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Chap. VII. signments of any ship or vessel or any share thereof (i), 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, warehouse keepers' certificates, warrants or orders for the delivery of goods (k), or any other documents (1) used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented."

Attornment clauses and powers of distress.

What consti

And (m)

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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 re-shipped for export, or delivered to a purchaser not being the person giving or executing such instrument."

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The Act of 1878 further provides (n) that every attornment, instrument, or agreement (not being a mining lease (0)) whereby a power of distress is given by way of security for any debt or advance, and whereby any rent is made payable as a mode of providing for payment of interest on such debt or advance, shall be deemed to be a bill of sale, within the meaning of the Act, of any personal chattels which may be seized or taken under such power of distress (p). This provision does not, however, extend "to any mortgage of any estate or interest in any land . . . which the mortgagee, being in possession, shall have demised to his mortgagor as his tenant at a fair and reasonable rent” (n). It does not apply to the landlord's power of distraining for rent under an ordinary lease (q); but it does apply to an attornment clause in a mortgage of real property (r), though it does not render the clause void so as to destroy the relation of landlord and tenant created thereby (r).

A document, to be a bill of sale to which the Acts apply, must tutes a bill of be a document on which the title of the transferee of the chattels

sale.

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depends. that is, one by which it is intended that the ownership Chap. VII. shall be practically changed or a right to take possession conferred (s). The fact that the whole transaction is reduced into writing does not of itself make the document a bill of sale so as to avoid the transaction, though under such circumstances it may be necessary to produce the document in order to prove the transaction (s). If the title of the transferee is by virtue of the transaction, and not under the document, the document is not a bill of sale (8).

An agreement, in an ordinary building contract, that all building and other materials brought by the builder upon the land shall become the property of the landowner, is not a bill of sale (u); but a mortgage of land and buildings in course of erection thereon, which gives the mortgagee power, on default by the mortgagor, to seize and sell materials, is a bill of sale (x).

agreements.

The Acts relate to assurances, assignments, or rights to seize Hiregiven or conferred by the person who owns the property (y). purchase Therefore a hire-purchase agreement, under which the property in the goods does not pass until final payment and the seller has a right to retake possession on default in payment, is not a bill of sale (y). Where, however, the owner of goods purports to sell or assign them to another, and then enters into a hire-purchase agreement under which the goods are again to become his property on payment of the agreed amount, the Court will inquire into the real nature of the transaction and decide accordingly whether the document is or is not a bill of sale (z).

Every bill of sale to which the Acts apply must be duly attested Attestation. and registered (a). In the case of bills of sale under the Act of 1878, the attestation must be by a solicitor, and it must state that, before the execution of the bill of sale, its effect was explained

(8) Ex p. Hubbard, 17 Q. B. D. 690; North Central Co. v. M. S. & L. R. Co., 35 Ch. D. 191; 13 App. Cas. 554; Mills v. Charlesworth, [1892] A. C. 231; Ramsay v. Margrett, [1894] 2 Q. B. 18; Morris v. Delobbel-Flipo, [1892] 2 Ch. 352; Mellor v. Maas, [1903] 1 K. B. 226; Hopkins v. Gudgeon, [1906] 1 K. B. 690; G. E. R. Co. v. Lord's Trustee, [1909] A. C. 109.

(u) Reeves v. Barlow, 12 Q. B. D. 436. (x) Climpson v. Coles, 23 Q. B. D. 465. (y) McEntire v. Crossley, [1895] A. C. 457; Ex p. Crawcour, 9 Ch. D. 419.

(z) Re Watson, 25 Q. B. D. 27; Madell v. Thomas, [1891] 1 Q. B. 230; Beckett v. Tower Co., Id. 638; Mellor v. Maas, [1903] 1 K. B. 226.

(a) 41 & 42 Vict. c. 31, s. 8; 45 & 46 Vict. c. 43, s. 8.

Chap. VII. to the grantor by the solicitor (b). This provision as to attesta

Registration.

tion has been repealed, by the Act of 1882, as to bills of sale given as security for the payment of money (c), but still applies to all bills of sale which are within the Act of 1878 and not within that of 1882 (d). Bills of sale within the Act of 1882 must be attested by a credible witness not a party thereto (e).

Registration is effected by presenting to the Registrar, at the Central Office of the Supreme Court, the bill of sale, together with a true copy (f) thereof and an affidavit of the time of the bill being made or given, and of its due execution and attestation, and a description of the residence and occupation of the grantor and of every attesting witness, and by filing with him the copy and affidavit (g). This must be done within seven days of the execution thereof, or, if executed out of England, within seven days. of the time at which it would in ordinary course arrive in England if posted immediately after execution (h). The registration must be renewed once at least every five years or it will become void (i). A transfer or assignment of a registered bill need not be registered (k). If, by inadvertence, a bill of sale is not duly registered or re-registered, a judge of the High Court may extend the time for registration or order the registration to be amended, but not so as to affect the vested rights of third parties (7). When the grantee of a bill of sale which has been duly registered has himself given a bill of sale in respect of the same goods, and this bill of sale is duly registered, it is not necessary in order to protect the title of the grantee under the second bill of sale to re-register the original bill of sale at the expiration of five years (m). Priority is given in the order of the date of registration (n).

(b) 41 & 42 Vict. c. 31, s. 10 (1);
Casson v. Churchley, 53 L. J. Ch. 335.
(c) 45 & 46 Vict. c. 43, s. 10.

(d) Swift v. Pannell, 24 Ch. Div. 210;
Casson v. Churchley, sup.; Heseltine v.
Simmons, [1892] 2 Q. B. 547.

(e) 45 & 46 Vict. c. 43, s. 10.

24; Kemble v. Addison, [1900] 1 Q. B. 430; Stokes v. Spencer, [1900] 2 Q. B. 483.

(h) 41 & 42 Vict. c. 31, ss. 8, 10; 45 & 46 Vict. c. 43, ss. 8, 11, 15.

(i) 41 & 42 Vict. c. 31, s. 11.
(k) Ib. ss. 10, 11.

(f) See Coates v. Moore, [1903] 2 quand, 14 Q. B. D. 636. K. B. 140.

(g) 41 & 42 Vict. c. 31, ss. 10, 12; R. S. C. Ord. LXI. rr. 1, 25-27. See Simmons v. Woodward, [1892] A. C. 100; Sims v. Trollope, [1897] 1 Q. B.

(2) Ib. s. 14.
2 Q. B. 122.
(m) Antoniadi
K. B. 589.
(n) Ib. s. 10.

See Ez p.

Tur

See Re Parsons, [1893]

V.

Smith, [1901] 2

In the case of bills of sale within the Act of 1882, if the Chap. VII. grantor resides, or the goods are described as being in a district, Local regisoutside London, the registrar must transmit an abstract of the tration. bill of sale to the County Court of such district, where it will be

filed (o).

Any defeasance, condition, or declaration of trust, subject to Defeasance, which a bill of sale is given, must, if not contained in the body declaration of condition, or thereof, be written on the same paper therewith before registration trust. and be set out in the copy filed on registration, otherwise the registration will be void (p). It has been decided (q) that a bill of sale is absolutely void for all purposes if given subject to a defeasance or condition not written in or on the same paper, which if inserted would make it void under sect. 9 (r) of the Act of 1882.

The Act of 1878 requires that a bill of sale "shall set forth Statement of the consideration" for which it was given (s); and the Act of consideration. 1882 contains the same provision with the addition of “truly" before "set forth" (t). The effect of both is the same (u). It is sufficient if the statement of the consideration is substantially accurate, if its true legal effect or its true business effect is stated (x). For instance, if a bill of sale is given to secure an existing debt, the consideration may be stated as money "now paid" to the grantor (y).

Effect of noncompliance with above

under

If the provisions as to attestation, registration, and statement of the consideration are not complied with, a bill of sale within the Act of 1878 is void only as against the trustee in bankruptcy, provisions, or the trustee of an assignment for the benefit of creditors, or an execution creditor, of the grantor, in respect of the chattels comprised therein, which are in the apparent possession of the grantor

Act of 1878;

(0) 45 & 46 Vict. e. 43, s. 11.

(p) 41 & 42 Vict. c. 31, s. 10 (3); Counsell v. L. & W. Co., 19 Q. B. D. 512; Edwards v. Marcus, [1894] 1 Q. B. 587; Ellis v. Wright, 76 L. T. 522; Heseltine v. Simmons, [1892] 2 Q. B. 547; Thomas v. Searles, [1891] 2 Q. B. 408.

(9) Smith v. Whiteman, [1909] 2 K. B. 437; Pettit v. Lodge, [1908] 1 K. B. 744 ; but see Heseltine v. Simmons, [1892] 2 Q. B. 547, 553.

(r) Post, p. 109.

(s) 41 & 42 Vict. c. 31, s. 8.
(t) 45 & 46 Vict. c. 43, s. 8.

(u) Richardson v. Harris, 22 Q. B. D.
268, 274.

(x) Credit Co. v. Pott, 6 Q. B. D. 295; Richardson v. Harris, sup. ; Ex p. Johnson, 26 Ch. D. 338; Darlow v. Bland, [1897] 1 Q. B. 125; Davies v. Jenkins, [1900] 1 Q. B. 133. See Davidson's Conc. Prec. 338 (ed. 19).

(y) Credit Co. v. Pott, sup. ; Re Wiltshire, [1900] 1 Q. B. 96.

Chap. VII. at the time of the bankruptcy, assignment, or execution (2). As between the parties it will remain valid (a).

Act of 1882.

Further requirements under Act of

1882.

Consideration less than £30. Schedule.

Specific description.

Grantor must be "true owner."

The effect of non-compliance with the above provisions is very different in the case of a bill of sale within the Act of 1882, that is, one given "by way of security for the payment of money" (b), for then the bill of sale is absolutely void, even as between the parties, "in respect of the personal chattels comprised therein" (c).

The Act of 1882 contains further requirements which must be complied with in the case of such bills of sale. This Act is to be construed as one with the Act of 1878 (d), and the provisions of the Act of 1878 which are inconsistent with the Act of 1882 are repealed (e).

Any such bill of sale given or made in consideration of any sum under £30 is void (f).

Every such bill of sale must contain, or have annexed, an inventory of the personal chattels comprised therein, in which the chattels must be "specifically described," and is void, except as against the grantor, in respect of the chattels not so described (g). The description must not be a mere general description, such as "household furniture and effects," but must be such a description as would be given in an ordinary business inventory and will be sufficient to identify the particular chattels and to distinguish them from other things of the same class (h).

If the grantor is not, at the time of the execution of the bill of sale, the true owner of any of the personal chattels specifically described in the schedule, the bill is void in respect of such chattels, except as against the grantor (i). If a man has assigned his chattels by an absolute bill of sale, he is not the "true owner" of those chattels (k); but he is the "true owner" if he

(2) 41 & 42 Vict. c. 31, s. 8. See post, p. 110.

(a) Davis v. Goodman, 5 C. P. D. 128. (b) Not merely "money lent." See North Central Wagon Co. v. M. S. & L. R. Co., 35 Ch. D. 191, 215.

(c) 45 & 46 Vict. c. 43, s. 8. Thomas v. Kelly, 13 App. Cas. 506. post, p. 110.

(d) 45 & 46 Vict. c. 43, s. 3.

(e) Ib. s. 15.

See

See

(f) Ib. s. 12. See Davis v. Usher, 12

Q. B. D. 490; Darlow v. Bland, [1897] 1 Q. B. 125.

(g) 45 & 46 Vict. c. 43, s. 4.

(h) Roberts v. Roberts, 13 Q. B. D. 794; Witt v. Banner, 20 Id. 114; Carpenter v. Deen, 23 Id. 566; Hickley v. Greenwood, 25 Id. 277; Davidson v. Carlton Bank, [1893] 1 Q. B. 82; Davies v. Jenkins, [1900] 1 Q. B. 133.

(i) 45 & 46 Vict. c. 43, s. 5.

(k) Tuck v. Southern, &c. Bank, 42 Ch. D. 471.

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