purporting to authorize, either by indorsement or by delivery, the Chap. VII. possessor of such document to transfer or receive goods thereby represented." And1 "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." clauses and The Act of 1878 further provides that every attornment, Attornment instrument, or agreement (not being a mining lease)3 whereby powers of a power of distress is given by way of security for any debt or distress. 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. 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."2 It does not apply to the landlord's power of distraining for rent under an ordinary lease; but it does apply to an attornment clause in a mortgage of real property, though it does not render the clause void so as to destroy the relation of landlord and tenant created thereby. tutes a bill of sale. A document, to be a bill of sale to which the Acts apply, must What constibe a document on which the title of the transferee of the chattels depends, that is, one by which it is intended that the ownership shall be practically changed or a right to take possession conferred.? 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 6 Mumford v. Collier, 25 Q. B. D. 279; Green v. Marsh, [1892] 2 Q. B. 330. See form and note in 2 K. & E. 53; and also 34 S. J. 704, 716. 7 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. Chap. VII. to produce the document in order to prove the transaction. Hirepurchase agreements. Attestation. Registration. 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.1 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; 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.3 The Acts relate to assurances, assignments, or rights to seize given or conferred by the person who owns the property. 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.* 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.5 Every bill of sale to which the Acts apply must be duly attested and registered. 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 to the grantor by the solicitor. This provision as to attestation has been repealed, by the Act of 1882, as to bills of sale given as security for the payment of money, but still applies to all bills of sale which are within the Act of 1878 and not within that of 1882.9 Bills of sale within the Act of 1882 must be attested by a credible witness not a party thereto.10 Registration is effected by presenting to the Registrar, at the Central Office of the Supreme Court, the bill of sale, together with 7 1 See note sup. p. 99. 2 Reeves v. Barlow, 12 Q. B. D. 436. 457; Ex p. Crawcour, 9 Ch. D. 419. 5 Re Watson, 25 Q. B. D. 27; Madell v. Thomas, [1891] 1 Q. B. 230; Beckett v. Tower, &c. Co., Id. 638; Mellor v. Maas, [1903] 1 K. B. 226. 641 & 42 Vict. c. 31, s. 8; 45 & 46 Vict. c. 43, s. 8. 7 41 & 42 Vict. c. 31, s. 10 (1); Casson v. Churchley, 53 L. J. Ch. 335. Swift v. Pannell, 24 Ch. Div. 210; 10 45 & 46 Vict. c. 43, s. 10. a true copy thereof and an affidavit of the time of the bill being Chap. VII. 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. 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. The registration must be renewed once at least every five years or it will become void. A transfer or assignment of a registered bill need not be registered." 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. 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." Priority is given in the order of the date of registration.8 tration. In the case of bills of sale within the Act of 1882, if the Local regisgrantor resides, or the goods are described as being in a district, outside London, the registrar must transmit an abstract of the bill of sale to the County Court of such district, where it will be filed.9 Defeasance, declaration of condition, or Any defeasance, condition, or declaration of trust, subject to which a bill of sale is given, must, if not contained in the body 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.10 Chap. VII. Statement of The Act of 1878 requires that a bill of sale "shall set forth the consideration" for which it was given; and the Act of 1882 consideration. contains the same provision with the addition of “truly " before 66 set forth."2 The effect of both is the same." It is sufficient if the statement of the consideration is substantially accurate, if its true legal effect or its true business effect is stated. 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. Effect of noncompliance with above provisions, under Act of 1878: Act of 1882. Further requirements under Act of 1882. Considera tion less than £30. 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, 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 at the time of the bankruptcy, assignment, or execution. As between the parties it will remain valid.7 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," for then the bill of sale is absolutely void, even as between the parties, "in respect of the personal chattels comprised therein."9 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, and the provisions of the Act of 1878 which are inconsistent with the Act of 1882 are repealed.11 Any such bill of sale given or made in consideration of any sum under £30 is void.12 141 & 42 Vict. c. 31, s. 8. 2 45 & 46 Vict. c. 43, s. 8. 3 Richardson v. Harris, 22 Q. B. D. 268, 274. 4 Credit Co. v. Pott, 6 Q. B. D. 295 : Richardson v. Harris, sup.; Exp. 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. 307. 5 Credit Co. v. Pott, sup. ; Re Wiltshire, [1900] 1 Q. B. 96. 6 41 & 42 Vict. c. 31, s. 8. p. 105. See post, 66 7 Davis v. Goodman, 5 C. P. D. 128. 8 Not merely money lent." See North Central Wagon Co. v. M. S. & L. R. Co., 35 Ch. D. 191, 215. 945 & 46 Viet. c. 43, s. 8. See Thomas 10 45 & 46 Vict. c. 43, s. 3. 12 Ib. s. 12. See Davis v. Usher, 12 Q. B. D. 490; Darlow v. Bland, [1897] 1 Q. B. 125. Every such bill of sale must contain, or have annexed, an Chap. VII. inventory of the personal chattels comprised therein, in which Schedule. the chattels must be "specifically described," and is void, Specific except as against the grantor, in respect of the chattels not so description. described.1 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 is sufficient to identify the particular chattels and to distinguish them from other things of the same class. be "true If the grantor is not, at the time of the execution of the bill of Grantor must sale, the true owner of any of the personal chattels specifically owner." described in the schedule, the bill is void in respect of such chattels, except as against the grantor.3 If a man has assigned his chattels by an absolute bill of sale, he is not the "true owner" of those chattels ; but he is the "true owner" if he has only assigned them by way of security. The person who is the legal owner of the chattels at the time of the execution of the bill of sale is a 66 true owner. The foregoing provisions as to schedule, description, and true Exception as ownership, do not render a bill of sale void as to (1) growing crops separately assigned, or (2) fixtures (separately assigned), plant, &c. plant, or trade machinery afterwards substituted for the like articles which were specifically described in the schedule. to crops, fixtures, chatteis. After-acquired chattels, except as aforesaid, which are not in Afterexistence at the time when the bill of sale is executed, are not acquired "personal chattels" within the Act, and, therefore, an instrument which assigns future property is not affected by the Act so far as it deals with such property, though the inclusion of such property in the body of a bill of sale will render it void, so far as it is a bill of sale within the Act.8 Every bill of sale given to secure the payment of money by the The form. 145 & 46 Vict. c. 43, s. 4. 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. 345 & 46 Vict. c. 43, s. 5. Tuck v. Southern, &c. Bank, 42 Ch. D. 471. 5 Thomas v. Searles, [1891] 2 Q. B. 408. 6 Re Sarl, [1892] 2 Q. B. 591. 7 45 & 46 Viet. c. 43, s. 6. See London, &c. Co. v. Creasey, [1897] 1 Q. B. 768. Ante, p. 97. 8 Thomas v. Kelly, 13 App. Cas. 506. See post, p. 104. As to assignments of future property, see post, p. 127. |