APPENDIX (A). (Referred to, ante, pp. 69, 77, 88, 89, 105.) at common law. "AT common law," observed Lord Blackburn (a), a man Bills of sale might take a security upon goods without carrying away the goods, or taking possession of them-he might take a sale of them out and out (b), and he might take the legal property in them subject to the power to redeem them (what is commonly called a mortgage), without taking possession of them (c). The law on the subject will be found in Twyne's Case (d), and the notes upon Twyne's Case (d), but this rule got established that when the goods were not taken away, but were left in the hands of the man who had had them previously, that which had been thought before to make the transaction void was really no more than evidence to go to the jury of fraud (e); and if a man came forward suddenly, when there was an execution, for instance, issued against the person in possession of the goods, and said, at an antecedent time, I had a security upon these goods, and I left them in the possession of the debtor all that time, the not having taken possession was evidence that the thing was a sham; it was not conclusive; it was not a matter of law, but it was evidence that the thing was a sham. Upon that two evils arose, and very important ones they were. In the first place it often happened that there was really a sham put up to endeavour to defeat a man, and there was a great quantity of perjury, of fighting and expense, before it was proved to be a sham. That was a great evil. The other was that there were real honest (a) Cookson v. Swire, 9 Apr. Cas. 664. (b) See ante, pp. 70 et seq. (c) See ante, p. 86. (d) 3 Rep. 80; 1 Sm. L. C. 1. (e) See ante, p. 104. transactions which were asserted to be shams when they were not, and in those cases there was apt to be much perjury and great expense before it was decided. For those reasons it was thought, and reasonably and properly so, that it was desirable to put a stop to this. That was the beginning of the series of Bills of Sale Acts, the first of which was passed in 1854." Before this Act, if a bill of sale were not avoided as fraudulent under stat. 13 Eliz. c. 5, the chattels comprised therein could not be seized upon an execution levied against the mortgagor (ƒ); but if the mortgagor became bankrupt, they were liable to be sold by his assignees as being in his reputed ownership (g). By the Bills of Sale Act of 1854 (h), every bill of sale of personal chattels, whereby the grantee should have power to take possession of any effects therein comprised, was required to be registered in the office of the Court of Queen's Bench within 21 days after the making thereof; otherwise such bill of sale was rendered void so far as regards any of the goods remaining in the apparent possession of the grantor, as against the grantor's assignees in bankruptcy (i), and as against the assignees under any assignment for the benefit of his creditors (k), and as against all sheriffs' officers and other persons seizing the effects in execution of any process of any Court of law or equity issued against the goods of the grantor (1). This Act did not give to such bills of sale as were registered under it any greater validity than they had before; so that chattels comprised in a registered bill of sale were still liable to be sold by the grantor's assignees in bankruptcy as being in his reputed ownership (m). And if the bill of sale was not registered, it was rendered void under this Act by the grantor committing an act of bankruptcy before the grantee took possession of the goods (n): (f) Martindale v. Booth, 3 B. & Ad. 498; ante, p. 104. (g) Ante, p. 102 and n. (ƒ). (h) Stat. 17 & 18 Vict. c. 36. (i) See ante, pp. 235, 236, n. (~). (k) See ante, p. 217. (1) Richards v. James, L. R. 2 Q. B. 285. But see Jessel, M. R., Re Artistic Colour Printing Com pany, Ex parte Fourdrinier, 21 (m) Stansfeld v. Cubitt, 2 De G. & J. 222; Badger v. Shaw, 2 Ell. & Ell. 472; Ex parte Harding, L. R. 15 Eq. 223. (n) Ex parte Attwater, In re Turner, 5 Ch. D. 27. and it was also rendered void as against an execution. The expression "personal chattels " was interpreted by the Act. (o) to mean goods, furniture, fixtures, and other articles Fixtures. capable of complete transfer by delivery. But the Act did. not apply to fixtures, when they passed by a conveyance of the premises to which they were affixed; and there was no difference in this respect between freeholds and leaseholds; for in each case fixtures, so long as they remain fixed, form part of the premises (p). It was however held that if there were a power to sell or take possession of the fixtures apart from the premises, or if the fixtures were separately assigned, they would not pass, unless the deed were registered (q).. The Bills of Sale Act, 1866 (r), provided for the renewal Registration every five years of the registration of bills of sale, without to be renewed which the prior registration ceased to be of any effect. every five years. The Bills of The Acts of 1854 and 1866 were repealed by the Bills of Sale Act, Sale Act, 1878 (s), which came into operation on the 1st of 1878. January, 1879 (t), and applies to every bill of sale executed on or after that day 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 (u). The following are main provisions of the Act: By sect. 4, the expression "bill of sale" shall include bills Meaning of of sale, assignments (x), transfers, declarations of trust term "bill of (0) Sect. 7. (p) Mather v. Fraser, 2 Kay & J. 536; Waterfall v. Pennistone, 6 E. & B. 876; Boyd v. Shorrock, L. R. 5 Eq. 72; Ex parte Barclay, In re Joyce, L. R. 9 Ch. 576; Meux v. Jacobs, L. R. 7 H. L. 484. See Williams's Conveyancing Statutes, 62, 63. (q) Ex parte Daglish, In re Wild, L. R. 8 Ch. 1072; Fenwick v. Begbie, L. R. 8 Ch. 1075; Hawtry v. Butlin, L. R. 8 Q. B. 290; In re Trethowan, Ex parte Tweedy, 5 Ch. D. 559; Ex parte Brown, Re Reed, 9 Ch. D. 389. (r) Stat. 29 & 30 Vict. c. 96. s. 23, except as regards bills of (u) Sect. 2. See Ex parte (x) See ante, p. 69. sale." Meaning of term "personal chattels." without transfer, inventories of goods with receipts thereto attached, or receipts for purchase-monies 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 followed 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 (y), 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, warehouse-keepers' certificates, warrants or orders for the delivery of goods or any other documents used in the ordinary course of business, as proof of the possession or control of goods, or authorizing, or purporting to authorize, either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented (:). 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 affixed, 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 govern ment, or in the capital or property of incorporated or joint stock companies, nor choses in action, nor any stock or (y) Wenman v. Lyon & Co., 1891, 2 Q. B. 192. () By stat. 54 & 55 Vict. c. 36, s. 1, instruments charging or creating any security on or de claring trusts of imported goods, given or executed at any time prior to their deposit in a ware house, 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, are not to be deemed bills of sale within the Bills of Sale Acts. |