Bill of Sale.'-"' in t^tWsif Court of BuiSttcc. In the matter of a bill of sale by to dated the day of 18 , and registered on the day of IS . Let all parties concerned attend the Registrar of Bills of Sale at the Central Office, Koyal 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 l>ill of sale. Dated the day of 18 This summons was taken out by of To ((f) R. S. C, 18H:i, Apjic'^dix K, So. 5s. FORMS KKi.A'liNC I'o itiLi,s OK SAl.K. I'T.'. Appendix Pt II No. lOA. (tiil< r/nr I'litrij uf Sntiaf action on inattor ol" a hill of siilc liy lo ililtcd the (l(iy of U|)()ii lioaiinj; niid upoi- rriiding It is ordered that sntisfaetioii iio enterod on the al)ove-ineiitiono(l bill of sale. Dated the day of Appendix, 276 Pt. II. FORMS RELATING TO BILLS OF SALE, f^ Date of filing Affidavit of Renewal. 00 O II «"* Q'Sb o W 00 Date of In- strument. 00 Rate of Interest. Amount secured and how repayable. , £53§ Nature of Instrument and Consideration. tti o ^ - *" 1 ^ 0) a 1"" » o t. bo o ee a 1 1 i >« n '^ w 3 FOKMS RELATING Tn IJIIJ-S oF SALK. :i:7 Appeudix. Pt. II. No. 12. Notice of Hatig/adion.^'^ Kills (if Sale Kcffistry, Hoyiil ('oiirts of JiiHtico, LoikIoii. Kr^inttM-ed foe ro-ref^stereilj is Alisinict tniusmittwl IK Satisfaction entori-d IM 'r.\KK XKTICK THAT A mi'iiiorftiiduni nf satisfaction to the ahovf Bill of Rale wn-! entered on the re^jister on tho above date. (Siffiied) To the Heijistrar of the Couiitij Court of holdeit at Sent on the day of No. 12a. Onhr und>'r Sec U (1878). In tiic matter of a bill of sale made between ami , dated , and registered tlie day of 18 Upon the application of and reading th<' affidavit of filed day of 18 , li is ordered that the time for registerin^f [or re-registeringj the said bill of sale be extended until next inclusive, but this order to be without ))rejudice to the rights of piu'tiea act|iiired prior to the time when such bill of sale shall in- actually registered [or re-rogistered '. Dated 18 No. i:j. F.IK.M II.''' Declaration as to Purposes of Svarcli funiattitd in the Jiequisition. I declare that the above-mentioned search is required for ilw purposes of a sale [^nr mortgage, or lease, or a* the caxe may Iw], by A. B. to ('. D. (-1) App. No. 2, R.S.C, Bills of Sftle Acts, IH78 ft 1«8». (6) Ap|). to H\ilo8 iiniler hpc. 2 Conveyancitnf A«t. 1882. Appendix, 278 FORMS relating to bills of sale. Pt. II. No. 14. Form IV.(«i Iteqiiisitii))! for Senrcli, in floe Bills of t^ale Department under the Uonveyauciutj Act, 1882, ^ec. 2. ^^ujjrcmc Court of ^ulficaturr. Ce.vtral Office. Requisition for Search. To the Beijiatrar of Billx of Sale, Royal Courts of Justice, London. In the matter of A. B. and C. D. Pursuant to sec. 2 of the Conveyancing Act, 1^82, searcli 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 11.^ \_State if an office copy of the certificate is desired, and whether it is to be sent hy post or called for.} Signature, address, and f description of person > requiring the search j Dated No. 15. Form YIII.'") CeHificate of Search hy tlcc Registrar of Bills of Sale, u^ider the Courfijanciug Act, 1882. ^vqfrtmt Court of Buiitralurc. Central Office, Bills of Sale Department. Certificate of Search pursuant to .sec. 2 of the Conveyancing Act, 1882. In the matter of A. B. and C. D. This is to certify that a search has been diligently made in the Register of Bills of Sale in the name [or names] of (a) App. to Rules under sec. 2, Conveyancing Act, 1882. FOH.MS HKLATINC •|( » HILLS ( tF SALK. 27'.* Appendix, Pt. II fill- the poriixl fnnu IK |h \HttU iiu-liiHivi-, and tliat no iiiBtrumoiit hiiH honi n'ffimiTiMl i»r n'-irKiitercil uh u bill of khIo ill that immc [<>r in any our nr nmn- (if tlxiHi' iuiiih'm | liimiiu that perioci, or, and that cxci'pt tlie duHcrilted in tho hi'1u>«IiiU) hiTetn no instrumcMit has been rcyiHtercii or n'-rc^riMltTPd an a bill of mili' in that nanio | "C in any oni^ or nior<' of thosi- nnnioK | during tliu period aforesaid. Tmk SciiKuri.K. Dated No. Hi. Form XL(»» Ui'iluiHifion for duutinuatioti of S<'\ Ketpiisition for continuation of Searcli. ■/■'- the Clerk of Enrolmentx or The R<-il.i of Jnstici-, Londo,,, W.C. In the matter of -4. B. and CD. Pursuant to see. 2 of the Conveyaneing Act. IHHli, eontinm- the search for | ], made pursuant to the requisition datnl the day of 18 , in the name [or names I of fitim the (lay of to the day of I "^ both inclusive. Sifrmiture, nddres.'^. and "^ rson r h ^ Dated description of person requiring; the search No. 17. FoHM XI 1 "" ('< rfificntf of result <;/' Continued Hearth nmlcr thr Ci>iiirijiiiirti,)i Act, 1882. 8. 2. to he endorsed on orojinal Ceiilficate. This is to certify that tlie search ["<>/• searches' mentioned in the- within written certificate has [or \mvv] been diligently continued tn the day of 18 . and that up to and inchnlin^f thai date [except the mentioned in the schedule heii'to (tlmn a-ordx to be omitted where nothiitfi is foHiid)\ no deed or other docu- ment has been enrolled, or no instrument has lai-n rcKistored. or re-registered, a.s a bill of sale, or no certificate has Inn-n »ile«l. or no judgment, revival, decree, order, rule, lis pendens, jud^rmeiit at the suit of the crown, statute, recopiizance. Crown Ixind, inquisition, acceptance of oflBce. execution or annuity, has been n-gisfennl or re-registered in the within-nieniioned nann- ". in any one or mon of the within-mentioned names J. Dated (a) \\>i>. Ill Rules uurtcrMTC. i, CoiivfjiiiuiuK .\ci, I-*-:.'. Appendix, Pt. III. APPENDIX. VXRT III. Xo. 1. Statutory Forno of Bill of Sale. See Schedule, Bills of Sale Act (1878) Amendment A t, 1882, p. 2Go Xo. 2. Bill of Sale — Concise Farm. ^^i^ intitlXtXXXt made the day of One thousand eight hundred and Between of of the one part and of of the other part Witnesseth that in consideration of the sum of £ now paid to by the receijjt of ^vhieh the said hereby acknowledges he the said doth hereby assign unto his executors administrators and assigns all and singular the several chattels and things specifically described in the schedule hereto annexed by way of security for the payment of the sum of £ and interest thereon at the rate of per cent, per annum And the said doth further agree and declare that he will duly pay to the said the principal sum aforesaid together with the interest then due by equal payments of £ on the day of and the day of And the said dotii also agree with the said that he will at all times during the continuance of this securit}- insure and keep the said chattels and things insured against loss or damage by fire iu the sum of pounds at the least And will pay all rent to become due and payable by him in resj^ect of the premises on which the said chattels and things or any of them now are Provided always that the chattels hereby assigned shall not be liable to seizure or to be taken possession of by the said for any cause other than those specified in section seven of the Bills of Sale Act (1878) Amendment Act 1882 In witness whereof the parties to these presents have hereunto set their hands and seals the day and year first above written. Signed and sealed by the said in the presence of me y Add witnesi'a itame, addrens and description, J THE SCHEDULE. PRKCEDKNTS OF HILI.s (iF SAhK. ZH\ Appendix. Pt. Ill Nu. 3. Hill nf Sdir — ('inicisc Form, n-illi jjnivrr of S.il< . (rt)lSl {lltirnturr nmdf tbo tlioiiBitiKl ri^'lil liiindroil aiiil IJptwocii ..f (if the oiR- part and of of the other ])art Witiu'sseth thai in ('onsideratioii of the hiiim <•( JK now paid to by the receipt of wliicli the said hereby acknowled^jeH ho the said doili hereby assign unto hiH executors adtninisiratorH and asHi^ns all and Hiiif^ular the several chattels anil thin^H Hpeeitieally described in the schedule heret<» annexed liy way of Hecurity for the payment of the sum of JK and intcrrest thereon at the rate of per cent, per anniiin And tlie said doth further ajfree and declan' tliut he will duly pay to the suit! tlie principal sum afcjresaid together with the inteivst then tine on tin- day of And the said doth alsouf^ree with the said that he will at nil times durinjf the continuance of this security insure and keep the said chattels and thinj^s insured against Iosh or damage by tire in the sum of £ at the least in the joint uanies of the said ami the said'"- And will punctually pay all i-ent to become due and jiayablc by him in respect of the premises on which the said chattels and things or auy of them are. And also that in any of the events specified as causes of seizure in section seven of the Hills of Sale Act (1878) Amendment Act. 1882, it shall be lawful fm the said liis servants or agents to enter into and upon the premises on wliidi the said chattels and things or any of them are and to seize or take jK)KseHsion of the said chattels and things and after the expinition of five clear rech wi-re hiUI to have in. claim to the l)eneHt of the policy. (LecK .-. Whiieley, > K.|. 1 1,1 ; 36 L. A Ah. 1*2. 1* W. R.5,"W; It h.T. N. S. 472.) Hy the t'onveyHiicinjf Act, Itsl. ^e^•. ii (•<) nil money received on iin iusturancc elTccteil undtr the mort>;i«Ke deed ..r under ;lie .Vet hhall. if the mortKiiffce bo requires, Ihj iipplied by the mortiruKor in niakiM- •■-"1 '' • •-- • >■ ilHmH;;c in respect of which the money 'k received ; (4) without pn-; tii>ii to tlic contniry imiKitted hy law, or hy upeciiil contmct, h nii: • that hII money received on nn in.suniiicc l>c iipnlicd in or t'lwaf! money due under hio mortgage. Appendix, 282 PRECEDENTS OF BILLS OF SALE. Pt. III. 1882 In witness wlicreof the parties to these presents have here- unto set their hands and seals tl»e day and year first above written AiU uititenx'K Signed and seak'd by the said Haute, addrcKx . , , n itHddetcylpfio,!.] in the presence ot me THE SCHEDULE. No. 4. Ahsolntu Bill of Sale. — Concise Form.'"'' Ci)iiS Jrniicnturr made the day of One thousand eiglit hundred and Between of the one part and of the other part Whereas the said has agreed with tlie said for the absolute sale to him of the and effects specified in the schedule hereunder written for the sum of Now this indenture witnesseth that in pursuance f)f tli(! said agreement and in consideration of the sum of to the said paid by tlie said (the receiiit of which the said hereby acknowledges) he the said as beneficial owner doth hereby convey and assign nnio tlie said all and singular the said and effects To hold the said and effects unto the said liis cxectitors administrators and assigns absoluteh- In witness whereof the said parties to these presents have here" unto set their hands and seals the day and year first above wi'itteir Sigjicd se.aled and delivered by the said in my presence the effect of the above-written bill of sale having been explained to the said before his execution thereof by me the attesting .soli- citor. THE SCHEDULE. {a) Absohjtf hills nf sale are still irovcrned by the principal Act, .and woulil appear to rcqiiin' :irtestatioii aud registration. If trivcii to .secure the payDiour, of money, thouirh alisolute in form, they would he void, as an infringement of 8ec. 9 of the Amendment .\ct. PRECEUKNTs or nii,i,s <)K SALK jvj Appendix, Pt III. N.). .-,. /;/■// ../ S,ilt;t'ri>,u fli< Sli>r![}\ ../ ii(' ih'iusaiKl I'i^lit liiiiidrcil ami Hetwi-i-n lit' Kwjuiri', Hiyli Shiuiff of tlif (.oiiniy oi' (lieix-iimfler culled the ►'"i'l shen'ff) of thi' ime jiart iukI of (lii'it'inaftcr called the puicliiiMii) of ilic otlur |iurt Wlieniis a writ of fieri faciiis issniiij^ out of tin- DivJMion of jli'r Majesty'H Hij^li Court of .luHtice din-i-tcd to the sheriff wuk received at the ottict> of the uniler-sheriff of the Haiti county com- inandiu^ the KhcrifT that he slioiild eause to be levii.-d of the j^ootls and rhatrtls of within his bailiwick a certain debt of which had n-covind ii^iiuRt him in the said division together with the Huni of for interest damaj^cH costs and cliarpes which the suiil had snstained ancl expondeil by reason of his suit And whereas the sheriff hath by virtue of the said writ seized and taken in execution certain ^oods and chattels of the said being in and upoTi the nu-ssuajfe buildings and premises now in ilif (x;cupation of the said situate and being in the county aforesaid and liatli caus(>d the same goods i chattels to be api)raised by a jterson of competent skill who hath valued the sam(< at i he sum of And whereas ^recite ofder fur priratf .sulr] Now till-- itidcnture witnesseiii thai in consideration of the sum of upon the execution of (u) By sec. 145, B. A., 1883, where the shorifl sells thn sjufMls of u ilehtor iintlcr iiii execution for a sum exfoediiiir £20 (inchiflinu IpithI inciilrntal I'xponses), the Mile sluill, unless the ("ourt from wliicli llio process issiied otlierxviM- ordi-rs. Ih- inaUe liy jtulilir miction, and not l)y bill of snlo or ]irivate contriK-t, itud sliiiU In' pulilicly iidvertii,<-cril)e the practice on applyinfr for leave, ami tlie notircR re<|uiro) : unless, it seems, the wamiiit is illetral "ii the fBverseil restitution was ordered (Goodyere r. hice. Cro. Jac, 2MJ), nor can a ••herilT iiinke ii valid ctmlmcl f-.r sale of the Roods of a jiidtfinent debtor amiinst whom he holds a writ of JS. /'■>. until he has actuallv seized the i^oods (rj-ji. Hall, >■■ Townseiid. U Ch. D. l.t:!^ :;h W. R. 550; 42L. T. 102). .\ bill of sale from the sherifT, 0iit thereon has been duly paid iij) to the dav of last And wlu-i-eaH the said has ajfreod to pnv to the said thi- said Hiim of u|m>ii httviiiff such assi^rnnieiit at* is luTeinafter contained of the- uaid Huni of and the securities for the same Now this indent un- witnesseth that in ])urHuance of the said afrrecnient and in ron- sidoration of at or uj)on the execution of these presents l>y the said paid to the said the receipt whereof is hereby acknowU-d^'cd lli- the sjiid dotli hereby assign unto the said his executors administrators and assipns Ail that the haid principal sum of now reitminiiiff due and owinp to the said as aforesaid on the security of the sai*! indenture and the interest now due or to become due for the same And also all and sin^^ular the said several chattels and thint's assif;ned by the said recited indenture And all tlie estate ripht title interest claim and demand of him the said in to or upon the said premises or any part then'of To hold the same respectively unto the said his executors administrators and assigns Subject nevertheless to the proviso or right of redemption of tlif said several premises on payment by the said his executors or administrators of the said sum of with interest as aforesaid And the said doth hereby for himself his heirs executors ami admiDistrators covenant with the said his executors adminis- trators and assigns that the said debt or sum of is still due and owing on the security of the said recited indenture And that he the said hath not done or suffered or In-en knowingly party or privy to any ect deed matter or thing wher«>by the said several chattels and things hereinbefore expresseii to U- liereby assigned are is or may be impeacheil incunibcn-d or afft'Cted in title or otherwise howsoever or whereby the wiicl his exi-ciitors administrators or assignii might or could l>e jirevented from recovering th«> said sum of hereby assigned or any part thereof And the sai i«s K Appendix, Pt. III. 286 PRECEDENTS OF BILLS OF SALE. and keep indemnified the said his executors and administrators of from and against all costs charges damages and expenses whatsoever which shall or may become payable by the said his executors or administrators for or by reason of any action or other proceeding which shall or may be brought or prosecuted in respect of any act matter or thing done or to be done committed or suffered in respect of the said recited indenture or these presents In witness whereof the said parties to these presents have hereunto set their hands and seals the day and year first above written. Signed sealed and delivered by '^ the said in the v presence of j Received the day and year first above written of and from the above-named the sum of being the consideration money above ex- pressed to be paid by him to me Witness No. 7. CONTESTED CLAUSES. Clauses in accordance with the Form. Assignment of chattels ... to hold the same by way of security for payment in the manner hereinafter appearing of the sum of £500 and interest thereon at the rate of 60 per cent, per annum. And the mort- gagor doth farther agree and declare that he will duly pay to the mortgagee the principal sum aforesaid, with the interest then due, by twelve equal monthly payments of £41 13s. 4d. on the .... now next, and on the .... of each and every succeeding month until the whole of the said sum and interest shall be fully paid. ,\iid in default of payment of any instalment then that the mortgagor will pay interest thereon at the rate aforesaid from the date when such instalment shall become due until full payment thereof.'"' (a) Goldstrom tj. Tallerman, 18 Q. B.D.I. A covenant to this effect J8 uecest-ai^y where the rate of interest exceeds five per cent., lor in the absence of a covenant to pay interest on the principal sum, or any part of it remaining unpaid after the day named for repayment, interest is recoverable only as damages, and will be limited to five l^er cent. (Goodchap r. Roberts, It Ch. D. 49; 42 h. T. 66(> ; 28 W. R. 87(1.) t'ormerly there might have been added a covenant that interest in arrear might be cupitalized lit half-yearly rests, the bill of sale thus becoming a security for compound interest for the period for which interest was in arrear. (Clarkson v. Henderson, 28 W. R. 907 i9 L. J. Ch. 289; W L. T. 20.) PKECKDKNTS OF ItllJ-S OF 8ALK. .'s7 Appeildll. Pt. III. Afn^emoDt to pity principal hiiiii, witli iiiirn-Ht, at tho rulv <>f Ik. in thc> £ per inontli, by ni«'.H li(lalcfninl«'t» or hiw iimhorizod n^'otit tli'- aaid receipts .... [ntatutory proviMo].'" .\>frt>omcnt by fjnintor . . . . tii pay riMit, nitt-H iind tu.xi-H of any M.-rtBTm**'* nu'BHiiiiK"' or priMiiisi'H wlu-reoii the aHsivrned oliattclH may be. And bIho '"'* to kci-p the chattclH inHiired .... And thai oji defaul'. it nliall be lawful for the ^ranter to kcrp on foot thr said inhurnnce and char(;i' the cost thereof and interest at the rate of pi r annum to the jfrantor, and the same sindl be considered as included in this security. And that the ffrantee may i>ay all rent, rates, taxes, char>;es, aHseBsments and out- goins^H at any tim«' due and jtayable in resi)ect of tlie premises in which the j^ootls may be, and thercujion all such payments, together with interest at per cent, per annum, shall be a change upon the chattels aRsijfiird which shall not be redeen»ed until full |)ayment of all such sums and interest .... And that the grantor will on demaneforo ai»|>oinU'd f'T payment [statutoni />rorino").''' (u) Turner r. t'ulimii, :«J W. R. 278. (i) Gol.lHtrom r. TiiUernmn, 18 Q. H. P. 1 : •/. R«-nl. \c., Advaiiro Co. r. C1««f«. *» Q. B. n. 304. ^ {c) Exp. StuiifonI, rr Hartier, 17 g. H. I). Sbii. (rf) BrijfgS r. Pike. 6« L. T. 637 ; 61 U. J. y. H. 418. Appendix, Pt.III. ilaiiitenauce ol' security. 290 PRECEDENTS OF BILLS OF SALE. Agreement by grantor from time to time dui'ing continuance of the security to replace such of the said chattels and things as shall be worn nnt by other articles of equal value so as to keep up the total value of the said chattels and things to the present value.'"' Aud will not permit or suffer the said chattels and things or any part thereof to be destroyed or injured, or to deteriorate subsequently to the execution of these presents in a greater degree than they would deteriorate by r>?asonable use and wear thereof, and will whenever any of the said chattels and things are destroyed, injured or deteriorated, forthwith replace, repair and make good the same .... \^Poiuer of seizure on default, inter alia, of performance of any of the coi'eriaii^s.]'*' And so long as any money shall remain owing on this security, will not remove any of the said chattels and things from the said dwelling-house in the schedule mentioned, without the previous consent of the grantee, except for necessary repairs, and will replace any articles damaged or worn out with others of equal value, to be included in this security. ''"' . . . And will keep the said chattels in good and substantial repair, and in perfect working order, and insured .... and will duly and punctually pay all premiums or moneys necessary for effecting and keeping up the insurance on the first day on which the same ought to be paid, and will, on demand, produce to the grantee the policy or policies of insurance and the receipt for every payment, and that if default shall at any time be made by the grantor in effecting or keeping up such insurance, or in keeping the chattels or any part thereof in good and substantial repair, it shall be lawful for the grantee to insure and keep insured the chattels or any part thereof in any sum not exceeding and 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 the time being for that purpose, and that all moneys expended by the grantee for such purpose, together with interest at £5 per cent, per annum, 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. And {jpower to seize on events vpntioned in sec. 7 and 2);•o^•^so].'''' And will not without consent remove or suffer to be removed any of the siid chattels and things, or do any act whereby they may be prejudi- cially affected. And that the grantee may at reasonable times enter on the premises, to view, inspect, and take inventories of the chattels. . . . . And will not do anything whereby he ... . may have execution levied, but will preserve and keep the said chattels and things (a) Consolidated Credit and Mortgage Corporation /■. Gosuey, 16 Q. B. D. 24. (it Farber v. Cobb, 18 Q. B. D. 494. (< , Seed V. Bradley [1894], 1 Q. B. 319. ((/) Topley f. Cor.sbie, 20 Q. B. D. 350. PRECKDKNTS OF HILLS OK SALK. 'M\ Appendix, Pt. IIL ■uie uiul uiijnjuri'd [^potrvr to itnip fur ittututoru cauKfiJ. ProvJdod thaitho uhiittols and things bIiuII bi- lu'ld Hud puHHesHud by the grantor witliuut any let or hindrance from tho gruntco, until tnkou ]K)8fiL'Miion uf in consequi'iire of the breach uf any of the covenants heroin contained, and tiiut the hunie fthull not be liable [Ktntutnfii ;)r"i"»«o].'«' Power of seizure in cano the j^r^ntor mIiuII dd i,r miIT' "f them.'" Provided ulwavs that it shall be lawful for the mortgagees at any time •'t>«frof or times hereafter for any of the causes specified in the seventh section of the . . Act, but for no other causes whatever, without giving any previous notice to the mortgagor of their intention in that behalf to take possession of all or any of the fixtures, chattels and things for th«- tiuH' being subject to this security, and for that purpose, or for any other pur- pose connected therewith, to have at all reasonable times full liberty of ingress, egress and regress into and from any of the premises wherein the same may be, and every part thereof, and, if necessary, to break op<'n any outer or inner doors and windows thereof, in order to obtain admit- tance for that purpose, and to retain possession of all or any of the said fixtures, chattels or things, either there or in any other j>laee to which they may think fit to remove them, so long as they may think fit, or at any time to give up and retake and resume such possession without being responsible for any loss or damage which may arise thereby to the mort- gagor, but until possession shall be so taken or retaken, the said flxtun-h. chattels and things shall i-emain in the possession of the mortgagor or hiH assigns."*' . And tiiai the power of sale conferred upon the Power of mortgagees by the Conveyancing and Law of Property Act. 1H81. sbnll l»e exercisable by them in every respect a* if the twentieth section of the said Act had not been enacted, and the mortgagees shall stand |>o»80b«mI of the proceeds of any sale made by them upon trust to retain thereout the said principal sum. or so much thereof as may for the time heiuw' (a) Bxp. Pope rf Paxton, «. Rawlinjrn, re Cleaver. \H Q. H. D. t«). (.<) 9o twick -. Hillier. M S. .I.iWl > Tillott r. <}o«tM»e. Hil. lt«7, Matliew A fnv c, JJ. (MS. note) ; cf. LiverjMX)!, Sec, Co. r. Uirlinnl.Mon, 3 T. L. R. Wi. {«) Ezp. Offlcial Receiver. .•-• Morritt. IH Q. H. D. 2J2. 292 PRECEDENTS OF BILLS OF SALE. remaiu unpaid, and the interest then due, together with all costs, charges, payments and expenses incurred, made or sustained by the mortgagees in or about entering upon the said premises, and in discharging any distress, execution or other incumbrance on the said fixtures, chattels or things, or any of them, and seizing, taking, retaining and keeping possession thereof, and in or about the carriage, removal, warehousing or sale (including the cost of inventories, catalogues, or advertising) thereof, or any part thereof, and to pay over the surplus (if any) of such proceeds to the mortgagor.'"' And that .... it shall be lawful for the mortgagees, their servants or agents, to enter into or upon the premises in which the said chattels and things or any of them are or shall be, and to seize or take possession of the whole or any part thereof, and after the expiration of five clear days from the day of seizing or taking possession, to remove, sell and dispose of the same, or any part thereof, for such price or prices as can reasonably be obtained, either by public auction or private contract, and out of the sale -moneys to retain the principal sum aforesaid, or so much thereof as for the time being may remain unpaid, and the interest then due, together with all costs, charges, payments and expenses incurred, made or sustained in and about entering upon the said premises, and in discliarging any distress, execution or other incumbrance on the said chattels or things or any of them, and seizing, taking, retaining and maintaining possession of the same or any part thereof, and in and about the carriage, removal, warehousing, valuing or sale (including the cost of inventories, catalogues or advertising) of the said chattels and things, or any jiart thereof, and to pay over the sui'plus, if any, to the mortgagor . . . . And that this assignment shall be void if the principal sum aforesaid, together with the interest thereon, shall be paid to the mort- gagees as herein provided.'*' And with power for the grantee to sell the said chattels and things by private treaty or public auction on or off the premises . . . J'^ Agreement that upon payment of the principal sum and interest and any expenses which the grantee may incur in lawfully seizing and removing the chattels assigned, and any cost which he may properly incur in defending and maintaining his rights hereunder, this security shall be void. And further, that if the grantee shall become entitled to seize the chattels he and his agents may enter and remain upon any premises where the chattels may be, and if necessary break open doors and windows in order to obtain admission, and after the expiration of five clear days from the (lay of seizure, may remove the chattels and sell them by public auction or private contract, and retain out of the proceeds so much of the principal sum as may then remain unpaid, and the interest then due, and all costs (a) J^xp. Official Receiver, re Morritt, 18 Q. B. D. 222. iO) Exp. Rawlings, re Cleaver, 18 Q. B. D. 489. ((•) Bourse V. Wall, 39 W. R. 510. I'HECKDENTS f)F HILLS OF SALK. 2W Appendix, pt in. and ezpoDHes wliicli In- iimy incur iih afdn-Miiiil, luid ii1h(i unv rmt, niN-" mid taxoa which ho niay pay in rcHpoct i)f t)i<- )ir<-iniH<-H wlifn- thi* Hikiil rhatU^ls may bo.'"' Agreoments by t^rantor . that he will during the continnant) of thi> secnrity duly and regularly i)ay the rent. rat«'H ami taxcH payable by him in rcspoct of tht> premises, and pr«Mluee to the grantee u|M)n demand ia writing the last receipts for such rent, rates and laxeH. Pro- vided istattitorij prociao] that is to say [^atattitory cauups vf seizure m-t out]. Provided further that if the chattels and things hereby assigned shall be seized or taken possession of by the grnnteo in conseciuence of the breach of any of the covenants herein contained, the grantee shall be at liberty to remove or sell tlie same or any jiart thereof by public auction or private contnict, at the expiration of five clear days from the day of such seizure or taking possession.*** (^laiuien not in accordance with tin- Form. Assignment of all and singular the chattels and things specihcally A-sn{nmont no* described in the schedule hereto annexed, together with all other chattels and things the jiroperty of the mortgagor now in and about the premises aforesaid. 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 promises of the mortgagor (to which the said chattels and things or any part thereof may have been removed) whetlier brouglit there in substitution for or renewal of or in addition to the c-hattels and t}iiiii.'s hereby assigned ....''"' Assignment of all and singular tlie chattels ami thing's specilu-ailv described in the schedule hereto annexed, and also all other chattels and things which may at any titne during the continuance of this security bo sabstituted for them or any of them pursuant to the covenant herein- after contained. [No covenant for stthstitul ion insiTtril. I'mri'r to *eisf, 4'<"., for causoa »perijied in ncc. 7".]'''' Assignment of all and singular the several chattels and things speciti- cnlly described in the schedule hereto annexed, now in and about the Maid farm and premises, together with all the tenaiit-riglit valuation, goodwill, tillages and interest of the inoiigagor in and to the said farm ami premises ''' Assignment by way of security for payment in manner hereinafter n„nuii. appearing of £115, together with the sum of I'lo for agreed amount of interest and bonus, making together the sum of Jti:W . . . Agreomont (rt) Lumlcy r. SimmonK, 34 Ch. D. 898. (i) We&rdale Coal and Iron Co. c. Hoilson [IWHJ, 1 Q. M. M*. (c) Thomas r. Kelly, 13 App. Cases BOO. ((f) Hadden r. Opponhcim, 60 L. T. 002. (<•) Cochrane r. Bntwistle, 25 Q. B. D. 116. Appendix, Pt. III. i04 PRECEDENTS OF BILLS OF SALE. lo pay £130 by t^velve equal monthly instalments of £10 IBs. 8d., at specified dates. Provided always [statutory proviso]. Also that if the said chattels and things or any of them shall be seized or taken possession of in consequence of a breach of any of the covenants herein contained, the grantee shall be at liberty to remove or sell the same or any part thereof at the expiration of five clear days from the day of seizure '"' Assignment by way of security for the payment of the sum of £50 and interest thereon at the rate of £17 10s. for three years. . . Agreement to pay the principal sum aforesaid, together with the interest then due by 36 equal monthly instalments of £1 I7s. 6d (*' Agreement for payment of the principal sum and of the capitalized interest thereon by instalments as therein mentioned, being at the rate of sixty per cent, per annum Declaration that on breach of any of the covenants, all moneys secured by the bill of sale shall immediately become due and be forthwith paid. Provided, &c.('"' Assignment by way of security for payment of £350 and interest thereon at the rate of £15 per cent, per annum payable weekly. Agree- ment that the grantor will duly pay to the grantee the principal sum aforesaid including the interest then due by equal weekly payments of £5 on the Tuesday of each and every week commencing September 4th, 1888, and from and after the before-mentioned date so long as any of the prin- cipal sum shall remain unpaid will pay intei'est thereon at the rate afore- said on the 4th day of each and every month as the said principal moneys become due. '''''' Bill of sale between grantor and four sets of grantees to secure different debts owing to each at different times, with agreements with each set of grantees to pay their respective debts declaration that in case of default in payment of any sum thereby secured, or of any other default, it shall be lawful for the grantees to seize and sell the goods assigned. <*' Assignment as "beneficial owner."""' Agreement to pay the principal sum and interest then due within 24 hours after demand in writing '«'' Similar agreement to pay 48 hours after demand.'*' Similar agreement to pay upon demand in writing . . . .'■' {a) Mj-ers V. Elliott, 16 Q. B. D. 526. (A) Blankenstein v. Robertson, 24 Q. B. D. 543. (c) Davis i: Burton, 10 Q. B. D. 414 ; 11 Q. B. D. 537 ; Roe v. Mutual Loan Association, -56 L. T. 631. (d) Curtis c. National Bank of AVales, 5 T. L. R. 338. (e) Melville c Stringer, 13 Q. B. D. 392. (J'j Exp. Stanford, re Barl>er, 17 Q. B. D. 250. ig) Clemson v. Townsend, 1 Cabab(5 & Ellis, 418. (A) Bishop V. Beale, 1 T. L. R. 140. (t) Hetherin>,ton r. Groome, 13 Q. B. D. 789 ; Maekay c. Merritt, 31 W. R. 433. PRKCKDKNTS OK H1I,I,S OK SAl.K. SOo Appendix. Pt. III. Bill of Half by way t)f iiidoiiinity, f,'nnit<»r ii^r«-i'injf lliiit if tho gnuit< < i- ■i.imh.i^ . MJiull bo obliRed to pay the debt, the (^rantui- will ropny tho amouiit t< tlio ffnintoo within Boveii (liiys after (If'maiid ill writinjj .... «••' power in dufaiilt to seize and sell tln< j^oods.'"' Ill coiiHidi-nitiun of Mit- grant ci- hiivinf:^ at the jrniiitor'H n*quent iK-coim- ffUAruntt-e and of £4U money owing by the grantor to ihr grantee, the grantor assigned chattels, &c., by way of security for tin payment of tho sum of £40, uud for any moneys the grant*^} might Iw calli'd upon to pay in respect of the said guarantee and interest thereon at the rate of 5 per cunt, per annum. And the gmntor agreed to pay to the grantee the principal sum aforesaid, and any furtlui sums a.s aforesaid, together with the interest then due, by monthly pax • ineiith of ,fc2 on the hrst of every month '*' .\greeiiu-iit that grantor will on demand produce to the grantee liih MiunUsuMncc <>l last receij)t8 for rent, rates and taxes, and will keep tlu' assigned promiKe*. insured, and on demand ])roduco to the grantee the receipt for the current premium for such insui-ance, and that in case he shall make default in linrforinance of any of the covenants or shall become bankrupt or enter into liquidation or compound with his creditors, tlie principal sum afore- said, together with the interest then due, shall become iramediatels payable without the necessity for any demand of payment [ntdtuti.ri. Agreement by grantor to pay rent, rates, taxes, or other impositionh aud forthwith after every payment to produce and deliver tt the mortgagee the receii)t8 for the same .... Power of seizure ... or it the grantor shall make default in the performance of any of tht covenants therein contained, or cominii any l>rea(h thereof. l^.statutory proriVo].'"" Agreement by mortgagor ... to deliver to the mortgagee the receipts for rent, rates, taxes, and other imiiositions, payable in resiwct of the premises, when demanded, in writing or othenvise . . . Ann further that all the foregoing agreements are nocossarj- for maintaining- tlie security [^atatutory proi't(»o].''' Covenant to pay principal and interest by nionthl\ instalments, until the principal and interest shall be fully paid, and also so long as thr principal sum shall remain unpaid to pay interest upon tie «'«id clebt (a) Sil)ley V. Uigg.s, l.". (J. B. U. ai». (4) HurUcs r. Little, 18 Q. U. U. M. 17 Q ». D. 1>H. (c) Rnrr r. Kiug.sfonl, 50 L. T. m61. (d) Eti>. PcariO, re Willittiuh. .16 Cli. D. 850. («) Davis r. Burton, 10 Q. B. D. lU ; 1 1 Q. B. D. M7 ; cf . Kurbcr r. Oobb, IH g. B. D. 4»< if) Dresser r. Townsend, 81 b.T. .1. i'lo ; if. rxy. UnwlinjfH. rcClewvor, H Q. B. D. 4»* Appendix, 296 PRECEDENTS OF BILLS OF SALE. Pt. III. Payments. Agreement to pay rent, rates, taxes and outgoings of the premises where the chattels or things are or shall be within seven days after the same respectively become payable and that if the grantor shall neglect or refuse to pay the said rent, rates, taxes and outgoings, within the said seven days or on the expiration thereof, or to produce to the mortgagee the respective receipts for such payments, it shall be lawful for the grantee, if he shall think fit, to pay any rent, rates, taxes, and outgoings which may then be due and owing, and all sums of money so paid by the grantee, together with interest thereon at the rate aforesaid, computed from the day of payment up to the actual day of repayment shall be charged on the chattels and things, and shall be recoverable in the same manner as the principal moneys and interest thereby secured. And further, that the chattels and things shall be liable to seizure for any of the causes specified in section seven of the Bills of Sale Act (1878) Amendment Act, 1882. Provided [^statutory proviso'].''" Agreement for further assurance by the grantor for himself and every other person claiming any interest in the chattels assigned or any of them (») After reciting a certain indenture, agreement by grantor to perform the covenants and stipulations contained in the said recited indenture. . . . . \^not appearing in Bill of Sale] J ''^ Agreement to pay all interest on mortgages, if any, payable in respect of the premises where the goods assigned now are or may be removed to with the grantor's consent .... Declaration that on the moneys secured being paid or satisfied the indenture and any document signed by the grantor relating to the loan shall remain in the custody of and be the property of the mortgagee.''" Power of seizure if the grantor shall remove, or suffer the said chattels, and things, or any of them, to be removed from the premises. . . . . [_statvAory proinso].'''' Power of seizure if the grantor shall do or suffer any matter or thing whereby he shall render himself liable to become a bankrupt '-^^ Power of Power of seizure if the grantor shall take the benefit of any Bankruptcy KeiJsnre. ^^^^ (g) (a) Real and Personal Advance Co. i: Clears, 20 Q. K. D. 304; Bianchi c Ufiord, 17 Q. B. D. 484. (b) Liverpool Commercial Investment Society i). Ricliardson, 55 L. J. Q. B. 455 n. ; not followed, Sedwick c. Hillier, 31 S. J. 661. ( c) Lee V. Barnes, 17 Q. B. D. 77. (d) Watson p. Strickland, 19 Q. B. D. 391. (e) Exp. Pearce, re Williams, 25 Ch. D. 656 ; ef. Fm-ber u. Cobb, 18 Q. B. D. 494. (D Exp. Pearce, re Williams, 25 Ch. D. 656 ; cf . exp. Allam re Munday, 14 Q. B. D. 4.i. (g) Gibroy v. Bowey, 59 L. T. 223. PKECKDENTs nc HILLS OK SALK. 2«.»7 Appendix, Pt III ' I'owiT of hall- ill ovontH Hpocifiud hm cuuhos of Hei/.un- in ho or in({uii°u whvttier any nik')i default lias Ix-cn iiuidi uh afurosaid **' Agn-cnitMit that upon a sale by iIk- inortjfa^jci- tho recoipt or ^«•^l•l|ll^ of thf rnortgagoi) for tho purciiaHO-niuney shall be Hutticiunt diHcdiitrKf to all and cvi-ry purc-liascr or pnrcliaHcrs, who hIiuII not btj bonn(J to hcc to the »|iplicatioii tliort'of by tho inorlyagoo.'*' Power to luortj^apoc to sell the {^oodn assigned, or to have them valoed and to purchase them at such valuation, and receive the moneys Uj ariw from such sale or valuation '*' That the mortgaj^ce niay toi- the purpose of any such sali-. or for ])reservinj; the security, or for any othiir purpose, at anv time durint: the subsistence of the security, alHx such bills or |>lacardB having referenc<' to the said chattels and things as ht^ may think tit on any preniiB<'s for the time being in the occupation of tho grantor.'"" Power out of salc-monoys to reimburse the mortgagees the costs, charges and expenses of and attending such salu, including therein the full charges and commission of the mortgagoes as auctioneers, as if they were selling on behalf of the grantor.'" Agreement that on sale the grantee should be at liberty to retain the principal snm and interest, together with all uxpcnses attending the sale or otherwise incurred in relation to the security. . .'-'■ -Agreement for payment of all rates, taxes, and outgoings what.-oevci in respect of the house and j)rcmiso« on which the saiil chattels and tkini.'- now are. And that in default of payment the grantee may pay the same, and charge the amount to the grantor, and all expenses to which he may be put, which said sums shall be added to and form part of the security. . . . Power to seize for statutory causes. . . .'»' And also that it shall bo lawful for thomortgagoo to enter the premi«'-» where tho chattels may be, and to seize and take possession thereof, and to sell the same or any jjnrt thereof, if the mortgagor shall make default Provided, itc. [.-7oh/^or;/ ;>roi'»j(o.]<*' (i/) Blaiberf? o. Beckett, 18 Q B. D. 00; HhiilioiK ». I'Br»oim. 17 Q. H. D 06 (4) Gibbs p. Parsons, L. J. N. 18S7, »•;. (f) Lyon r. Morrin. 10 Q. B. D. 139. {d) Burden c. Daykin,3T. L. R..J2»i. (.-) Furber c. Cobli, 18 Q. B. D. 4»». (/) Calvert c. Thomas, 10 Q. B. I). L'i4. (.fl». INI) I-: \ . AiisdLiTK Bill ok Salk governed by principal Ait principal Act still unropoalcd as to... how Httcsteil iuhI rejjistenMi ... difference between conditional arid cannot be given as security when treated as mortpaf^e with ripht of repurchase f(jl]owed by hire apreejuent ... unregistered, valid between parties ... with possession need not be rejfistered effect of non-re<<'iHtration of Ahsik.xct ok Bill of S.alk — rules for searches aiid cojjies on local registration inspection of satisfaction to be entered in .. form . 31 , 3M 0, 2.MU notice of intention to commit not notice of 239 transactions after notice of . . . . . ... ' *Jt* transactions protected against "^' relation of trustee's title to .. 1'''0 adjudication or reccivintjordi.r when conclusive evidence of \''l uustumi)ed document to j)rov<,' ... ... ... ••. ••*' 300 INDEX. Address — of grantor of attesting witness ... of witness in attestation claaae Akfiuavit — of execution and attestation of bill of sale ... requisites of ... description of grantor and attesting witness where bill of sale may supply defects where incomplete on the face of it defective how rectified of explanation of bill of sale ... filing of renewal of registration description of parties ... on entering satisfaction rules as to stamp on ofiHce copies before whom sworn not before solicitor for party... presumed properly sworn if irregular when received deponent may speak on information and belief description of deponent in ... penalty for false forma 181 182 173 178 180 181 183 180 191 181 178, 191 205 206 216 225 228 218, 227 225 181,228 181 181,227 180 183, 226 225 269 Aj<'TKR-ACqUIRKD PROPERTY assignment of ... bill of sale of, by way of security now void growing crops ... substituted fixtures book debts licence to seize does not pass effect of bankruptcy on assignment of priority of bills of sale of marriage settlement of ... 85 i 85,164 93 93 70 87 217 89,201 63 INKKX. :i..f Al.KVT bill of Male l)V .. ;»<• .'.I lii'ii for cxiioiiBt^H iKJt l)ill <)»,»>(» where hill of Halo ^iven ... ... .">'.» for liill iif sale doubtful Honirity .V.t j^iviii;,' a rijrht in e(|uity to fhattels In. .'iS conferriiijf legiil right ... .'.s for liii-c not u bill of ualu ...... I'.' to hold ^(mmJk at aiiother'H diH|t!• givin«r |M>wer of distresH ... ... .'>7.'.'l with licence to seize ... ... ... r><» wlicn it can be onforced . ... Jin may .support Hub80(iuent deed ... ... ... .. .">',•. 1 4.'> for niarriuf^e settlement not within Acts ... ... HI ncjt to rejfister ... ... ... ... ... 1!H» collatenil whetln'r defeasance ... ... ... ICG what may be inserted in 8cliedule! hill of sale Itil wIkmi it avoids deed ... ... . I<>l none merely becauBo constructions dilTer liil' in descri])tion of j^rantor or attestin^r witne.-> .. ls;i in description c>f ji^ninteo . . H><'{ where bill of sale nniy explain 1H.'< Aei'vRKXT E'<>ssKS.sio.\ of frniunir. what is .. 7- diKtinct from reputed ownorHhiji 7!i actual and formal jwssos.sion 73 what takes diattels out of "i'-i what bills of sale affei;ted by 72 by husband ... .. 76 .\lTl,ICATIO\ OK A(TS principal .\ct •" amendment .Vet •*" to bills of Bale before princijwl Act .. ••!, 3H to bills of sale bi-fore .Vmondmont \<-' •^** 302 INDEX. Application' ok Acts — continued. to absolute bills of sale to bills of sale by way of security ... assignments of fixtures or growing crops marriage settlements ... to renewal of registration what chattels excluded from Acts to imported goods none to Scotland or Ireland AssIGXMEXT— what documents within Acts... for benefit of creditors not within Acts of ship or vessel not within Acts fraudulent wlien an act of bankruptcy ... of bill of sale does not require registration of after-acquired property ... assignee takes only grantee's rights... of choses in action notice of ... ... ...'... stamp on of bill of sale, form As.SIGXMK.VT FOR BENEFIT OF CREDITORS when a bill of sale when excepted from Acts when deemed for benefit of creditors may include composition deed or assignment to a surety when a fraudulent conveyance where defeating execution if by deed an act of bankruptcy not available to parties under Deeds of Arrangement Act -VssiRv.vcK OF Personal Ch.\ttels — when a bill of sale ... what so held when a receipt may be . . . JoctimenL within Acts must be 31, 38 32, 3« 9! I 61 205,241 90 174 242 42 . 41,60 41 .135,138 144 203 S3 .204,205 71 240 229 284 60 ♦kl (iO 60 60 61 61 61 61 60 42,53 53 46 42 lii'DKX. sot Attkstatiox— KHHOutiiil to viilitlity nf liill nf salt hy fnulihh' witnoHH nl)jt'Ct of nienning of i>f hill of sale ;;iv<'n us sfciirii \ i>l" nl)HoliitP hill of Hale .. iiiidcM- princijial Act statenK'iil (jf explanation in ... of solicitor when ncocsRary what solicitor niijcht attest liow stated in atlidavii must appear on form wlien proof of necessary form Attk.stim; Witxkss wlio may he must nut he party to hill of sale to bill of sale hy company when called to prtive bill of sale what will excuse attendance ... description in attitlavit every, must Iw^ described must be described <>n hill of sali- may de])0^e to informal inn ;itid belief Attoknmkxt - when :i liill of sale its effect .. where no express jtower of distress ... creates relation of lamllord .iiid tenant how far void when pood in hankrupicy to mortgagee in jiossession in second nmrtguge entitles mortgagee to summary judgment fixtures passed on mortgjige \vii h Auction - memo, of sale at, when a bill of sale licenroto sell hv, when a bill of sale i2:j, its, i7<; \S.\, IT'. l-'.-J, IT". IT'-. IT'i IT'i IT''. 17s is«i I7:» it:> IT.". IVI IS.' I!»l IT. I «i."» s 1» 304 INDEX. Al'ction — cirntinued. notice of to exclude apparent jiosscssion ... ... ... 74 when goods seized in execution must be sold hy ... ... 283 auctioneer taking bill of sale cannot agree for commission 172 auctioneer's liability for selling goods ... ... ... 200 Bailee — goods held by, witliin reputed o-wnersliij) clause ... ... 237 bill of sale by 33 B.VNKRL'PT included liquidating or compounding debtor ... ... 110 bill of sale by undischarged ... ... ... ... ... 36 capacity after arrangement or composition ... ... 36 may deal with after-acquired ])roperty ... ... ... 36 seizui'e on grantor becoming... ... ... ... ... 110 when grantor becomes bankrupt ... ... ... ... 110 reputed ownership of ... ... ... ... ... 234 Bankruptcy — acts of ... ... ... ... ... ... ... ... 144 within what time available ... ... ... ... ... 150 commencement of ... .. ... ... ... ...150,235 relation of trustee's title ... ... ... ... ... 15(> when bills of sale void against trustee ... ... ... 144 rights of second mortgagee in ... ... ... ... 153 what are protected transactions ... ... ... ... 150 securities not aifected by ... ... ... ... ... 153 stipulations to take effect on ... ... ... ... 56 forfeitui'e on ... ... ... ... ... ... ... 56 proof by secured creditors ... ... ... ... ... 153 district of London ... ... ... ... ... ... 208 Bankruptcy Act, 1883 — acts of bankruptcy under ... ... ... ... ... I44. fraudulent preference... ... ... ... ... ... 147 [jost-nuptial settlements under ... ... ... ... 03 reputed ownership ... ... ... ... ... ... 233 what bills of sale are avoided ... ... ... ... 144 jirotected transactions ... ... ... ... ... 15(> JTOof 153 Barge — a ship or vessel excepted from Acts... ... ... ... 64 INUKX. at.-, tMiK Bknkkhial Ownek jiHsij^nmrnt. US iivoiils hill iif siilr l''l liow far true owner ... ... .. "^l Bill ok Exch.vncjk. for ilelit KiH'uiL'il by bill of aalo ... ••• l'"> did not Hiispi'iul Kraiileo'B reineily ... '""^ U(jw may opiM-aU' as dcfi«uM)uu;t» ... ... ... ... !'•'•> I'liforcfublc ilioiigli bill of sale void ... ... ... ... 15''> Bill ok Ladi.ng — not within Acts ... •• " docuiiit'iit (i^ivin^; lii'ii on . ... ■■ '•'• BlLf. OF S.ALK who may givt! ... ... .. •• •*- by jHTSons under disability ... ... .. ... •*•* by pornoiis wiili limited iiitfrcHt ... ... .. ... 32, si by exeontioii ilebtor ... ... ... ... ... ^<5 by niidischarped bankrujit .. ... .. ... ... M by hiisbantl or wife ... ... ... ... ... ... 34, 80 by agent... .. ... ... ... ... ... ■■. M'' what is a Kt. 42 two claHBcs of ... ... .. ... ... .W, 42 must be an asHuniiife ... ... ... ... ... ... 42, !•; agrocmrnt for ... ... ... ... ■.. .■ •'>'•' what are exei'ptevasion of -Vets ... ... ... ... ... ■■. '3 when governed by i)rincipal or amendment Act ... .y airnMitliiiciii Act OXlcill Dl" ■J II Jl 7 IJiLLS UK Sai.k Act ;l87lS) Amknumknt A( t, 1HH2 object of short titk- time of coiMiiu'iK'i'imMil to 1)0 foiistniod with principal Act when avoidiri^^ hills of wilt- iihsolutdy wlu'ii avoidiiiK bill of aulo only us regards chattels to wiiat bills of sale it applies avoids for want of renewal how far retrospective no appliijition to bills of sale before principal Act Bills ok Salk Acis, 1890, 1891- object of short title time of foniincucenienl what instnitnenta excluded from Acts reputed ownership not cxcIikIciI Bonds— cannot be reserved on bill of sale agreement for wliether condition or defeasance Hook Dkhts delini'd not within Hills of Sale Acts cannot be incladcd in bill of sale assij^nient of after-ac(|uircd. . . when in rejmted ownership Mkkwkr's Lkask- when a Itill of sale? Bl'ILDINU AGKKKMKNT — with power of seizaro not a bill of sale not an agreoracnt giving a right in e(|uity or a licence to seize as seemiiv f..i- :■ debt :(li M(t III :t7 \xv i:u AS M7 :{h 171 M ■M> 171 L'lo lf.5 MM 308 INDEX. Buir.uixr, Agreement — continued. rights under against trustee .. seizure under, after bankruptcy giving additional rights on bankrnptcy annexing materials to land ... mortgage of, by builder to owner ... Cextral Office — hours of business rules for affidavits to be filed in Chattels — transfer of what are, within Acts description of in bill of sale to be specifically described in schedule what is specific description ... situation of need not be stated when in grantor's apparent possession when in his reputed ownership seizure of, in certain events only when may be removed to remain on premises five days after seizure Chattels, Real — not within Acts cannot be included in bill of sale ... when assignment of valid though bill of sale void Cno.sES inActiox--- not personal chattels within Acts share in partnership is expectancy in chattels rights under hire agreement not within reputed ownership unless trade debts . assignment of ... Clerical Error — does not invalidate bill of sale in copy bill of sale in affidavit or jurat does not affect specific description in schedule 56 56 56 56 57 222 263 227 32 67 79 77 79 185 72 234 104 211 211 67 78,164 158 70 70 71 71 240 71 179 179 .179,180 79 INltKX. ;wc.« Clerk - how (loscril)C'(l in iitliilavit uii n'j^iHtriition ... n'Hitlonce of 1 1> piirty's solicitor camicit taki- artiilavita ... C'ot,r.ATKK.\l. Skcurity — for hill of siile ... whi'ii H (U'fi'aaimcf ... may bo valid thoiij^h dfcil void raiiiiot lie ai'vori'd from debt... stamp oil CoMMKNiKMKNT — of banltrapicy of li(|nidatioii of .\c-ts (;oMl•A^^ — bill of sale by ... doBcription of iiamt' in bill of sale ... description of ri-sidoiicc of execution of bill of Halo by diroctors of, affixing soal not attesting witno.'^sos bill of sale to persons trading as .slian's ill, not personal chattels debotitnres by, not bills of sjile Composition — bill of sale by debtor after whether canse for seizure Condition — for ro-piircliaso lifter sale what within .Vets to be di'oint'd pari of bill of sale to appear in fili'd copy at variancr- with bill of sale ... omittcil whether de|iartiire from form COXSIDBBATION — what is, for bill of sale to be truly set forth in bill of sjile .. object of statement of misstatement not departure from form true nature of tninwiction must be stnud ... collateral bargain need not b«> net out ls7 1st l:it !'.•» I ".».•) JMi :n lii'i I si; I'.ll l!l| 21' I ■.\u no 111 ]'.rj I'.C l»l ir.:t 1 1'.. .119. !-':« l:tl |Ik( iL'<; ;?]u INDEX. C'o.vsiDEKATiON — Continued. nor object of loan wliat is a sufficient setting forth clerical error or inaccuracies in stating mis-statement evidence of fraud when evidence admissible to shew ... ... stay of proceedings, false recital of recital of covenant not given... liability stated as advance time of payment to be truh' stated ... meaning of jiayment ... old debt stated as now paid creation of new debt by bill of sale ... retention to pay independent debts... when money retained may be stated as paid money compulsorily retained retained for costs, cannot be stated as now paid nor to pay accruing liabilities costs paid by grantor to his solicitor for bill of sale cannot be less than £30 when £30 and part repaid how stated under Ann tiity Acts C O XSOLl 1 ».\TI0N — does not extend to bills of sale CoXVEYANCE when fraudulent when an act of bankruptcy voluntary, when void against ci'editors Co.NVEYANCING AcT — whether applicable to bills of sale ... searches and certificates under Covenants — in void bill of sale breach of, when cause of seizure construction of negative Ct'STOM- may rebut reputation of ownership.. of hiring goods when judicially noticed PAGE 125 125 .125,133 124 138 126 126 126 127 128 128 129 131 .131,132 133 .131,132 .127,131 133 211 211 134 202 138 144 141 172 267 .134, 158 104 107 237 237 237 INDKX. Sll Damauks- iiK'UHiirr of, for \vrnn;^'^fiil Hci/.iii'c on rt!cklo8H Kalf hy iiiort^^affiu- for iiijurii'8 to j^oods action for, to bi* trit-d in (^net-ii's Mi'iicli hivJHioii iindcrtakiii^ as to Datk — orrur in, of day for |iiiyim'nt of OXIVUtioM of junit ... of execution must be stated .. of payment uncertain... Dkbknti KK.s — what are of wlnit companies wlien not within Act.s .. rule before Amendment Act ... when covering deed within Acts assignment to trustees for debenture-holders operating as (•har<„'-c if covering? deed void ... Dkclakation ok Trust — wliat is a how createtl in diattels ih a bill of sali' to appear in tiled copy ... hyj)otli(!cation note when so held in ini])orteil goods Dkkds ok Arkaxge.mknt .\ctoflHH7 when tt) be registered. . when within .\cts when excepted from .Vn.-- Default what necessary before si-i/un' effect of seizing before rights of mortgagee on waiver of relief against ... In7 lot; ln7 lis I ''.7 17'.' 17'.' 17'.' 1C,7 224 22:< 4S 45 IHI' !•' 17J lu» I(»7. lOS 1*1 1<»7 lie. 312 INDEX. PAGE Defeasance or Condition — what is a ... ... ... 193 to be deemed part of bill of sale ... ... ... ... 192 to appear in filed copy ... ... ... ... ... 192 omission whether departui-e from fomn ... ... ... 163 collateral agreement for compound interest is ... ... 194, 196 so agreement varying terms of payment ... ... ... 195 negotiable instiniment for same debt ... ... ... 195 deposit of collateral security not ... ... ... ... 194 of security, what is ... ... ... ... ... ... 161 Delivery Order--- not bill of sale ... ... ... ... ... ... ... 41, 66 Demaxii — what is a reasonable ... ... ... ... ... ... 108 must be according to terms of deed... ... ... ... 106 when seizux-e before will be a trespass ... ... ... 109 may be waived by grantor ... ... ... ... ... 107 of receipts for rent rates and taxes .. . ... ... ... 115 for insurance policies or receipts ... ... ... ... 169 DE!S(RIITI0N — of grantor ... ... ... ... ... ... ... 181 of attesting witness ... ... ... ... ... ... 182 of several residences or occupations ... ... ...184,188 object of ... ... ... ... ... ... ... 181 what is a suflBcient ... ... ... ... ... ... 182 in affidavit .. ... ... ... ... ... ... 182 in introduction of affidavit ... ... ... ... ... 183 must appear on bill of sale witliin amendment Act ... 182 what errors may be rectified ... ... ... ... ... 183 when bill of sale and affidavit differ ... ... 183 of chattels in schedule ... ... ... ... ... 79 in affidavit of renewal... ... ... ... ... ... 206 of place where goods are ... ... ... ... ... 185 DlSADILITY— infancy ... ... ... ... ... ... ... ... 33 coverture ... ... ... ... ... ... ... 34 unsoundness of mind ... ... ... ... ... ... 34 bankruptcy ... ,,. ... ... ... .. ... 36 grantor not true owner ... ... ... ... ... 32,83 INDKX. :«>3 DlslHAlUiK (IK BaNKKUIT (liacharges dclit liiii imi m-iuiiiy -'' revokuB liceucr id si-izi- ••■'. -' ' iifTfct on )i8KiKiiincrit of, ariiT-aivjuircd proinTtv -!< hill of KiiU" f^jvoii Ijcfoic ... ... <"' instnimoiit witli |>owi'r of. wlicii a liill uf sale ... '.'1 fonniT rulo .. ... . ■ •'' on goods of grantor is i-huki' fur seizuro i '" grantee's right of indoniiiity against II-' power of, in hire agri'iMiuiii . ... •'•' after Ijankrnpti'v ... ... ... ... ' '•' goods subjei-l to ... ... ... ..• ''' goods exempt from ... ... ... Ill waiver of right of ... . Ill when grantee niav remove gootis to avoid ... 11- for rent, rates and taxes, hill of sale no protection againsi L'l.'i for rates, wlial nutv he seized for ... ... ... •• -1'' excludes reputed ownei-ship ... ... ... ... •■ -•*•• IJii.v Attestkk meaning of ... .. ' ' •' Estoppel — title hy •»- on true owner wliere sale by thinl jianv •'- does not bind creditors of grantor •'- on grantor of void bill of sale '•'' if person estopped from denying title i.-s true owner M KvtDEN'CK — proof of bill of sale and atHilavit ... -'•* when attesting witness must he lalled ... -^' certi6cute of registration not sutlicienl proof ... liM' adjoiu-nment where proof insutlicit-nl -'•' otfiee cojiies admissible --" when grantor's admissions an- ' '•* KXECUTIOX— debtor, ininsfer by .... •>•• creditor, wrongful seizure by... •• ''" sale under ... • •• -**"' 314 INDEX. PAGE ExECUTiox — continued . when to be by auction .. . ... ... ... ... .. 283 practice on private sales ... ... ... ... ... 283 transfers which defeat, not necessarily void ... ... 135 when bill of sale void against ... ... ... 119 on goods in bill of sale, cause for seizure ... ... ... 115 for rates postponed to bill of sale ... ... ... ... 215 when excludes reputed ownership ... ... ... ... 239 of bill of sale 179 at foot of schedule ... ... ... .-, ... ... 179 true date of , must appear in affidavit ... ... ... 179 former effect of, on unregistered bill of sale ... ... 122 affidavit of 180 forms ... ... ... ... ... ... ... ... 269 ExEcrxoR — may mortgage or pledge testator's property ... ... 35 when purchaser relieved from inquiry ... ... ... 35 bill of sale by ... ... ... ... ... ... ... 35 assignment for creditors by ... ... ... ... ... 35 security given before jirnbate valid ... ... ... ... 35 de son tort may set up bill of sale by deceased ... ... 35 Extension of Time — for registration... ... ... ... ... ... ... 213 for renewal ... ... ... ... ... ... ... 213 when granted ... ... ... ... ... ... ... 213 on what terms ... ... ... ... ... ... ... 213 against what persons .. ... ... ... ... ... 213 form of order ... ... ... ... ... ... ... 277 for payment ... ... ... ... ... ... ... 108 for removal ... ... ... ... ... ... ...113,116 F.\HM Stock — when not within Acts ... ... .. ... ... ... 67 how described in schedule ... ... ... ... ... 70 when removable against landlord .. ... ... 71,114,201 F.\croRS Act — effect of, on sales by grantor... ... ... ... ... 33 may protect sale by hirer ... .. ... ... ... 53 grantor not grantee's agent within ... ... ... ... 201 Factory — what is a ... ... ... ... ... ... ... 90 ( i-ade machinery in ... ... ... ... ... ... 89 INDKX. :{js FU.SK Prhtkntk (ibtiiininv; inlviiiicc mi liill nf hhIc by •• oil siile of ifcMids ill Itill nt" •r s;ilc on iirtidavit of cxiM-iitiiin unronowal on searching for I'ertiHoato of soarcli on inspection on Kling siitiRfnction power to imi)OHo collection of table of . . FiXTORES — what are when pcrnonal cliattels within Acts... not chatteLs for all purpoNcs ... when exceptcfl from Acts not subject to reiuitoil owner.ship })as8 with niortiraire of land ... by eijuitabk' deposit of deeds when fixed trade machinery ... may include movai)le parts of machinery ... mort^tfor's rij^ht to remove ... when not mortgagor's j)roi)erty mortgfifjee's ri<;ht to remove... wiien mortgagee can sell separately when deemed flej)aiiitely assigned when aBsnred with premises . former rule when bill of ."ale valio jriven applies to all bills of s:\le by way of secnritx L'(»l ■J-JH 21. L'JS l'2S 221 22'.» 2:i2 2:{2 22 S (i7. !•'.' 2:{i yi KK) '."I '.'2 In) lol |INI llNI. 1(12 111 l.->s I.V, l.'.T I.".: I. '.7 316 INDEX. PAGE Form of Bill of Sale — omtinued. except instruments within Bills of Sale Act, 1891 ... 157 covenants void if deed not in scheduled form ... ... 158 when security may be severed if void as bill of sale . . . 158 misstatement of consideration not variance ... ... 163 what is accordance with ... ... ... ... ... 159 test in ea;j3. Stanford, r« Barber ... ... ... ... 159 not in accordance with if of different legal effec^t ... ... 159 or if reasonably calculated to deceive ... ... ... 161 or if matter of substance omitted fi'om ... ... ... 159 what agreement.s may be inserted in ... ... ... 160 agreements for insurance ... ... ... ... ... 169 agreements for maintaining the security ... ... ... 169 not made so by agreement of parties ... ... ... 160 what is maintenance of the security ... ... ... 160 what is defeasance of the security ... ... ... ... 161 agreements not capable of enforcement ... ... ... 161 agreements at variance with Act ... ... ... ... 166 recitals in ... ... ... ... ... ... ... 161 assignment as beneficial owner void ... ... ... 161 inconsistent clauses in ... ... ... ... ... 161 agreements to perform stipulations not in deed ... ... 162 must not depend on defeasance in negotiable instrument... 162 description of chattels in ... ... ... ... ... 163 chattels real cannot be included ... ... ... ... 164 nor after acquired properly ... ... ... ... ... 164 must state a fixed sum secured ... ... ... ... 164 must show rateable interest ... ... ... ... ... 165 cannot include bonus ... ... ... ... ... 165 cannot include further advances ... ... .. ... 164 inaitplicable to guarantees ... ... ... ... ...164,169 may include charge for mortgagee's payments ... ... 164 terms of payment in ... ... ... ... ... ... 168 time of payment must be certain ... ... ... ... 167 cannot provide for payment on or after demand ... ... 167 covenants for title in ... ... ... ... ... ... 171 whether Conveyancing Act applies to ... ... ... 172 iigre<,'ments to seize and sell under ... ... ... ... 172 trust for sale moneys ... ... ... ... ... ... 173 retention of costs ... ... ... ... ... ... 173 INDKX. .'{17 Form ok Hii.i, hv Sale — continui-d. receipt clause in iittestntioii to ili'8cribo litteHtiii}^ wiiiiexK ... omisHJoii of proviso from contested clauseH in FoitMAi. Possession loavcH vjooils in j^rantor'H ai)piirent posscsBi'ni what is more than Forms [See Table of Cimtenfs] affidavit ou roj^istration of hill of sale the like with two attestinf^ witni'sse.-* aflidiivit on reifislcrinif receipt affidavit on renewal of ref^istration of register abstract of local refpst ration affidavit on satisfaction consent to meniorandiun of satisfaction summons to enter satisfaction of notice of satisfaction of order extending time declaration by "jrantor against incuinbrance of search of declaration of purposes of search requisition on search ... certificate of search ... certificate of continued searcii of bill of sale under ainendnieiit .\ci contested clauses in bills of sale of absolute bill of sale bill of saK; from sheriff assignment of bill of sale Fraid — in obtaining loan on bill of sale misrepresentation of rate of interest in obtaining substituted bill of sale for void do-cl by infant misrepresenting ago transfer of chattels obtained \>\ transfers without notice uf what are deemed signs of I* A III: 17:{ l«"^), i7;t I7:{ 2K»; ?:{ 2<;!t -'7.'l J7't L'7« i'7;< _'7s J7}> 1'7!» 2y'*i JS2 2«4 121)1 177 10.'. :n .{_' i;i;» 318 INDEX. F KA UD — continued. use of wrong name for purposes of... ... ... ... 189 by grantor in selling goods in bill of sale ... ... . . 202 Fraudulent Conveyance — under Statute of Elizabeth ... ... ... ... ... 138 whatis 138 what are signs of fraud ... ... ... ... ... 142 when for valuable considei-ation ... ... ... ... 139 when voluntary ... ... ... ... ... ... 140 when void against creditors ... ... ... ... ... 140 not necessarily because defeating execution ... ... 140 to what extent void ... ... ... ... ... ... 139 when good between parties and privies ... ... ... 138 what evidence admissible to prove ... ... ... ... 143 is an act of bankruptcy ... ... ... ... ... 143 rights of transferee of ... ... ... ... ... 139 Fraudulent Preference — what is a ... ... ... ... ... ... ... 147 former rule ... ... ... ... ... ... ... 147 is an act of bankruptcy ... ... ... ... ... 148 within what time available ... ... ... ... ... 147 rights of transferee ... ... ... ... ... ... 147 Fraudulent Removal — of goods by grantor ... ... ... ... ... ... 114 whatis ... ... ... ... ... ... ... ... 114 ground for seizure ... ... ... ... ... ... 114 as against landlord ... ... ... ... ... ... 112 not if by grantee to avoid distress ... ... ... ... 112 Gkntleman — where grantor or attesting witness so described ... ... 188 Gift- imperfect ... . ... ... ... ... ... 45 by grant or delivery ... ... ... ... ... ... 140 what are its essentials... ... ... ... ... ... 140 (iRANTOR when bill of sale void except against... ... ... ... 77,83 rights of until default ... ... ... 109 waiver of stipulations by ... ... ... ... ... 107 what default by warrants seizure ... ... ... ,,. 104 INDEX. ;{|!» VtKkXTOK— rnntiiiued. romodies for wroMjffiil Hi'izHii' ... |t"7 upplication by, to rrhtmiii Kiik-H I hi wlieii t'stoppud by \ oiil bill > I hftvinj< iio iiiti'reKt H-l Hiib.siHiuent sale by ... \'JU in possession, power to sell .. 1!K> tit lo of pnrchasor from . l.'(J< ». 20."> fraudulent removal by 111 ri^lit of to redeem ... ... ... ... 1U5 power to rojnovo fixtares . . ... ... ... ... K«> declarations of when admissible ... ... ... H-* name of, to be entered in Indo.K ... . . ... -10 Gkowinc; CKop.-i — when personal chattels former rule when severed ... when assigned with land when to be doomed separately assigned when bill of sale of valid if not described in schedule future when covered by bill of sale ... agreement to deliver against advances right of removal as against landlord or trustee right of grantee to, on surreniler of term ... .., IIW, Hiring Agkkk.mknt — when not a bill of sale where no property passes to hirer trne nature of tran.snction considered when an assunince or licence to seize when a colourable bill of sale following or accompanying sale option of purchase in of fi.xtures on mortgaged piemines assignment of rights under, not within .Acts sale by hirer of goods in power of distress in ..... meaning of month in . power to seize in ilefault, under 67 68 (X '.»;• t'7 <-,s. 71 114. Jol «•• ."id -.1 r.i lot :>2 .'.a M 320 INDEX. Hypothecation- • of chattels note accompanying deposit where bill of sale of imported goods excepted from Acts to secure a debt Imported Goods- how affected by Bills of Sale Acts, 1890, 1891 may be in grantor's reputed ownership Independent Title — when bill of sale void ... apart from bill of sale under hire agreement when bill of sale not stating contract admissibility of pi-oof of to proceeds Infant — contracts by mortgage not binding on misrepresentation of age by . . . Injunction — application for by grantor within what time applied for... setting aside when mortgagee can obtain ... when granted against mortgagee against removal of goods seized undertaking as to damages on In.spectio" — of bills of sale... of rejjister rules as to fees for... Intkkest — rate must be stated in Ijill of sale ... may be per month or otherwise capitalised, cannot bo reserved amount leavin^^ rat(> for calculation 44, 40, GG 174 55 174 240 137 42 51 43 43 137 33 34 34 IIG 116 117 68,89 117 116 118 221 221 264 228 165 165 16G 105 INDEX. I* A OK I NTKREST — continued. calculutiun of in liiin|i hiiiti ... ... ll)>'> bonuH cannot Ih- taken iir ... ... ... IG5 collateral af^reenient f(»r, Ih coudilioii or dcfeaMance l'.'!. IJM} misrepresentation of rate cjf .. .. ... .. 177 Imkkim.kahkk order for sale in ... ... 11(» bankraptcy of grantor after . 110 where rights of tliird i)nrties may tie set up ;;2, l!»s right to money paid into cnnrl ... ... ... lit'. I.NTEKPBKTATION OK TkK.Mx - bill of sale ... ... .. 1(1 personal eliattels ... ... . . ... (w apjjarent posscpsion .. ... ... 7- presci-ibed .. . .. 77 trade machinery ... . ... .S'.t factoiy or workshop ... . ... 1H» Invkntoky — with receipt ... ... ... ... ... .. 4<>. W> whether within Acts, if receijit sejiarate 4l> on sale by sheriff ... ... .. .. 17 when requiring registration ... ... .. 1*^ now a doubtful security 4'J former rule ... ... Mi to bill of sale now eoni])ul8ory ... ... ... 77 referred to in bill of sale or schedule ... ^i'. I7!> stamp on ... . . . . . ... I'ML' Ikkland- transfers of ijoods in ... ... ... . ... H. I'll.' bill of sale of property in .. . . ... H principal and amendment Acts do not apply t<> JVJ Bills of Sale (Ireland) Acts, 1879 & 1883 ... 2 H' J UK AT — error in ... ... ... ... ... 17'.» omitting commissioner's qualification 180. 181 JCKI8DICTn)N IN BaXKRUITCY- to deal with claims by or against trustee I'l*.; of county court ... ... ... '•">- objection to when taken .. ... l'*-* 322 INDEX. Landlord — may distrain on goods comprised in bill of sale distress by cause for seizure .. . what goods are subject to claim for rent . . . rights against bill of sale holder rights after bankruptcy no claim against grantee for removal before default or for grantee's removal to avoid distress ... against tenant for fraudulent removal marshalling against I'ights under attornment clause after end of term to growing crops against grantee on surrender of term ... Leahe — mortgage or deposit of, carries fixtures but not deposit of assignment of giving power of distress for current account giving distress to secure interest surrender of does not defeat mortgage of crops or iixtur mining, attornment clause in . . . LiCKXSE TO Seize — what right it confers ... not within Acts if possession accompanies... in hire agreement ... . . ... ... by force... to seize materials under building agreement in lease to secure current account ... how far revocable how discharged as security for a debt requires registration former effect on after acquired property . . . is not transferable now of doubtful validity none under void deed Lien — of unpaid vendor over chattels grant of is a bill of sale otherwise if arising by operation of law of agent for expenses not bill of sale PAGE 111 110 111 112 113 112, 212 112 112 113 95 113 71 103, 113 100 101 57,96 94 's 103 94 55 54 51 107 56 58 55 55 40 87 55 54, 157 158 44 53 44 58 INDKX. '.ij.i L I K N — cnnt i n ui-d. e.xtouda t<} (ixed trade ninchinory grantor of chuttela Bubject to niuy be Iniu owiut .. jB^ntee of true owner under reputed ownership cluuBt^ truiiHfcr by ])cr8on haviuf^ Lc)( AL RKtilSTKATlO.N in whut cuHeH ... omission does not avoid ref^islniliou mode of... abstract on rules for... of entry of satisfaction lilNATIi — cnnt raft of M MHINRRY- wliat is deenii'd ti-ado macliinory fi.Ted may pass with land separate assis MoKT(;A(ii'; wlieii sale treated as ... teat whether sale or ... may be by deed or jiarol void as bill of sale may be othervN'ise valid with attornment-claiise with power of distress re(|iiire8 registnitio by infant of land carries fixtures of fixed trade machinery purchase of goods subject to ... remedies under... where debt severed from security ... reconveyance of redemption of ... Mortgagee— remedies and liabilities of may add costs to secority right to fi.\tures or growing crops ... to fixed trade machinery rights of second, when first mortgage avoided on purchase by trustee in bankruptcy removal of crops against landlord liability for reckless sale proof by . . . title of purchaser from with notice of prior claim when entitled to seize under bill of sale ... restraining payments by ... in possession, demise by cannot rely on bare legal titir marshalling by Motive Powkrs — when n»)t personal ciiattels ... may pass by deed void as bill of sale appurtenances of Namk — description of grantor... description by a8Bumes it-i 04 :<4 1(10 Hit, ftl «4, 19tt U>4 204 204 Riri lot. 107 105 100 Ul loA. 108 153 71 105 153 105 ll>lt lo4 lu; i.'>i. n;i» 04. OK :iJ7 ii:i w» 9o o:' I HO 18'.' •^2G INDEX. Name contimLed. assumed, used to mislead of grantee must be stated of person advancing money ... ... to be entered on index by registrar ... Notice — of prior bill of sale of assignment of choses m action against whom necessary constructive of act of bankruptcy ... what is necessary before seizure Object of Acts — of principal Act of amendment Act of Bills of Sale Act, 1890 Occupation — what is for purposes of Acts ... object of desci-iption ofj description of grantors of attesting witness ... what is sufficient to be described as at time of registration ... if principal stated sufficient ... former or abandoned need not be described for apparent possession description of person without Office Copies — admissible in evidence of bills of sale ... of affidavit of execution of certificate of search evidence by fees for ... OrAI, AiiREEMENT — when admissible to prove title to chattels ... when contract reduced to writing when writing does not express true contract test of admissibility of proof of PAGE 189 189 196 210 199 70,240 240 199 .150,239 108 30 30 174 186 181 181 182 .181,190 .181,190 188 .188, 190 72 188 220 218 218 222 .219, 220 220 43 43 43 43 INDKX. .i^; Okhkk ami Disposition — when chattels in registered bill of Hale subject to. fornipr rulo when floods rrniaiii in irriintor's what jircviMitH riilo applying ... (loos not apply to abmilutt* bills of sale .237. 2:W 2M OlihlNAKV Cot'RSK OK BUSINKSS — transfers in, are protected wliat are transfers in ... plodfjes and liypotlH'cations in purchase from grantor in, when ^^(mkI against grantee 1'aroi, - mortgage or sale hy authority, effect of agreement, when admissible in evidence Partnkr.siiip assignment of share in not within Acts apparent possession of goods of reputed ownership of ... Tawn Tickkt — not within Acts I* \YMK. XT- default warrants seizure enlarging time for covenant for in void deed time for must be certain must not depend on contingenc; CJinnot be on demand ... meaning of in stating consideration by holder of void bill of sale ... error in slating time for Pkkr- how described in bill of sale ... Pkkjiky — by false atlidavit n m l'.t<> M 70 )H.-, 44, r,(; 108 l.->8 167 lf.7, 16s IC.7 llih. i;u 1 •'> » It.s IS8 328 INDEX. FAOE Pkhsonal Chattels — transfer of ... ... ... ... ... ... ... 32 what are, within Acts ... ... ... ... ... ... 67 must be specified in schedule .. . ... ... ... ... 77 when fixtui-es and growing crops are ... ... ... 67 seizure in certain events only ... ... ... ... 104 when bill of sale void only as to ... ... ... ... 134 when may be removed... ... ... ... ... ... 211 when in grantor's apparent possession ... ... ... 72 when in his reputed o^vnership ... ... .. ... 234 F LANT — what is ... ... ... ... ... ... ... ... 94 bill of sale of substituted ... ... ... ... ... 93 after-acquired, when bill of sale of valid ... ... ... 93 is within reputed ownership clause ... ... ... ... 235 Fledge — document accompanying, not a bill of sale ... ... ■ 44 unless no change of possession ... ... ... ... 44 what change of possession required... ... ... .. 44 by deposit with warehouseman ... ... ... ... 44 gives security without registration ... ... ... ... 44,66 by grantor 33,201 remedies of pledgee ... ... ... ... ... ... 105 Possession — grantor's, when a sign of fraud ... ... ... ... 142 immediate may exclude Acts ... ... ... ... 44, 121 what necessary on pledge ... ... ... ... ... 44 may be taken in certain events only ... ... ... 104 unlawful before default ... ... ... ... ... 109 apparent ... ... ... ... ... ... ... 72 formal and actual ... ... ... ... ... ... 73 when goods remain in grantor's ... ... ... ... 62 need not be exclusive ... ... ... ... ... ... 77 of trespasser ... ... ... ... ... ... ... 77 under void bill of sale... ... ... ... .. ... 136 will not support title if bill of sale void ... ... ... 136 Post-nuptial Settlement — ■ of chattels must be registci'ed ... ... ... ... 62 still governed by principal Act ... ... ... ... 62 not geneially within amendment Act ... ... ... 62 INDKX. AS.i I'dWEK OK A riOKNKY — wlii'ii im'vocnlili" to seize (^linttela iiiuhI bi- rt'^fisierud bill of Halo under onforciii)^ bill of sale iimltT ... I'oWEK OK Salk — when nuthorizinj< saU^ ol' fi.viiircH aimrt from lainl at valuation eannot Ik; fo^'*-'" ••• title of purchaser under when it arises ... how derived may be expressed in bill of sale forms ruixciPAL Sum — how stateil in 1)111 t<{ sale must be certain no additions to can be made ... time for paymeut of ... default in i)aynienl warrants seizure I'UIORITY — in order of date of ref^islratioii how affected by notice former rule rule applies to all bills of sale between unrcf^istered bills of sale ... between absolute bills of sale and sccuiitii- how affected by amendment Act for further a) 1112 17-' 1(1.-, . 171 171 I " 1 1 i 1 17L' l".tl Itu ira HU i*>; 1!*7 1 '.»'.' i;»s l!»7 I!IS I '.'7 r."7 202 I'd I I |.» I i:( I (.'( I t:( l'.t.-i lit.'-. I «",.:, inri I'll I 330 INDEX. l'i;ooF — by secured creditor ... of bill of sale ... when attesting witness must be called of affidavits Protected Tkansactions— what, in bankruptcy ... purchaser in good faith and for value PCRCHA.SER in good faith and for value ... under bill of sale, title acquired by ... from grantor left in possession from grantor in ordinary course of business meaning of, in Bankruptcy Act li.vTEs AND Taxes — bill of sale no protection against distress for execution for is postponed to bill of sale ... what may be seized for agreements for payment of ... distress for warrants seizure non-production of receipts for Receipt — when a bill of sale ... ... ... not within Acts unless an assurance not when acknowledgment only nor when completed independent sale when deemed an assni-ance ... former rule with inventory when a bill of sale ... for rent, rates and taxes to be produced when production excused clause in bill of sale ... 153 219 220 227 150 63, 139 63 105 199 200 63 215 215 215 169 110 115 46 46 46 47 46 46 46 115 115 173 llECEIVER- when possession protected whether excluding reputed ownership mortgagee's interference with, contempt of Court undertaking against damages by 118 239 118 118 INUKX. :i,'ii Rkctikication — of rof^ister u])plicatioii for iu what CUHCH un whut tuniis ... against what porsuuB ... iioiu' of hill of sale void at c-uiiimuncement of Act |{ki>i:mimio.\ - who may riMlcciii l)ill of sale ... time fr)r... after lapso of tivf lUiys where inortgupoc enforces remedies where eoUatenil seeiirities what riglits acquired on bill of sale cannot be retained after what (hiinatfes grantor may deduct ... Kkgister — omission to of bills of sale ... for local registry of renewals index of naine.'^ publication of, wlieii privileged copyright in ... entry of satisfaction ... rectification of ... searching inspection fees for form of . . . Kkgistrak — of billH of sale ... duties of ministerial ... not bound to see that Act omplied with duties on local registration . Masters of Supreme Court may order entry of satisfaction 2 1 :t •Jl I lu:. 1 1 1.-, Km;. 117 iu(i. 171 204 105 17;{ lu.-, L'l.i l'<»7 2u."i 2 10 Jlu 210 J I :. L'-'l •J2\ J5o L'lJ iin.' ■J] J 2\:> 332 INDEX. Registration — what documents require of absolute bill of sale unnecessary between parties of security now compulsory ... former rule time for of bill of sale executed abroad extending time for form of order for extension ... modes and requisites of damages for wrongful... proof of ... local in what cases I'enewal of avoidance of by non-renewal... confers no title against landlord is no protection against distress for rates and taxes priority conferred by . . . what errors will invalidate fees on ... 40 120 123 120 123 123 213 277 178 124 21'.t 207 205 206 111 215 197 179 228 Removal- by grantor when fraudulent ... fraudulent is cause of seizure after default and tender time for, after seizing goods . . . in what cases restrained by third party to avoid distress when fraudulent against landlord of growing crops against landlord right to, on surrender of term injury to goods in course of... 114 114 106 211 116 112 .112,114 71 103 105 Renewat^ of Registratio.x — to be under principal Act none of deed void at commencement of Act omission of, avoids deed under Amendment Act otherwise nnder repealed Acts not necessary on transfer time for... .205, 241 .206, 241 20G 205 205 205 INDEX. Uk.nkwai, .If Itn.iMK vrioN — citulinuttl. iiiodf i)\' ... ... ... ^,,- formiT practice ... ;>(i,- extciuliu;.' linn- for ;< of ... ... ... ... .. ^m feen for ... ... ... .. .._ ^^_ ^^_ j2K Rkxt— wluii i« dcciiied fair ami rcasoimble . . ;iH rcccijits to be produced ... ... Il.% non-iu-oduction of receipt when cause fur Mei/.un- 1 I.", distress for, warrants seizure of goods 1 ll> Kkpk.vl — ofStuiiites ... ... ... .., _ 1'17. 211 how far prineipiil .Vet repealed . ... ... 21s wliMt l.ill.s of .sale not aflfeeted .. 2lS Ulfl RC It.\.SK n{.;reeiii(jii with riglit of ... . , [(y differs from equity of redemption ., 4(f conditions of must 1)6 strictly observed 441 lost i)y default under hire agreenu^ni ^.f. Kki'itkii Ow.\i:ksiiii- un wluii goods are within 2.'U fi.vturcs not subject to 2HI nor ships in registered mortgagi- C", nor (hoses in action, other than debts ... ju* chattels in bill of sale under Anu-tidinent .Vet Hubjecl ti> 2',iA registere possession, actual or constructive -j'iT of gr)ods subject to trust ... 257 consent of inu- owner ... 2;JH 334. INDEX. Reputed Ownership — continued. liow consent determined ... ... ... ... ... 238 who is true owner ... ... ... ... ... ... 238 what prevents its operation ... ... ... ... ... 238 custom ma>' exclude ... ... ... ... 237 seizure or demand may exclude ... ... ... ... 238 not excluded by Bills of Sale Act, 18itU 240 Bk.sidexce — of grantor ... ... ... ... ... ... ... 181 of attesting witness ... ... ... ... ... ... 182 where more than one residence, principal described ... 185 what description is sufficient... ... ... ... ... 182 when number of house to be stated ... ... ... 184 addition of wrung county to . ... ... ... 191 to be described as at time of registration ... ... ... 181 where residence has been changed . .. ... ... 182 object of description ... ... ... ... ... ... 182" must appear in attestation clause ... ... ... ... 182 what errors in dcscriiJtion may be rectified ... 18;j, 191, 214 KKsiaAiNiNG Removal — in what cases ... ... ... ... ... ... ... 116- to whom application made ... ... ... ... ... 117 within what tinn' ... ... ... ... ... ... 116- setting aside oriler ... ... ... ... ... ... 117 RrLES — power to make and alter ... ... ... ... 240 by whom to be made... .. ... ... ... ... 240 for affidavits ... ... ... ... ... ... ... 225 for searches .. ... ... ... ...264,267 under Conveyancing Act ... ... ... ... ... 267 for local registration ... ... ... ... ... ... 265- for entering satisfaction ... ... ... ... 216,2(50.267 Sale- completed by delivery' not witliin Acts ... ... ... 44,121 receipt on, when within Acts... ... ... ... ... 46- followed by independent hire agreement ... ... ... 51 when auctioneer's memo, of, is within Acts ... ... ')\i in ordinary course of business ... ... ... ... 6') of chattels comprised ill bill of sale... 199' INDKX. a.Hfi Salk — confinnt'J. in certain ovPTitrt only... tiiiio for, nitor iwMZuro by jfranior when j^ liy ffnmtor powor of in bill of Half cannot ho hy vahmtion unvhon fOlii-'ciil not olilMincil wiilioiii cnioriiitr hy oporatioii of law satiflfiod hill of salo not cMfoi-ccahlc . form cif affidavit form of coiiHCMit form of suninioiis practice ruloR for fe«» on lilinir S«I1KIIILK if none, hill of sale void itHeffoct... execution of hill of salo at foot tif ... now onsontial to validity of hill .>f salo qualifieB general words can only include chattols iioismial specific doHcripf ion in tixoeptionK to lU'coHHity for Hjiocifii- iloHcription requires registration ... referred to in scliedide alteration or destruction of ... covenant to niuko itnntp on I'll ll»0 L'( "2 U>.| 17- 1 7-' J SI' 17.< loG. 173 Itl5 lo:.. 17a - 1 .'. _ iti .'ii; L'IC. -•17 -'17 -17 L'7:! -'71 L'7l -'iT -J'.» 77 s«i I7'.» !*«• 7S 7'.» !t8 178 I7'.t N^». hi'. l'J2 HO . h-'. -.'32 .; 2 3:i6 INDEX. transfei-s of goods in ... ... ... ... .. . 41,242 principal and amendment Acts do not apply to ... .. 242 bill of sale over property in ... ... ... ... .. 41 affidavit, how sworn in ... ... ... ... 226 •Seakcu — mode of ... ... ... . . ... ... 221 in local registry ... ... ... . ... 207 form 273 under Conveyancing Act . ... 267 reqtiisitiou on ... ... . .. 267 declai-ation of purposes of . ... 268 certificate of ... ... ... . 268 fees for 221,228 .Seizlbe — in what events now permitted . . . . 104 after demand ... ... ... ... . . ... 108 before default .. ... ... . . 109 powers of , conflicting with Act ... ... .. ... 167 what notice was required ... . . . . 108 suspension of right by agreement . . 108 restraining ... ... .. ... .. .. 116 goods to remain on premises after ... ... ... 211 in pui'suance of licence ... ... . . . ... 55 power conferred by scheduled form . . . . ... 171 power of may be inserted in bill of sale ... . ... 172 wrongful by sheriff ... . ... ... ... ... 115 when wrongful ... ... ... ... ... ... ... 109 measure of damages for wrongful ... ... ... ... 107 Sep.vrately Assigned — definition of words ... ... ... ... ... ... 99 w^hen fixttires or crops so deemed ... ... ... ... 94, 99 when fixed trade machinery is ... ... ... 91 former rule ... ... ... ... ... ... . . 102 Settlement — .. post-nuptial requires registration ... .. ... 62 marriage, when good against credit ons ... . . 63 fraudulent ... ... .. .. ... 63 when void under BaukruiHcy .\cr ... ... ... 63 iMtKX. .{3; Sn.uifcs — net IMTsoiiiil ohiitlelrt wiiliin Acm in shipM not witliin AcIh in j)arl niTship jimmoim (^Iidhch in iicl ion SlIKRIFK bill of mile by ... iindfr-Hlicriff or flcputy injiy ••.vi'i-nn- bill of Hftl>- with invt^niory :inil rtt-oipi when Hiilc bj- witliiu Acts .salo I'ollowed liy liin- af^rcfnii'iii duty of on Rah's over £20 when to sell by auction nnrc(^isterc(l l)ill of sale void at;ainsi adoption of acts of wronj^fnl seizin'): l»y Ship ok Vks.skl transferK of share in excc|)iid fnim Act.s ... meaiiinj^ of, in Acts what are within exception tiransfer of when incomplete ... what appurtenances pass by nion>?ageeof ... registered morlifa^o not witliin rejinted ovmumhImp SHIPP1.\(. TR.\NShl-;R> — not bills of sale thouf^h not registered iiiidei- .Mfi-i-haiit Sliippinj,' Acts nor of shares ill ship .,. when ship incomplcto... will pass materials and appurtenances what are shijis or vessels SULICITOB- - absolute bill of sale must be nttcstetl by who can attest ... attestation by, not re»|iiirt'd to securities may attest thouj^h actin^r for party or thoujrh uneertilicated but not if a party statement of fxplanation b\ .. description of, in artidavit statement of attestation by ... cannot swear i-lieiit to atlidavit part consideration paid to for cosim... privilei^ed eommunications to ll.i'.l ■2H:\ JS-l »7 ;s 17 ll!l I \i\ II. ■> II •i.'i • i.") n <■..> • 14 i/i; 178 i7i; I7S I7S I7K 17I-. isii I.S4I l:i2 ass INDEX. .SPEriFicALLY Described — meaning of words ... ... ... ... ... ... 79 chattels in schedule must be ... ... ... ... ... 77 exceptions ... ... ... ... ... ... ... 1)3 clerical error in description not fatal ... ... ... 79 how trade or private chattels should be ... ... ... 80 description by number ... ... ... ... ... 80 .supporting objection thut <'hattels are not ... ... ... 80 Scamp Dlties— 228 fees to be paid by ... .. ... ... ... ... 229 on absolute bill of salt' ... ... ... ... ... 229 on conditional bill of >.ilc ... ... ... ... ... 23() bill of sale to be stanqtcd licfure lilinu' .. .. ... 229 for tiling- bill nf .v:ilc 22S on uifnioraniluiii iif fJiarui' . . ... ... ... . 1:3(1 on collateral security ... ... ... ... ., ... 23(1 on .security for fnturi' advances ... ... ... ... 231 where chattels suljstirnrcd... ... ... ... ... 231 ontransfer ... ... ... ... ... ... ... 230 on transfer witli fun licr advances ... ... ... ... 230 on reconveyance or assit;iiinent ... ... ... ... 230 on schedule ... ... ... ... ... ... ... 232 unstamped document inadmissible ... ... ... ... 231 but may prove act of bankruptcy ... ... ... ... 231 penalty when bill of sale insufficiently stamped ... ... 232 insufficient stam{j does not invalidate registration ... 192 who to stamp ... ... ... ... ... ... ... 232 penalty for not stampinfi' ... ... ... ... ... 232 Successive Bills of Sale when void ... ... ... ... ... 155 not if more than seven days after pi'ior deed ... ... 155 when to correct a material error ... ... ... ... 155 former rule ... ... ... ... ... ... ... 155 when obtained by niisrej)resenting effect of prior deed ... 155 statement of consideration in ... ... ... ... 129 effect of sub.stitution of security ... ... ... ... 156 not necessarily fraudulent preference ... ... ... 149 taking may cancel prior deed ... 156 cancellation by, depends on inrention ... ... ... 15(i priority of .. .. ... ... ... ... ... 195 INDKX :♦:«'.. Si nv i\ wlii'ii (iiHiliiir^^ril by IdHK (>f Htcinit \ ... 151 (myiiiciit of, not Iraudnlciit iirilorciuH' ... I4H iiid«M»mity to, will not .supjMJrt liill of nalc ... It'.f. 1 aliould iiicliuif inttTOMt ainJ t-.^pi'iiBeH 106 'I'imf: — of f.xcciition of liill of .sale to a|i|Mar in attidavit I7S for |iaynic'iit ... . 1G7 wlii'ii year not Btiited I OH for redemption ... ... ... ... I (Hi for regiatratioii .. ... ... .. \2'.i w lien ottieea closed ...... 2H when bill of sale e.veeuted abroad ... \'j:: for renewal ... .. .. 2Vo extendiuf; ... ... 2\'.i in what cases I'.xteiided ... . ^l;< for ronioviiij; pxxls after seizure ... ... Jl I month in hire a^jreenieiit ... .">:< 'Ikhik MArm.NKKY what iH to III- deeiiKid . ... ... ... H'.» when elmttels ... ... ... S!' what is excluded . . ... . '.»* excluded articles may pubs through bill of sale void <.>l when tixeil may pass with mort^'afre of land IM where power to sell sepanitely 5*1 bill of sale of, recptires ref^istration 85» what ]ia»ses on assignment of \)'J after-ae(juired, when bill of sale valid . . 0.'< 'I'kknhkkk — when a bill of sal*- • ... R>, 4.'» of bill of sale need not be rfgisferetl 2;i a40 INDEX. PAGE 'l'R\yiiiK&^continued. rights acquired by ... ... ... ... ... ... 204 renewal not occasioned by ... ... .. ... ... 205 but registration of original bill of sale must be renewed 203, 207 with further advance when a bill of sale ... ... ... 203 in ordinary course of business ... ... ... ... 41,65 of ship or vessel, not within Act ... ... ... ... 41 without notice of fraud ... ... ... ... ... 33,130 stamp on .. ... .. ... ... ... ... 230 Trespass — when mortgagee can bring ... ... ... ... ... 3}> when mortgagor can bring ... ... ... ... ... 10& entry before default ... ... ... ... ... ... 109 measure of damages for ... ... ... ... ... 107 'J' ROVER — when mortgagee can niaintaiii ... ... ... ... 3J> for crops will not lie after surrender ... ... ... 103 against landlord preventing removal ... ... ... 112 for goods sold by grantor ... ... ... ... ... 200 True Copy — of bill of sale to be registered ... ... ... ... 179 what so deemed ... ... ... ... ... .. 171' clerical error in ... ... ... ... ... ... 179 True Owner — meaning in Acts ... ... ... ... ... 84 includes one having beneticial interest . ... ... 84 or equity of redemption ... ... ... ... . . 85 or owner of legal estate ... ... ... ... ... 85 grantor under Amendment Act must be ... ... ... 83- exceptions to rule ... ... ... ... ... ... 92 grantor of void bill of sale is still ... ... ... ... 85 if grantor not, bill of sale how far void ... ... ... 83 when estopped from setting up title ... ... ... 32" priority of bill of sale givim by person not ... ... 197 who is under reputed o\\uer6hi]j clause ... ... ... 238 consent hy ... ... ... .. ... ... ... 238 wliat determines cou.seiit ... ... ... ... ., 238 I.NDKX. 341 TttOSTKK- liow CTcatcil ..... .|5 (lifTcrs from imporfoct gift i', poHsosKi'on uii(ii>r .. .'!•.•. Ttl wliat void iiiuler die baiikruiJtcy law< I'm; secret, a badj^o of fraud ... J.H; for j^raiitor's benefit ... 14;i wliat is a dcflaratioii of j,", deciarat ion of niust lie regi.stcred ... 44), lUii bill of sale to .. .. 1(53 bill of sale by So possession of ... ... ;{'.(, 70 TRLSTKK in H.VXKRriTl y — what persons arc included in the term 120 what transaction.^ arc void against . . Ill relation of title .. . ... ... ... ... I5u transactions protected against ... ... ... ... 15U undertaking against damages .. ... 118 redemption by ... ... .. |.j3 rights ou second mortgage when first void . . ... ...153,198 cannot remove crops tenant could not ... ... ... 71 cannot rely on execution void against him... .. Kty claim to money in Court on interpleader . .. ] li; should not move unless for benefit of estate 154 must elect to atiirni or repudiate trausactioub quest ionetl 137 in what Court he should proceed ... ... ... ... 152 UXDISCUABGED BaXKRLPT - bill of sale by . 30 may deal with after-acquired property .. 3(J capacity to contract when jterniitteil to trade . 'M VALir.XTIO.N — ])ower to take at cannot be given ... ... .. ... 172 by sherifT ... .. 283 Vhndok's Lik.n — not within Acts ... .. ... ... . 44 unless reserved where possctjsion given up ... 'i[i 342 INDEX. Void Bill of Salf, — ill what cases ... ... ... ... ... ... ... 135 when except as against grantor ... ... ... ... 135 may operate as secnrity otherwise than over chattels ... 158 when covenants in are void or enforceable... ... ...134, 158 possession under will not give title ... ... ... ... 136 grantee of may claim under independent title ... ... 137 when grantor estoi^ped from impeaching ... ... ... 137 damages for seizure under ... ... ... ... ... 107 Voluntary Conveyance — when void against creditors ... ... ... ... ... 141 when consideration may be proved ... ... ... ... 138 who deemed a purchaser ... ... .... ... ... 63 Waiver— of terms of bill of sale ... ...' ... ... ... 107 of right to distress ... ... ... ... ... ... Ill of time for removal .. ... ... ... ... ... 212 Wakkaxts for Goods — not within Acts .. ... ... ... ... ... 41 nor document hypothecating ... ... ... ... 66 Witness to Bill of Sale— who may be ... ... ... ... ... ... ... 175 what is a credible ... ... ... ... ... ... 176 formerly must have been a solicitor... ... ... ...175,176 description of, in affidavit ... ... ... ... ... 182 name and addx'ess iu attestation clause ... ... ... 175 Workshop — what is within Acts ... ... ... ... ... ... 90 trade machinery in ... ... ... ... ... ... 89 motive jjowers, &c., in ... ... ... ... ... 90 OEC 11 1952 LAW LIBRARY UNIVERSITY OF CALIFORNIA ^ LOS AMGELES liC SOtlTHTRt,- nr r.iOUK I BKJ- • AA