r"* -*^,-*A >V'^** i* -■ *■?■ - 1 
 
CJornpll Slam ^rljonl Kibrarg 
 
Cornell University Library 
 KD 1759.R96 1914 
 
 The hire-purchase system :A practical ma 
 
 3 1924 022 447 522 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022447522 
 
THE 
 
 HIRE-PURCHASE SYSTEM. 
 
 A PRACTICAL MANUAL OF HIRE-TRADE LAW 
 
 FOK 
 
 LAWYERS AND HIRE-TRADERS. 
 
 WITH 
 
 PRECEDENTS OF AGREEMENTS, &c 
 
 AND 
 
 COURT FORMS. 
 
 BY 
 
 \riLLIAM H.'^RUSSELL, 
 
 ^^^y>t^ 
 
 FIFTH EDITION. 
 
 LONDON : 
 
 STEVENS AND SONS, LIMITED, 
 
 119 & 120, CHANCERY LANE, 
 
 •gxxiss iitJrTtsIjm. 
 
 1914. 
 
( iii ) 
 
 PREFACE 
 
 TO THE FIFTH EDITION. 
 
 The preparation of this Edition, necessitated by 
 the continued demand for the-'feok, has afforded 
 an opportunity for a thorough revision, and to 
 such an extent has this been carried out, by the 
 re-writing of many sections, the omission of 
 obsolete parts, and the introduction of much 
 fresh matter, that a new work has, in effect, 
 been produced. 
 
 In the present Edition, the Author has 
 endeavoured to provide Lawyers and Hire- 
 Traders with a Manual which shall not only 
 state the law clearly, but also deal in a practical 
 manner with points which, judging from a 
 lengthy experience of the subject, are constantly 
 cropping up in the course of carrying on the 
 business of a Hire-Trader. 
 
 Detailed consideration has been given to The 
 Law of Distress Amendment Act, 1908, and 
 special sections are devoted to (amongst many 
 others) such matters as Clainis of Mortgagees and 
 
 a 2 
 
IV PREFACE TO THE FIFTH EDITION. 
 
 Debenture-Holders to Fixtures (with suggestions 
 for the protection of Owners), Guarantees, Liens,. 
 Pound-breach, and Licences to enter and seize on 
 I'etaking possession. In connection with the 
 last-mentioned subject, the summing-up of Lord 
 Russell of Killowen in the important unreported 
 case of Himmelspring v. The Singer Manufacturing 
 Co., is printed at the end of Chapter I. 
 
 Actions in Detinue, and for Conversion, Illegal 
 Distress, and Trespass to Goods, are dealt with 
 in detail, the practice in actions in Detinue, both 
 in the High Court and County Court, by means 
 of which an owner may obtain the return of his 
 goods in specie, being considered at length, and 
 specially drawn Court Forms provided. 
 
 The Precedents of Agreement contain 
 provisions enabling a hirer to pay up the 
 balance of his instalments in advance under 
 discount, and also to purchase or resume the 
 hiring after seizure of the goods for default. 
 
 As a reply to critics of the Hire-Purchase 
 System, an extract from the Judgment of 
 Lord Macnaghten, in Helby v. Matthews, set out 
 on page 45, is offered for their consideration. 
 
 In the Table of Cases cited, the dates of the 
 decisions are now given, with references which 
 include the Law Reports, Law Journal Reports, 
 
PREFACE TO THE FIFTH EDITION. V 
 
 Law Times Reports, Times Law Reports, and 
 Revised Reports. All cases reported to the date 
 below are included. 
 
 The Author is not, in any capacity, connected 
 with the Hire Traders' Protection Association, 
 but, having regard to the past and possible future 
 attacks upon the Hire-Purchase System, he 
 strongly advises every Hire-Trader, who is not 
 already a member, to join the Association, which 
 has done and is doing most valuable work for the 
 Hire Trade. The Secretary is Mr. Samuel J. 
 Sewell, of 27,, Chancery Lane, London, W.C. 
 The Author further commends to Hire Traders 
 and their legal advisers a systematic study of 
 The Hire Traders' Record^ the monthly organ of 
 the Association, as a reliable method of keeping 
 their knowledge of Hire Trade Law up to date. 
 
 W. H. R. 
 
 Cheltenham, 
 
 i^th January, 1914. 
 
( vii ) 
 
 PREFACE TO THE FIRST EDITION. 
 
 The object of the following pages is to give a general 
 statement of the law bearing upon the various points of 
 what is known as the " Hire-Purchase System." 
 
 No attempt appears to have been hitherto made to 
 collect the numerous decisions and statutes relating 
 to the subject, which are to be found widely scattered 
 in Reports, Acts of Parliament, and Text-Books. 
 
 The titles, only, of cases cited are given in the body 
 of the book, the references being inserted in the 
 Table of Oases. 
 
 The recent decision of the House of Lords in Helby v. 
 MatthewH is duly noted. 
 
 W. H. R. 
 
 Cheltenham, 
 
 June, 1895. 
 
( ix ) 
 
 CONTENTS. 
 
 PAQK 
 
 Cases Cited xi 
 
 Statutes Cited xlv 
 
 CHAPTER I. 
 
 The Nature and Geneeal Incidents of the Hike- 
 Purchase System, with an Addendum containing a 
 Eeprint of the Summing-Up in the Unreported 
 Case of HiiaiELSPHiNG v. The Sixger MANUFAcruBiNa 
 
 Co. AND HOBKE 1 
 
 CHAPTER II. 
 Distress for Rent, Rates, and Taxes 89 
 
 CHAPTER III. 
 
 Landlords', Mortgagees', and Debenture Holders' Claims 
 to Fixtures ' 130 
 
 CHAPTER IV. 
 
 Civil Proceedings by Owner against Hirer and Third 
 Parties, including Detinue, Conversion, Illegal 
 Distress, and Trespass to Goods 142 
 
CONTENTS. 
 
 MISCELLANEOUS FORMS. 
 
 1. Agreement by Landlord with Owner of hired goods, waiving 
 
 right of distress 117 
 
 2. Notice determining hiring, and demanding goods for the 
 
 purposes of The Distress Act, 1908, and as a preliminary 
 to an action in Detinue or for Conversion - 76 
 
 .■J. Authority by Company to a person to make Declaration 
 
 underTheDistress Act, 1908 - - -105 
 
 4. Owner's Declaration - 107 
 
 5. Under-tenant's or Lodger's Declaration - - lOS 
 
 6. Notice to Sheriff of claim to goods taken in execution 54 
 
 7. Ditto to High Bailiff 54 
 
 8. Memorandum of service to be endorsed on a duplicate 
 
 Notice 77 
 
 APPENDIX. 
 Paet I.— Precedents : — 
 
 1. Hire-Purchase Agreement (convertible into an 
 
 Agreement for Simple Hire) 170' 
 
 2. Hire-Purchase Agreement — Guarantor Joining 177 
 
 3. Guarantee to Owners of hired goods, by separate 
 
 document 179- 
 
 Part II. — Alternative and Additional Clauses for 
 
 INSERTION IN THE PRECEDENTS IN PART I. 179 
 
 Part III.— Clauses, &g. relating to Mortgage of Hirer's 
 
 Premises : — 
 
 1. Clause for insertion in Hire-Purchase Agreement- 183 
 
 2. Statutory Declaration, by Hirer, that his premises 
 
 are not mortgaged 184 
 
 3. Clauses for insertion in a Mortgage of the Hirer's 
 
 premises 18& 
 
 Part IV. — Court Eorms : — 
 
 1. High Court 186 
 
 2. County Court 190 
 
 INDEX - _ . 197 
 
( ^i ) 
 
 CASES CITED. 
 
 A. 
 
 PAOE 
 
 Abington i: Lipscombe (1841), 1 Q. B. 776 : 10 L. J. ft. B. 
 
 330 76, 159 
 
 Abraham v. Bullock (1902), 86 L. T. 796 ; 18 T. L. R. 701 ; 
 
 50 W. E. 626 70 
 Addison v. Sbepterd, (1908) 2 K. B. 118; 77 L. J. K. B. 534 ; 
 
 99 L. T. 121 114 
 
 Alderton v. Aidher (1884), 14 ft. B. D. 1 ; 54 L. J. ft. B. 12 ; 
 
 51 L. T. 661 25 
 Alexander, Ex parte, Ee Eslick (1876), 4 Oh. D. 496 ; 46 
 
 L. J. Bank. 30 ; 35 L. T. 914 100 
 
 V. Southey (1821), 5 B. & Aid. 247 ; 24 E. E. 348 160 
 
 Allan V. Liverpool (1874), 9 ft. B. 140; 43 L. J. M. 0. 69 ; 30 
 
 L. T. 93 60 
 
 Allen, In re, (1907) 1 Ch. 575 ; 76 L. J. Oh. 362 ; 96 L. T. 
 
 660 138, 139 
 
 Alwayes v. Broome (1695), 2 Lutw. 1259 124 
 
 American Concentrated Must Co. v. Hendry (1893), 62 L. J. 
 
 ft. B. 388; 68 L. T. 742 60, 67, 122 
 
 Anglesey, Ee, (1901) 2 Oh. 548 ; 70 L. J. Oh. 810 ; 85 L. T. 
 
 179 39 
 
 Anthony v. Haney (1832), 8 Bing. 186 ; 1 L. J. 0. P. 81 ; 34 
 
 E. E. 670 132, 145, 160 
 
 Appleby v. Franklin (1885), 17 ft. B. D. 93; 55 L. J. ft. B. 
 
 129 ; 54 L. T. 135 - 79 
 
 Armory v. Delamirie (1722), Smith's Lead. Gas. - 71, 143, 161 
 
 Astbury, Ex parte, Ee Eichards (1869), 4 Ch. 630; 38 L. J. 
 
 Bank. 9 ; 20 L. T. 997 - 132 
 
 Astrakhan, The, (1910) P. 172; 79 L. J. P. 78; 102 L. T. 
 
 539 146, 161 
 
 Atkin, Ex parte, Ee "Watson, (1904) 2 K. B. 753; 73 L. J. 
 
 K. B. 854; 11 Manson, 256 98 
 
 Attack V. Bramwell (1863), 3 B. & S. 520; 32 L. J. ft. B. 146; 
 
 7 L. T. 740 ; 129 E. E. 440 67, 165 
 
Xn CASES CITED. 
 
 PAGE 
 
 Attenborough ,. Solomon, (1913) A. C. 76; 82 L. J. Oh. 178; 
 
 107 L. T. 833 - - 142 
 
 Attorney-General v. Leicester Corporation, (1910) 2 Cli. 359 ; 
 
 8Q L. J. Ch. 21 ; 103 L. T. 214 116 
 ■ )•. Sheffield Corporation (1912), 106 L. T. 
 
 367; 28 T. L. E. 266; 56 S. J. 326 116 
 
 B. 
 
 Bail c. Mellor (1850), 19 L. J. Ex. 279 166 
 I Baker v. Lipton, Ltd. (1899), 15 T. L. E. 435 - 40 
 ! . Yorkshire Firo, &c., (1892) 1 Q. B. 144; 61 L. J. Q. B. 
 
 838 ; 66 L. T. 161 25 
 
 Ball, Ex parte (1879), 10 Ch. D. 667 ; 48 L. J. Bk. 57 ; 40 
 
 L. T. 141 79 
 
 Balme v.. Hutton (1833), 9 Bing. 471 ; 2 L. J. Ex. 116 160 
 
 Bannister i . Hyde (1860), 2 B. & E. 627 ; 29 L. J. Q. B. 141 ; 
 
 1 L. T. 438 ; 119 E. E. 878 67, 125 
 
 Barbour /•. S. E. Eailway Co. (1876), 34 L. T. 67 47 
 
 BarfE v. Probyn (1895), 64 L. J. Q. B. 557 ; 73 L. T. 118 131 
 
 Barker „. Furlong, (1891) 2 Ch. 172; 60 L. J. Ch. 368; 64 
 
 L. T. 411 14, 143 
 
 Bates V. Batey, (1913) 3 K. B. 351 ; 82 L. J. K. B. 963 ; 108 
 
 L. T. 1036 - 23 
 
 Bateson v. Gosling (1871), 7 C. P. 9 ; 41 L. J. C. P. 53 ; 25 
 
 L. T. 570 33 
 
 Biiyliss V. Fisher (1830), 7 Bing. 153; 9 L. J. C. P. 43; 33 
 
 E. E. 407 165 
 
 Beard v. Knight (1858), 8 E. & B. 865 ; 27 L. J. Q. B. 359 ; 
 
 112 E. E. 810 57 
 
 Beaumont v. Kaye, (1904) 1 K. B. 292 ; 73 L. J. K. B. 213 ; 
 
 90 L. T. 51 36 
 
 Becker v. Eiebold (1913), 30 T. L. E. 142 93, 109, 112, 117, 
 
 139, 164 
 Beckett v. Tower Assets Co., (1891) 1 Q. B. 638 ; 60 L. J. Q. B. 
 
 493; 64L. T. 497 114, 148 
 
 BeddaU v. Maitland (1881), 17 Ch. D. 174 ; 50 L. J. Ch. 401 ; 
 
 44 L. T. 248 69 
 
 BeU 0. Hamilton (1854), 10 Ex. 545; 24 L. J. Ex. 45; 102 
 
 E. E. 701 - 98, 102, 104 
 r. Midland Eailway Co. (1861), 10 C. B. 287 ; 30 L. J. C. P. 
 
 273; 4L. T. 293; 128E. E. 719 - 147 
 
CASES CITED. XUl 
 
 PAOE 
 
 Bennett v. Bayes (1S60), 5 H. & N. 391 ; 29 L. J. Ex. li24 ; 
 
 2L. T. 156; 120B. E. 654 110,111,164 
 
 Bensing v. Kumsej' (1898), 14 T. L. E. 344 92 
 
 Bentlcy r. Metcalfe, (1906) 2 K. B. 548 ; 75 L. J. K. B. 891 ; 
 
 95 L. T. 596 22 
 r. Vilmont(18S7), 12 App. Cas. 471 ; 57 L.J. Q. B. 18; 
 
 57 L. T. 854 19- 
 
 Berry v. Huckstable (1850), 14 Jur. 718 ; 1 Mows' Dig. 199 124 
 Bewley v. Atkinson (1879), 13 Cli. D. 283 ; 49 I,. J. C'li. 153 ; 
 
 41 L. T. 603 78 
 
 Biddle r. Bond (18G5), 6 B. & S. 225 ; 34 L. J. Q. B. 137 : 12 
 
 L. T. 178 ; 141 E. E. 387 ' 53, 143 
 
 Birch ('. Liverpool (1829), 9 B. & C. 392 ; 33 E. E. 212 24 
 
 Birkmyi- v. Darnell (1704), Smitli's Lead. Cas. 32: 
 
 Bishop V. Balkis Consolidated Co. (1890), 25 Q. B. D. 512 ; 59 
 
 L. J. Q. B. 565 : 63 L. T. 601 - 20, 105. 
 
 Black c. North British Eailway (1908), S. C. 444 Ct. of Ses>. ; 
 
 5 Mews' Dig. 1631 14T 
 
 Blades v. Higgs (1865), 11 11. L. Cas. 621 ; 34 L. J. C. P. 286; 
 
 12 L. T. 615 64, 72 
 
 Blakemore (or Blackmore) v. Bristol and Exeter Eailway Co. 
 
 (1858), 8 E. & B. 1035 ; 27 L. J. Q. B. 167 ; 112 E. E. 880 2a 
 Slewitt r. Tritton, (1892) 2 Q. B. 327; 61 L. J. Q. B. 773; 
 
 67 L. T. 72 29^ 
 
 Bodlewell, The, (1907) P. 286; 76 L. J. P. 61; 96 L. T. 
 
 854 146, 161 
 
 Bodley v. Eeynolds (1846), 8 Q. B. 779; 15 L. J. Q. B. 219; 
 
 70 E. E. 640 114, 147, 148, 162 
 
 Bolton V. Salmon, (1891) 2 Ch. 48; 60 L. J. Ch. 239; 64 
 
 L. T. 222 33 
 
 Boulton V. Eeynolds (1859), 2 E. & E. 369 ; 29 L. J. Q. B. 11 ; 
 
 IL. T. 166; 119 E. E. 765 110 
 
 Boyd '•. Bilham, (1909) 1 K. B. 14; 78 L. J. K. B. 50; 99 
 
 L. T. 780 114 
 
 V. Profaze (1867), 16 L. T. 432 67 
 
 Boydell v. Drummond (1809), 11 East, 142; 2 Camp. 157; 
 
 10 E. E. 450 - 26 
 
 Bradley v. BayUs (1881), 8 Q. B. D. 195; 51 L. J. Q. B. 183; 
 
 46 L. T. 253 - 92 
 
 V. Eamsay (1912), 106 L. T. 771 ; 28 T. L. E. 388 74 
 
 Bramwell i: Eglinton (1864), 5 B. & S. 39 ; 33 L. J. Q; B. 
 
 130; lOL. T. 295; 136E. E. 478 - 43 
 
XIV CASES CITED. 
 
 PAGE 
 
 Brandts & Co. v. Dunlop Rubber Co., (1905) A. C. 454; 74 
 
 L. J. K.. B. 898 ; 93 L. T. 495 83 
 
 Brierley v. Kendall (1852), 17 Q. B. 937 ; 21 L. J. Q. B. 161 ; 
 
 86 R. R. 736 - 168 
 
 Brind v. Dale (1837), -2 M. & Rob. 80; 8 C. & P. 207; 56 
 
 R. R. 843 51 
 
 Brinsmead i: Harrison (1871), 7 C. P. 547 ; 41 L. J. 0. P. 190; 
 
 27 L. T. 99 74 
 
 Bristol, &c. Bank v. Midland Railway Co., (1891) 2 Q. B. 
 
 653 ; 61 L. J. Q. B. 115 ; 65 L. T. 234 145, 158 
 
 Tramways v. Fiat Motors, (1910) 2 K. B. 831 ; 79 L. J. 
 
 K. B. 1107; 103 L. T. 443 22 
 
 Britain v. Rossiter (1879), U Q. B. D. 123 ; 48 L. J. Ex. 362; 
 
 40 L. T. 240 - - 26 
 
 British Columbia Electric Railway v. Stewart (1914), 83 L. J. 
 
 P. C. 53 - - 93 
 
 Economical Lamp Co. v. Empire Mile End (1913), 29 
 
 T. L. R. 386 - - 132 
 
 Mutoscope, &c. Co. v. Homer, (1901) 1 Ch. 671 ; 70 
 
 L. J. Cb. 279 ; 84 L. T. 26 127 
 
 Waggon Co. V. Lea (1880), 5 Q. B. D. 149; 49 L. J. 
 
 Q. B. 321 ; 42 L. T. 437 82 
 
 Westingbouse, &c. v. Underground, &c., (1912) A. 0. 
 
 673 ; 81 L. J. K. B. 1132 ; 107 L. T. 325 - - 23 
 
 Broadwood v. Granara (1854), 10 Ex. 417 ; 24 L. J. Ex. 1; 
 
 102 R. R. 651 - - 52 
 
 Brooks, Ex parte, Re Fowler (1883), 23 Ch. D. 261 ; 48 L. T. 
 
 453 - 103, 104 
 
 V. Beitnstein, (1909) 1 K. B. 98; 78 L. J. K. B. 243; 
 
 99 L. T. 970 - - - 72, 73, 74 
 
 Brown v. Glenn (1851), 16 Q. B. 254 ; 20 L. J. Q. B. 205 ; 83 
 
 R. R. 446 - - - - 67 
 
 V. Metropolitan Counties, &c. Society (1859), 1 El. & 
 
 El. 832 ; 28 L. J. Q. B. 236 - §1 
 
 Browne v. Blaine (1884), 1 T. L. R. 158 5, 34 
 
 Bruner v. Moore, (1904) 1 Cb. 305; 73 L. J. Ch. 377; 89 
 
 L. T. 738 - 44 
 
 Bryant V. Herbert (1877), 3 C. P. D. 389; 47 L. J. C. P. 670; 
 
 39 L. T. 17 - - - ' 153 
 
 V. Warden (1848), 2 Ex. 479 - 143 
 
 Bryson-y. Gamage, (1907) 2 K. B. 630; 76 L. J. K. B. 936; 
 
 9.7 L. T. 399 ' 23 
 
CASES CITED. XV 
 
 PAGE 
 
 BuUen v. Swan Electric, &c. Co. (1907), 23 T. L. B. 258 48 
 
 BuUock V. Dunlap (1876), 2 Ex. D. 43 ; 46 L. J. Ex. 150 ; 35 
 
 L. T. 633 20 
 
 Burdett v. Home (1911), 28 T. L. R. 83 37 
 
 Burnardt;. Haggis (1863), 14 C. B. 45; 32 L. J. 0. P. 189; 
 
 8 L. T. 320; 135 R. E. 593 35, 47 
 
 Biirrouglies c. Bayne (1860), 5 H. & N. 296 ; 29 L. J. Ex. 
 
 185 ; 2 L. T. 16 ; 120 E. E. 594 145, 151, 158, 160 
 
 Burrows v, Barnes (1900), 82 L. T. 721 12, 74 
 
 Burt V. Haslett (1856), 18 C. B. 893; 25 L. J. C. P. 295; 107 
 
 E. E. 553 130 
 
 Burton v. Hughes (1824), 2 Bing. 173; 3 L. J. 0. P. 241; 
 
 27 E. E. 578 143 
 
 Bushell V. Miller (1718), 1 Stra. 128 167 
 
 Cahn V. Pockett's, &c. Co., (1899) 1 Q. B. 643 ; 68 L. J. Q. B. 
 
 515 ; 80 L. T. 269 - 9 
 
 Capel V. Buszard (1829), 6 Bing. 150 ; 32 E. E. 359 121 
 
 ■Carter v. St. Mary Abbots (1900), 64 J. P. 548 164 
 
 V. Salmon (1880), 43 L. T. 490 - 112 
 
 €astleman v. Hicks (1842), Car. & M. 266 ; 66 E. E. 864 124 
 
 Ohandler c. Doulton (1865), 3 H. & C. 553 ; 34 L. J. Ex. 89; 
 
 140 E. E. 602 166 
 
 €liaplin v. Barnett (1912), 28 T. L. E. 256 149 
 
 Ohapman v. Beecbam (1842), 3 Q. B. 723; 12 L. J. Q. B. 42 ; 
 
 61 E. E. 373 120 
 
 Chappell V. Harrison (1910), 103 L. T. 594 ; 27 T. L. E. 85 ; 
 
 75 J. P. 20 98, 101, 102, 104, 105 
 
 ■Cbeesman v. ExaU (1851), 6 Ex. 341 ; 20 L. J. Ex. 209; 86 
 
 E. E. 321 53 
 
 Ohesham v. Beresford (1913), 29 T. L. E. 584 - 50, 51, 52 
 
 Cbesbire v. Bailey, (1905) 1 K. B. 237 ; 74 L. J. K.B. 176; 
 
 92 L. T. 142 - 48, 70 
 
 OhUdt-. Edwards, (1909) 2 K. B. 753; 78 L. J. K. B. 1061 ; 
 
 101 L. T. 422 - - 119 
 
 Cbilton u. Carrington (1854), 16 C. B. 206; 24 L. J. C. P. 10 ; 
 
 100 E. E. 256 - - 52 
 
 Cibinery v. ViaE (1860), 5 H. & N. 288; 29 L. J. Ex. 180; 
 
 2 L. T. 466 ; 120 E. E. 588 46 
 
 Oburchward v. Johnson (1889), 54 J. P. 326 - 114 
 
XVI CASES CITED. 
 
 PAGE 
 
 Claphani v. Olivoi- (1874), 30 L. T. 365 ; 22 W. B. 655 163 
 
 Clarke v. Birley (1889), 41 Ch. D. 422 ; 58 L. J. Ch. 616 ; 60 
 
 L. T. 948 - 33 
 
 Clayton r. Le Eoy, (1911) 2 K. B. 1031; 81 L. J. K. B. 49; 
 
 105 L. T. 430 13, 17, 144, 159, 160 
 
 Clements r. Flight (1846), 16 M. & W. 42 ; 16 L. J. Ex. 11 ; 
 
 73 E. E. 421 - 77 
 
 Clifford V. Commissioners, (1896) 2 Q. B. 187 ; 65 L. J. Q. B. 
 
 5S2 ; 74 L. T. 699 28 
 
 Clyde Cycle Co. v. Hargreaves (1898), 78 L. T. 296; 14 
 
 T. L. E. 338 35 
 
 Clydesdale Bank r. Paton, (1896) A. C. 381 ; 65 I>. J. P. C. 
 
 73; 74 L. T. 738 - 21 
 
 Cochrane .-. Moore (1890), 25 Q. B. D. 57 ; 59 L. J. Q. B. 
 
 377; 63 L. T. 153 10' 
 
 ,■. Eymill (1879), 27 W. E. 776; 40 L. T. 744 14 
 
 Coggs V. Bernard (1704), Smith's Lead. Cas. 1, 47, 48, 52 
 
 Cohen, Ex parte, Ee Sparko (1871), 40 L. J. Bank. 14; 19 
 
 W. E. 126 lOO 
 .'. Foster (1892), 61 L. J. Q. B. 643; 66 L. T. 616; 
 
 S T. L. E. 519 163 
 
 Cointat v. Myham, (1913) 2 K. B. 220; 82 L. J. K B. 551 ; 
 
 108 L. T. 556 ; reversed (1914), 30 T. L. E. 282 23 
 
 Collier V. Nokes (1849), 5 Ex. 275 ; 2 Car. & K. 1012 - 11& 
 
 Comite des Assureurs Maritimes v. Standard Bank of South 
 
 Africa (1882), 1 Cab. & E. 87 56. 
 
 Commei'cial Bank of Tasmania v. Jones, (1893) A. C. 313 ; 62 
 
 L. J. P. C. 104 ; 68 L. T. 776 ' 33. 
 
 Consolidated Co. v. Curtis, (1892) 1 Q. B. 495 ; 61 L. J. Q,. B 
 
 325; 40W. E. 426 " 10,' 15, 158 
 
 Cook V. Moylon (1847), 1 Ex. 67 ; 16 L. J. Ex. 253 27 
 
 Cookson V. Swire (1885), 9 App. Cas. 653 ; 54 L. J. Q. B. 249- 
 
 52 L. T. 30 I 95, 
 
 Coomes V. Hayward, (1913) 1 K. B. 150; 82 L. J. K. B. 117; 
 
 107 L. T. 715 I 149. 
 
 Cooper V. Barton (1810), 3 Camp. 5 (n.); 13 E. E. 736 (n.) 48 
 
 ■ • V. Willomatt (1845), 1 C. B. 672 ; 14 L. J. C. P. 219 • 
 
 68 E. E. 798 - 6, 16, 47, 146 
 
 Coster V. Headland, (1906) A. C. 286; 75 L. J. K. B. 483 • 94 
 
 L. T. 589 ' . ^25. 
 
 CougHin V. Gillison, (1899) 1 Q. B. 145; 68 L. J. Q. B. 147 • 
 
 79 L. T. 627 •'_ ^.^ 
 
CASES CITED. XVII 
 
 FAOE 
 
 County of Durham, &c. Co. v. Commissioners, (1909) 2 K. B. 
 
 604 ; 78 L. J. K. B. 1158 ; 101 L. T. 51 - 27, 28 
 
 Cowem V. Nield, (1912) 2 K. B. 419 ; 81 L. J. K. B. 865 ; 106 
 
 L. T. 984 - - 35. 
 
 Cox V. Harper, (1910) 1 Ck 480; 79 L. J. Ch. 307; 102 L. T. 
 
 438 90 
 
 Crabtree r. Eobinson (1885), 15 Q. B. D. 312 ; 54 L. J. Q. B. 
 
 544 ; 50 J. P. 70 65, 66, 68 
 
 Craoe, In re, (1902) 1 Ch. 733 ; 71 L. J. Ch. 358 ; 86 L. T. 144 - 33 
 Cramer v. Giles (1883), 1 Cab. & Ellis, 151. On appeal, 87 Law 
 
 Times Journal, 421 ; Sol. Jour. 1889, p. 780 72 
 
 Crane v. London Dock Co. (1864), 5 B. & S. 313; 33 L. J. 
 
 Q. B. 224; 10 L. T. 372 16 
 
 ■ V. Ormerod, (1903) 2 K. B. 37 ; 72 L. J. K. B. 507 ; 89 
 
 L. T. 45 - - - 55 
 
 Crawcour, Ex parte, Ee Eobertson (1878), 9 Ch. D. 419; 47 
 
 L. J. Bank. 94 ; 39 L. T. 2 - 2 
 ■ V. Salter (1881), 18 Ch. D. 30; 51 L. J. Ch. 495; 
 
 45 L. T. 62 - - 101, 103; 
 
 Croft V. Lumley (1858), 5 B. & B. 648 ; 6 H. L. Ca. 672 ; 27 
 
 L. J. Q. B. 321 ; 103 E. E. 663 44 
 
 ■ Crosier t'. Tomkinson (1759), 2 Ld. Ken. 439 116 
 
 Crosse v. Welch (1892), 8 T. L. E. 709 127 
 
 Crossfield v. Such (1852), 8 Ex. 159; 22 L. J. Ex. 65; 91 
 
 E. E. 789 - - 147, 149, 155 
 
 Crossley, Ex parte, Ee Peel, (1895) A. C. 457; 64 L. J. P. C. 
 
 129; 72L. T. 731- 101 
 !•. Lee, (1908) 1 K. B. 86; 77 L. J. K. B. 199; 97 
 
 L. T. 850 - - - 117 
 
 Croydon Gas Co. u. Dickenson (1876), 2 C. P. D. 46 ; 46 L. J. 
 
 C. P. 157 ; 35 L. T. 943 - 33 
 
 Crumelin Viaduct Works Co., Ee (1879), 11 Oh. D. 755; 48 
 
 L. J. Ch. 537 ; 27 W. E. 722 - - 58 
 
 Cuenod v. Leslie, (1909) 1 E. B. 880; 78 L. J. K. B. 695; 100 
 
 L. T. 675 - - 36 
 
 Cullen V. Barclay (1881), 10 L. E. (Ir.) 224 ; 1 Mews Dig. 
 
 972 144, 154 
 
 Cumberland, &c. Co. v. Maryport, (1892) 1 Ch. 415 ; 61 L. J. 
 
 Ch. 227 ; 66 L. T. 108 133 
 
 Cunningham v. Philip (1896), 12 T. L. E. 352 - 52, 103 
 
 R. 
 
XVlll CASES CITED. 
 
 D. 
 
 PAOE 
 
 Dare v. Bognor (1912), 28 T. L. E. 489; 76 J. P. 425; 10 
 
 L. G. E. 797 22 
 
 Dartford Brewery ". Moseley, (1906) 1 K. B. 462 ; 75 L. J. 
 
 K. B. 279 ; 94 L. T. 263 150 
 
 Davenport v. The Queen (1877), 3 App. Oas. 115; 47 L. J. 
 
 P. C. 8 ; 37 L. T. 727 - 44 
 
 Dayies, Ex parte, Ee Sadler (1881), 19 Oh. D. 86 ; 45 L. T. 
 
 632 ; 30 W. E. 237 - 53, 143 
 „. Vernon (1844), 6 Q. B. 450; 14 L. J. Q,. B. 30; 66 
 
 E. E. 457 160 
 
 Davis V. Artingsall (1880), 49 L. J. Ch. 609 ; 42 L. T. 507 161 
 
 ('. Garrett (1830), 6 Bing. 716; 8 L. J. 0. P. 253; 31 
 
 E. E. 524 47 
 
 V. Harris, (1900) 1 U. B. 729 ; 69 L. J. Q. B. 232 ; 81 
 
 L. T. 780 113 
 
 V. Hedges (1871), 6 Q. B. 687 ; 40 L. J. Q. B. 276 ; 25 
 
 L. T. 155 - 23 
 
 r. Oswell (1837), 7 C. & P. 804 ; 48 E. E. 850 114, 148 
 
 ■ V. Eeilly, (1898) 1 Q. B. 1 ; 66 L. J. Qt. B. 844 ; 77 
 
 L. T. 399 42 
 
 Davison, Ex parte (1896), 60 J. P. 808 - 20 
 
 Davys v. BusweU, (1913) 2 K. B. 47 ; 82 L. J. K. B. 499 ; 108 
 
 L. T. 244 32 
 
 Dayv. McLea(1889), 22Q. B. D. 610; 58 L. J. Q. B. 293; 
 
 60 L. T. 947 40 
 
 Debtor, Ex parte, (1908) 1 K. B. 344; 77 L. J. K. B. 409 ; 98 
 
 L. T. 652 41, 42 
 
 , In re a. Ex parte The Petitioning Creditor (1907), 97 
 
 L. T. 140; 23 T. L. E. 618; 14 Manson, 198 74 
 , In re. No. 14 of 1913, (1913) 3 K. B. 11 ; 82 L. J. 
 
 K. B. 907 ; 109 L. T. 323 ; 20 Manson, 119 33 
 
 De Gorter v. Attenborough (1904), 21 T. L. E. 19 8 
 
 Delaney v. Wallis (1884), 14 L. E. Ir. 31 ; 15 Oox, C. 0. 525 ; 
 
 4 Mews' Dig. 1416 - 10, 16 
 
 Devaux v. SteinkeUer (1839), 6 Bing. N. 0. 89 ; 9 L. J. C. P. 
 
 30 ; 54 E. E. 734 - - 20 
 
 Dewar v. Mintoft, (1912) 2 K. B. 373 ; 81 L. J. K. B. 885 ; 
 
 106 L. T. 763 - - 26 
 
 V. Tasker (1907), 23 T. L. E. 259 70 
 
 Dibble v. Bowater(18o3), 2 E. & B. 564 ; 22 L. J. Q. B. 396 ; 
 
 95 E. E. 701 - 119 
 
CASES CITED. XIX 
 
 FAOX 
 
 Doe V. Ooiirtenay (1848), 11 Q. B. 702 ; 17 L. J. Q. B. 151 97 
 
 -^ — V. Gladwin (1845), 6 Q. B. 953 ; 14 L. J. Q. B. 189 ; 66 
 
 E. E. 611 - - 49 
 
 — — d. Baker r. Jones (1850), 5 Ex. 498 ; 19 L. J. Ex. 405 ; 
 
 82 E. E. 742 44 
 
 V. Poole (1848), 11 Q. B. 713 ; 17 L. J. Q. B. 143 97 
 
 V. Somerton (1845), 7 Q. B. 58 ; 14 L. J. Q. B. 210 ; 68 
 
 E. E. 404 78 
 
 V. Woodman (1807), 8 East, 227 ; 9 E. E. 422 32 
 
 Dollar i'. Parkington (1901), 84 L. T. 470 25, 26 
 
 Donald v. Suckling (1866), 1 Q. B. 585 ; 35 L. J. Q. B. 232 ; 
 
 14 L. T. 772 - 47, 144 
 
 Donovan v. Laing, (1893) 1 Q. B. 629; 63 L. J. Q. B. 25; 68 
 
 L. T. 512 - - 70 
 
 Dorman, Ex parte, Ee Lake (1872), 8 Ch. D. 51 ; 42 L. J. Bk. 
 
 20 ; 27 L. T. 528 - 99 
 
 Douglass c. Ehyl, (1913) 2 Ch. 407 ; 82 L. J. Ch. 537 ; 109 
 
 L. T. 30 ; 29 T. L. E. 605 - - - 31 
 
 Dover v. Child (1876), 1 Ex. D. 172; 45 L. J. Ex. 462; 34 
 
 L. T. 737 - 20, 111 
 
 Drake, Ex parte (1877), 5 Oh. D. 866 ; 46 L. J. Bk. 105 ; 36 
 
 L. T. 677 - - 72, 74 
 
 Dudley v. Spittle (1860), IJ. & H. 14 ; 2 L. T. 47 ; 128 E. E. 
 
 248 79 
 
 Du Pasquier v. Cadbury, (1903) 1 K. B. 104; 72 L. J. K. B. 
 
 78; 87 L. T. 519 153 
 
 Durham v. Fowler (1889), 22 Q. B. D. 394 ; 58 L. J. Q. B. 
 
 246; 60 L. T. 486- 33 
 
 Dyer, Ex parte, Ee Taylor (1885), 34 "W. E. 108; 53 L. T. 
 
 768 ; 2 Mor. 269 102 
 V. Munday, (1895) 1 Q. B. 742; 64 L. J. Q. B. 448; 72 
 
 L. T. 448 60, 69 
 
 E. 
 
 Eagleton v. Ghitteridge (1843), 11 M. & "W. 465; 12 L. J. Ex. 
 
 359 ; 63 E. E. 655 ... 67 
 
 Earle v. Eiingscote, (1900) 2 Ch. 585 ; 69 L. J. Ch. 725 ; 83 
 
 L. T. 377 . . - . 36 
 
 Easton Estate, &c. Co. v. Western Wagon, &c. Co. (1886), 54 
 
 L. T. 735 - - - 115 
 
 Eberle's Hotels v. Jonas (1887), 18 Q. B. D. 459; 56 L. J. 
 
 Q. B. 278 ... 149_ 151, 153, 155 
 
 6 2 
 
XX CASES CITED. 
 
 PAOE. 
 
 Edmunds v. WaUingford (1885), 14 Q. B. D. 811 ; 54 L. J. 
 
 Q. B. 305 ; 52 L. T. 720 - - - 49^ 
 
 Edwards v. Hooper (1843), 11 M. & W. 363 ; 12 L. J. Ex. 304 - 159 
 
 V. Vaiiglian (1910), 26 T. L. E, 545 . - 7 
 
 Edwiok V. Hawkes (1881), 18 Oh. D. 199 ; 50 L. J. Oh. 577 ; 
 
 45 L. T. 168 62, 69- 
 
 Eldridge v. Stacey (1863), 15 0. B. 458; 9 L. T. 291; 137 
 
 E. E. 601 - 66, 67, 125. 
 
 Electric SupplyStoresi;. Gay wood (1909), lOOL.T. 855- 47, 51 
 
 Ellis r. Glover, (1908) 1 K. B. 388; 77 L. J. K. B. 251 ; 98 
 
 L. T. 110 135, 136, 140. 
 
 Elwes V. Maw (1802), 3 East, 38 ; Smith's Lead. Oas. - 56 
 
 Emblen v. Myers (1861), 6 H. & N. 54 ; 30 L. J. Ex. 71 ; 
 
 2 L. T. 774 ; 123 E. E. 380 147 
 
 Emerson, Ex parte, Ee Hawkins (1871), 41 L. J. Bank. 20; 
 
 20 W. E. 110 - 104 
 
 Eungblut V. Martin. See Eogers v. Martin. 
 Evans v. Wright (1857), 2 H. & N. 527 ; 27 L. J. Ex. 50 ; 
 
 115 E. E. 679 - - - 12a 
 
 Exall V. Partridge (1799), 8 Term Eep. 308 ; 1 E. E. 656 49 
 
 P. 
 
 Fancett v. Bierman (1897), 14 T. L. E. 148 14 
 
 Farrant v. Barnes (1862), 11 C. B. 553 ; 31 L. J. 0. P. 137 ; 
 
 132 E. E. 667 - - 23 
 
 FeU V. Whittaker (1871), 7 Q. B. 120 ; 41 L. J. Q. B. 78 ; 25 
 
 L. T. 880 ' - 166. 
 
 Fenn v. Bittleston (1851), 7 Exch. 152 ; 21 L. J. Ex. 41 ; 86 
 
 E. E. 593 - - 65, 145, 164 
 
 Fenner v. Blake, (1900) 1 Q. B. 426; 69 L. J. Q. B. 257; 82 
 
 L. T. 149 - - 97 
 
 Finch V. Blount (1836), 7 0. & P. 478 - - - 161, 162 
 
 Fine Art Society v. Union Bank of London (1886), 17 Q. B. D. 
 
 705 ; 56 L. J. Q. B. 70 ; 55 L. T. 536 - - 13. 
 
 Firth V. Purvis (1793), 5 Term Eep. 432 ; 2 E. E. 637 - - 124 
 
 Fisher, In re, (1894) 1 Oh. 450; 63 L. J. Ch. 235 ; 70 L. T. 62- 150 
 Fletcher, Ex parte, Ee Bainhridge (1878), 8 Ch. D. 218 ; 47 
 
 L. J. Bk. 70 ; 38 L. T. 229 - - 99- 
 
 V. Atkinson (1911), 132 L. T. Jour. 93; 46 Law 
 
 Journal, 739 - - 31 
 t: Marillier(1839), 9 A. & E. 457 ; 8 L. J. Q. B. 176- 122 
 
CASES CITED. Xxi 
 
 Poi-ster V. Farquhar, (1893) 1 Q. U. 504 ; 62 L. J. (i. B. 296; 
 
 68 L. T. 308 147, 162 
 
 Fouldsr. Willoiighby (1841), 8 M. & W. 549; 10 L. J. Ex. 
 
 364; 58 E. E. 810 167 
 
 Poulger V. Taylor (1860), 5 H. & N. 202 ; 29 L. J. Ex. 154 ; 
 
 1 L. T. 57; 120 E. E. 642 57 
 
 Ei-ance v. Gaudet (1871), 6 Q. B. 199 ; 40 L. J. Q. B. 121 ; 19 
 
 W. E. 622 - 147 
 
 Franklin v. Neate (1844), 13 M. & W. 481 ; 14 L. J. Ex. 59 ; 
 
 23 E. E. 305 82 
 
 Freeman r. Cook (1848), 2 Ex. 054; 18 L. J. Ex. 114; 76 
 
 E. E. 711 9 
 
 V. Edwards (1848), 2 Ex. 732 ; 17 L. J. Ex. 258 120 
 
 V. Eoster (1849), 13 U. B. 780 ; 18 L. J. Q. B. 340 ; 
 
 78 E. E. 514 109, 164 
 
 Frith V. Frith, (1906) A. C. 254; 75 L. J. P. C. 50; 94 L. T. 
 
 383 . 61 
 
 Eurness Finance Co., Ex parte, Ee Seaman, (1896) 1 Q. B. 
 
 412 ; 65 L. J. Q. B. 348 ; 74 L. T. 151 100 
 
 G. 
 
 G-adsden c. Barrow (1854), 9 Ex. 514; 23 L. J. Ex. 134; 96 
 
 E. E. 818 143 
 
 GaKIeo, The, (1914) P. 9; 30 T. L. E. 86; 18 Com. Cas. 146 48 
 ■Garnett v. Bradley (1878), 3 App. Cas. 944 ; 48 L. J. Ex. 186; 
 
 39 L. T. 261 125 
 
 Gas Light & Coke Co. v. Hardy (1886), 17 Q. B. D. 619; 
 
 56 L. J. Q. B. 168 ; 55 L. T. 585 116 
 
 Gebrader Naf v. Ploton (1890), 25 Q. B. D. 13 ; 59 L. J. Q. B. 
 
 371 ; 63 L. T. 328 53 
 
 Gelmini v. Moriggia, (1913) 2 K. B. 549; 82 L. J. Z. B. 949 ; 
 
 109 L. T. 77 34, 148, 162 
 
 ■Gibson 1^. Bray (1817), 8 Taunt. 76; 1 Moore, 519; 19 E. E. 
 
 460 99 
 GUes V. Spencer (1857), 3 C. B. 253; 26 L. J. C. P. 237; 
 
 111 E. E. 646 117 
 Gill V. Bright (1871), 41 L. J. M. 0. 22 ; 25 L. T. 591 ; 36 J. P. 
 
 198 111 
 
 Gillespie v. Cheney, (1896) 2 Q. B. 59 ; 65 L. J. Q. B. 552 22 
 
 Gillingham v. Gwyer (1867), 16 L. T. 640 121 
 Olasdir Copper Mines, In re, (1904) 1 Ch. 819 ; 73 L. J. Ch. 
 
 461 ; 90 L. T. 412; 11 Manson, 224 131, 132 
 
XX U CASES CITEU. 
 
 PAOK 
 
 Gledstone v. Hewitt (1831), 1 Or. & J. 555; 9 L. J. Ex. 145 
 
 142, 144 
 
 Glenwood Lumber Co. v. Phillips, (1904) A. 0. 405; 73 
 
 L. J. P. C. 62 ; 90 L. T. 741 143 
 
 Godlonton v. Fulham, &c. Co., (1905) 1 K. B. 431 ; 74 L. J. K. B. 
 
 242 ; 92 L. T. 362 - - lOT 
 
 Goldsiede v. Cottrell (1836), 2 M. & W. 20; 6 L. J. 
 
 Ex. 26 41 
 
 Goodlock V. Cousins, (1897) 1 Q. B. 558; 66 L. J. Q. B. 360; 
 
 76 L. T. 313 o5' 
 
 Gordon v. Chief Commissioner, (1910) 2 K. B. 1080; 79 
 
 L. J. K. B. 957; 103 L. T. 338 21 
 
 ■ V. Harper (1796), 7 Term Eep. 9 ; 2 Esp. 465 ; 4 E. E. 
 
 369 - 49, 142, 159, 164 
 
 Gorringe v. Irwell (1886), 34 Ch. D. 128 ; 53 L. J. Oh. 85 ; 55 
 
 L. T. 572 - 58. 
 
 Gorton v. Falkner (1792), 4 Term Eep. 565 ; 2 E. E. 463 117 
 
 Goughi;. Wood, (1894) 1 Q. B. 713; 63 L. J. G. B. 564; 70 
 
 L. T. 297 - - 132, 133, 134, 136 
 
 Gould, Ex parte, Ee Walker (1884), 13 Q. B. D. 454 ; 51 
 
 L. T. 368 131 
 
 V. Bradstock (1812), 4 Taunt. 562 67 
 
 Graham v. Wichelo (1832), 1 Cr. & M. 188 ; 2 L. J. Ex. 70 ; 
 
 38 E. E. 605 97 
 
 Grande Maison D' Automobiles, Ltd. v. Beresford (1909), 25 
 
 T. L. E. 522 T 
 
 Grangers. George (1826), 5 B. & C. 149 ; 29 E. E. 196 - 148, 162 
 
 V. Hill (1838), 5 Scott, 561 ; 7 L. J. 0. P. 85 - - 159' 
 
 Great Northern Eailway v. Swaffleld (1874), 9 Ex. 132 ; 43 
 
 L. J. Ex. 89 ; 30 L. T. 562 - 52' 
 
 Green v. Duokett (1883), 11 Q. B. D. 275 ; 52 L. J. Q. B. 435 ; 
 
 48 L. T. 677 49, 53 
 
 Gregg V. Wells (1839), 10 A. & E. 90 ; 8 L. J. Q. B. 193 ; 50 
 
 E. E. 347 " - » 
 
 Gresham House, &c. v. Eossa, &c. (1870), W. N. 119 - lia 
 
 Griffiths Cycle Corporation v. Humber, (1899) 2 Q. B. 414 ; 68 
 
 L. J. Q. B. 959 ; 81 L. T. 310 26 
 
 Grimwood v. Moss (1872), 7 0. P. 360 ; 41 L. J. C. P. 239 ; 
 
 27 L. T. 268 . 120' 
 
 Groom v. Bluck (1841), 2 M. & Gr. 567 ; 10 L. J. C. P. 105 49' 
 
 Grunnell v. Welch, (1906) 2 K. B. 555 ; 75 L. J. K. B. 657 ; 95 
 
 L. T. 238 - 67, 12t 
 
 Gurr u. Eutton (1816), Holt, 327 - 98 
 
CASES CITED. XXUl 
 
 H. 
 
 PAGE 
 
 Hackney Furnislimg Co. v. Watts, (1912) 3 K. B. 225; 81 
 
 L. J. K. B. 993 ; 106 L. T. 676 94, 96, 100, 107 
 
 HaU V. White (1827), 3 Oar. & P. 136 - - 168 
 
 Hamilton r. Vaughan, (1894) 3 Ch. 589 ; 63 L. J. Oh. 795 ; 
 
 71 L. T. 325 - - - 35 
 
 Hammerton i: Stead (1824), 3 B. & 0. 478 ; 3 L, J. K. B. 33 ; 
 
 27 E. E. 407 - 97 
 
 Hammond c. Plank (1794), Peake, 166 (n) ; 14 Mews' Dig. 
 
 279 78 
 
 Hanau r. Ehrlich, (1912) A. 0. 39; 81 L. J. K. B. 397; 106 
 
 L. T. 1 - 25 
 
 Hancock v. Austin (1863), 14 C. B. 634; 32 L. J. C. P. 252; 
 
 8 L. T. 420 ; 135 E. E. 847 67 
 
 Hargreave v. Spink, (1892) 1 Q. B. 25 ; 61 L. J. Q. B. 318 ; 
 
 65 L. T. 650 - - 17 
 
 Harris, Ex parte (1885), 16 Q. B. D. 130; 55 L. J. M. 0. 24 ; 
 
 53 L. T. 655- 92, 105, 107 
 
 V. Fiat Motors (1907), 23 T. L. E. 504 - 70 
 
 i: Huntback (1757), 1 Burr. 373 33, 36 
 
 r. Truman (1882), 9 Q. B. D. 264 ; 51 L. J. Q. B. 338 ; 
 
 46 L. T. 844 102 
 
 Harrison, Ex parte, Ee Peake (1884), 13 Q. B. D. 753; 53 
 
 L. J. Ch. 977 ; 51 L. T. 878 ' 127 
 Ee, Ex parte The Official Eeceiver (1893), 67 L. T. 
 
 600 ; 10 Morrell, 1 - - 58 
 
 Hart I. Leach (1836), 1 M. & W. 560; 5 L. J. Ex. 2-14; 46 
 
 E. E. 399 - - 126 
 
 Hartley v. Moxham (1842), 5 Q. B. 247 ; 12 L. J. Q. B. 41 ; 
 
 61 E. E. 359 „ 167 
 
 Hartop i!. Hoare (1748), 3 Atk. 52 ; Strange, 1187 ; 1 Wils. 9 13 
 Harvey, Ee (1913). See HoUingshead v. Bgan. 
 Haseler v. Lemoyne (1859), o C. B. 530; 28 L. J. C. P. 103; 
 
 116E. E. 753 - 166 
 
 Hastings v. Pearson, (1893) 1 Q. B. 62 ; 62 L. J. Q. B. 75 ; 67 
 
 L. T. 553 8 
 Corporation v. Letton, (1908) 1 K. B. 378 ; 77 L. J. 
 
 K. B. 149 ; 97 L. T. 582 34 
 
 Hatch V. Hale (1850), 15 Q. B. 10; 19 L. J. Q. B. 289; 81 
 
 E. E. 480 - - 110 
 
 Hattersley, Ex parte, Ee Blanchard (1878), 8 Ch. D. 601 ; 47 
 
 L. J. Bank. 113 ; 38 L. T. 619 102 
 
XXIV CASES CITED. 
 
 FAOE 
 
 Haviside, Ex parte, Ee Button, (1907) 2 K. B. 180 ; 76 L. J. 
 
 KB. 833 ; 97 L. T. 71 ; 14 Manson, 180 - 08 
 
 Head v. Briscoe (1833), 5 C. & P. 484; 38 E. E. 841 37 
 
 Heald v. Carey (1852), 11 0. B. 977; 21 L. J. 0. P. 97; 87 
 
 E. E. 833 - 158 
 
 Heawood v. Bone (1884), 13 Q. B. D. 179 ; 51 L. T. 125 92 
 
 Heilbut V. Buckleton, (1913) A. 0. 30 ; 82 L. J. K. B. 245 ; 
 
 107 L. T. 769 22 
 
 Helby v. Matthews, (1895) A. C. 471 ; 64 L. J. Q. B. 466; 72 
 
 L. T. 841 - - 7, 9, 12, 43, 45, 75 
 
 HeUaweU v. Eastwood (1851), 6 Ex. 295 ; 20 L. J. Ex. 154 ; 
 
 86 E. E. 296 - 117 
 
 Henderson v. Williams, (1895) 1 Q. B. 521 ; 64 L. J. Q. B. 
 
 308 ; 72 L. T. 98 - - 143, 161 
 
 Hewison v. Eicketts (1894), 63 L. J. Q. B. 711 ; 71 L. T. 191 34, 
 
 72, 73 
 Higgins V. Sargent (1823), 2 B. & 0. 348; 2 L. J. K. B. 33 ; 
 
 26 E. E. 379 39 
 
 HHl, Ee (1875), 1 Oh.. Div. 503 102 
 
 Hills V. Street (1828), 5 Bing. 37 ; 6 L. J. C. P. 215 126 
 
 Hinfimelspring u. The Singer Manufacturing Co. and Home 
 
 (1898), not reported 68, 70, 83 
 
 Hirachand Punamchand v. Temple, (1911) 2 K. B. 330; 80 
 
 L. J. K. B. 1155 ; 105 L. T. 277 - - - 40 
 
 Hiort V. Bott (1874), 9 Ex. 86 ; 43 L. J. Ex. 81 ; 30 L. T. 25 - 158 
 
 V. L. & N. W. Railway Co. (1879), 4 Ex. Div. 188; 48 
 
 L. J. Ex. 545 ; 40 L. T. 674 147, 161, 162 
 
 Hirst V. West Eiding Union Banking Co., (1901) 2 K. B. 560; 
 
 70 L. J. K B. 828 ; 85 L. T. 3 - 20, 30 
 
 Hitchman v. Walton (1839), 4 M. & W. 414 ; 8 L. J. Ex. 31 ; 
 
 51 E. E. 656 - - - - 130 
 
 Hohson V. Gorringe, (1897) 1 Oh. 182; 66 L. J. Oh. 114 ; 75 
 
 L. T. 610 - - 137, 138, 141 
 
 Hodder v. Williams, (1895) 2 Q. B. 663 ; 65 L. J. Q. B. 70; 
 
 73 L. T. 394 67 
 
 Hodges V. Lawrence (1854), 18 J. P. 347 121 
 
 Hogarth v. Jennings, (1892) 1 Q. B. 907 ; 61 L. J. Q. B. 601 ; 
 
 66 L. T. 821 - 119, 165 
 
 Hollingshead v. Egan, (1913) A. 0. 564; 83 L. J. P. 0. 74; 
 
 29 T. L. E. 640 100 
 
 HoUins V. Powler (1875), 7 H. L. 757 ; 44 L. J. Q. B. 169; 33 
 
 L. T. 73 ■ 13, 16, 83, 158, 160 
 
CASES CITED. XXV 
 
 PAGE 
 
 "Holmes c Sixsmith (1852), 7 Ex. 802; 21 L. J. Ex. 312; 86 
 
 E. E. 838 29 
 
 Horn i: Baker (1808), Smith's Lead. Gas. ; 9 E. E. 541 117 
 
 Horsford c. Webster (1835), 1 0. M. & E. 696; 4 L. J. Ex. 
 
 100; 40 E. E. 679 117 
 
 Horwood V. Smith (1788), 2 Term Eep. 750 ; 1 E. E. 613 17 
 
 House Property Co. v. Whiteman, (1913) 2 K. B. 382; 82 
 
 L. J. K. B. 887 ; 109 L. T. 43 - 125 
 
 Hoyle, Ee, (1893) 1 Ch. 84; 62 L. J. Oh. 182; 67 L. T. 
 
 674 - - 26, 27 
 
 Huddersfleld Banking Co. Ltd. v. Lister, (1895) 2 Ch. 273 ; 64 
 
 L. J. Ch. 523 ; 72 L. T. 703 - 136 
 
 Hughes, Ex parte, Ee Thackrah (1888), 5 Mor. 235 101 
 
 Hugill V. Master (1889), 22 Q. B. D. 364; 58 L. J. Q. B. 171 ; 
 
 60 L. T. 774 24 
 
 Hull Eopes Co. v. Adams, (1895) 65 L. J. Q. B. 114 ; 73 L. T. 
 
 446 7, 8, 9 
 
 Humphreys v. Jones (1845), 14 M. & W. 1 ; 14 L. J. Ex. 254; 
 
 69 E. E. 642 34 
 
 Hurst V. Picture Theatres (1913), 30 T. L. E. 98 61 
 
 Hutchins v. Chambers (1758), 1 Buir. 579 ; 2 Ld. Ken. 
 
 204 126, 127 
 
 Hutchinson v. Birch (1812), 4 Taunt. 618 ; 13 E. E. 703 66 
 
 Hutley V. Peacock (1913), 30 T. L. E. 42 34 
 
 Hyman v. Nye (1881), 6 Q. B. D. 685 ; 44 L. T. 919 22 
 
 Hymasf. Ogden, (1905) 1 K. B. 246; 74 L. J. K B. 101; 
 
 91 L. T. 832 150, 151, 153, 154, 157 
 
 I. 
 
 Inglis .-. Eobertson, (1898) A. C. 616 ; 67 L. J. P. 0. 108 ; 79 
 
 L. T. 224 8 
 
 Iredale v. Kendall (1878), 40 L. T. 362 124 
 
 Irwin V. Waterloo Taxi-Oab Co. Ltd., (1912) 3 K. B. 588 ; 81 
 
 L. J. K. B. 998 ; 107 L. T. 288 ; 28 T. L. E. 567 69 
 
 J. 
 
 -Jackson v. Bennan, (1893) 37 S. J. 282 119 
 
 •Janesich v. Attenborough (1910), 102 L. T. 605 ; 26 T. L. E. 
 
 278 - - 8 
 
 -Jarvis v. Hammings, (1912) 1 Oh. 462 ; 81 L. J. Oh. 290 ; 106 
 
 L. T. 419 - 110 
 
XXVI CASES CITED. 
 
 PAGE 
 
 Jarvis v. Jarvis (1893), 63 L. J. Oh. 10; 69 L. T. 412; 
 
 1 Manson, 199 - - . . 80' 
 
 Jay's FumisMng Co. v. Brand (1914), 30 T. L. E. 244 - 94, 96 
 
 Jefferies u. G. W. Eailway Co. (1856), 5 E. & B. 802; 25 
 
 L. J. Q. B. 107 ; 103 E. E. 753 143: 
 
 Jelks V. Hayward, (1905) 2 K. B. 460 ; 74 L. J. K. B. 717 ; 
 
 92 L. T. 692 49, 55, 106, 142, 164 
 
 Jeimings v. Eundall (1799), 8 Term Eep. 335 ; 4 E. E. 680 35 
 
 Jensen, Ex parte, Ee Callow (1886), 4 M. B. E. 1 102: 
 
 Johnson v. Diprose, (1893) 1 Q,. B. 512 ; 62 L. J. Q. B. 291 ; 
 
 68 L. T. 485 168- 
 
 V. Faulkner (1842)^ 2 Q. B. 925 ; 11 L. J. Q. B. 193 91 
 
 V. Upham (1859), 2 E. & E. 250; 28 L. J. a B. 252 ; 
 
 119 E. E. 706 - - 120- 
 
 Johnston v. The Eoyal Mail Steam Packet Co. (1867), 3 C. P. 
 
 38 ; 37 L. J. C. P. 33 ; 17 L. T. 445 - 50- 
 
 Jones, Ex parte, Ee Jones (1881), 18 Ch. D. 109 ; 50 L. J. Ch. 
 
 673 ; 44 L. T. 588 35- 
 
 V. Beirnstein, (1900) 1 Q. B. 100 ; 69 L. J. Gl. B. 1 ; 81 
 
 L. T. 553 123. 
 
 V. Do-wle (1841), 9 M. & W. 19; 11 L. J. Ex. 52; 60 
 
 E. E. 652 144, 145, 158- 
 
 V. Hart (1698), 2 Salk. 441 13, 160- 
 
 V. Jones (1889), 22 Q. B. D. 425 ; 58 L. J. Q. B. 178 ; 
 
 60 L. T. 421 124r 
 
 V. Victoria Graving Dock (1877), 2 Q. B. D. 314; 46 
 
 L. J. Q. B. 219 ; 36 L. T. 144 26- 
 
 Jusan V. Dixon (1813), 1 M. & S. 601 128- 
 
 Kanhaya Lai v. National Bank of India (1913), 29 T. L. E. 
 
 314 - 49, 53 
 
 Keen v. Priest (1859), 4 H. & N. 236; 28 L. J. Ex. 157; 118 
 
 E. E. 406 - 163, 165, 167' 
 
 Keene v. Thomas, (1905) 1 K. B. 136 ; 74 L. J. K. B. 21 ; 92 
 
 L. T. 19 - . 50 
 
 Keith, Prowse & Co. v. National Telephone Co., (1894) 2 Ch. 
 
 147 ; 63 .L. J. Ch. 373; 70 L. T. 276 44 
 
 Kemp V. Baerselman, (1906) 2 K. B. 604 ; 75 L, J. K. B. 873 - 82 
 
 V. Christmas (1898), 79 L. T. 233 - 124 
 
 Kent V. Pittall, (1906) 1 K. B. 60; 75 L. J. K. B. 310; 94 
 
 L. T. 76 92; 
 
CASES CITED. XXVll 
 
 PAGE 
 
 Kerb}' f. Harding (1851), 6 Ex. 234 ; 20 L. J. Ex. 163 ; 86 
 
 B. E. 260 125 
 
 Eing t. Englaud (1864), 4 B. & S. 782 ; 33 L. J. Q. B. 145 ; 
 
 9L. T. 645; 129 E. E. 923 127 
 
 Kirkr. Gregory (1876), 1 Ex. D. 55 ; 45 L. J. Ex. 186; 34 
 
 L. T. 488 167 
 
 Kirkham r. Marter (1819), 2 B. & Aid. 613 ; 21 E. E. 416 32 
 
 Kitto r. Bilbie (1895), 72 L. T. 266; 11 T. L. E. 214; 2 
 
 Manson, 122 7, 9 
 
 Knights V. Wiflcn (1870), 5 Q. B. 660; 40 L. J. Q. B. 51 ; 23 
 
 L. T. 610 la 
 
 Lake v. Smith (1805), 1 B. & P. N. E. 174 121 
 
 Lambourn v. McLellan, (1903) 2 Ch. 268 ; 72 L. J. Oh. 617 ; 
 
 88 L. T. 263 131 
 
 Lancashire Wagon Co. v. Fitzhugh (1861), 6 H. & N. 502 ; 30 
 
 L. J. Ex. 231 ; 3 L. T. 703 ; 123 E. E. 645 10 
 
 Larner v. Lamer, (1905) 2 K. B. 539 ; 74 L. J. K. B. 797 ; 93 
 
 L. T. 537 - 3T 
 
 Lavell V. Eitchings, (1906) 1 K. B. 480 ; 75 L. J. K. B. 287 ; 
 
 94 L. T. 515 114 
 
 Leader v. Homewood (1858), 5 C. B. 546; 27 L. J. C. P. 316 ; 
 
 116 E. E. 760 131 
 
 ■ V. Ehys (1861), 10 0. B. 369; 30 L. J. C. P. 345; 4 
 
 L. T. 330; 128 E. E. 749 - 154 
 
 Leake v. Loveday (1842), 4 M. & G. 972; 12 L. J. C. P. 65 ; 
 
 61 E. E. 707 143 
 
 Lee V. Bayes (1856), 18 C. B. 599 ; 25 L. J. C. P. 249 ; 107 
 
 E. E. 424 53, 79, 83, 160 
 
 — V. Butler, (1893) 2 Q. B. 318 ; 62 L. J. Q. B. 591 ; 69 
 
 L. T. 370 7, 8, 9, 11, 12 
 
 — V. Gansel (1774), 1 Cowp. 1 66 
 Leeds, &c. v. Brpadbent, (1898) 1 Ch. 343; 67 L. J. Oh. 135; 
 
 77 L. T. 665 38 
 
 Legg V. Evans (1840), 6 M. & W. 36 ; 9 L. J. Ex. 102 ; 55 
 
 E. E. 490 52 
 
 Leicester v. Cherryman, (1907) 2 K. B. 101 ; 76 L. J. K. B. 
 
 678 ; 96 L. T. 784 - 20 
 
 Leman v. Yorkshire Eailway Wagon Co. (1881), 50 L. J. Ch. ' 
 
 293 ; 29 W. E. 466 45, 101 
 
XXVin CASES CITED. 
 
 Lompriere v. Lange (1879), 12 Cli. D. 675 ; 41 L. T. 378; 27 
 
 W. E. 879 - 36 
 
 Leroux v. Brown (1852), 12 0. B. 801 ; 22 L. J. C. P. 1 ; 92 
 
 E. E. 889 ^7 
 
 Lesohallas v. Woolf, (1908) 1 Ch. 641 ; 77 L. J. Oh. 345 ; 98 
 
 L. T. 558 131 
 
 LesKe v. Shiell (1913), 29 T. L. E. 554 36 
 
 Levene v. Brougham (1909), 25 T. L. E. 265 36 
 
 Lewin & Co. , Ex parte, Ee Eobertson. See Ek parte Crawcour. 
 
 Lewis r. Clay (1898), 67 L. J. Q. B. 224; 77 L. T. 653; 46 
 
 W. E. 319 10 
 
 V. Commissioners, (1898) 2 Q. B. 290 ; 67 L. J. Q. B. 
 
 694; 78 L. T. 745 .- 28 
 
 V. Davies, (1913) 2 K. B. 37 ; 82 L. J. K. B. 631 ; 108 
 
 L. T. 606; reversed (1914), 30 T. L. E. 301 121 
 
 Lilley v. Doubleday (1881), 7 Q. B. D. 510 ; 51 L. J. Q. B. 310 ; 
 
 44 L. T. 814 48 
 
 Lingard v. Messiter (1823), 1 B. & C. 308; 1 L. J. K. B. 121 58, 99 
 Liver Eurnishing Co. v. Cross (1905), 40 L. J. Newspaper 57 - 56 
 Lloyd Edwards, Ee (1891), 61 L. J. Ch. 22 ; 65 L. T. 453 39 
 
 V. Grace, (1912) A. C. 716 ; 81 L. J. K. B. 1140 ; 107 
 
 L. T. 531 69 
 
 V. Eosbee (1810), 2 Camp. 453 ; 11 E. E. 764 121 
 
 Load V. Green (1846), 15 M. & W. 216; 15 L. J. Ex. 113 ; 71 
 
 E. E. 627 - - 98 
 
 Loesohman v. Machin (1818), 2 Stark. 311 ; 20 E. E. 687 - 6, 15, 146 
 Logan V. Houlditch (1793), 1 Esp. 22 ; 14 Mews' Dig. 279 77 
 
 London, Birmingham, &c. Bank, Li re (1865), 34 Beav. 332; 
 
 34 L. J. Ch. 418 ; 12 L. T. 46 41, 42 
 
 & N. W. Eailway Co. v. Buckmaster (1874), 10 Q. B. 
 
 70; 44 L.J. M. C. 29; 31 L. T. 835 128 
 
 & N. W. Eailway Co. v. Bvershed (1879), 3 App. Gas. 
 
 1029 ; 48 L. J. Q. B. 22 ; 39 L. T. 306 47 
 
 & Universal Bank, Ex parte, Ee Ginger, (1897) 
 
 2 Q. B. 461 ; 66 L. J. Q. B. 777; 76 L. T. 808 100 
 
 0. & D. Eailway Co. v. S. E. Eailway Co., (1892) 1 Ch. 
 
 120 ; 61 L. J. Ch. 294 ; 65 L. T. 722 - 39, 161, 164 
 
 County Coiinoil Arbitration, Ee (1897), 13 T. L. E. 
 
 254- - - 31 
 
 Furnishing Co. v. Solomon (1912), 106 L. T. 371 ; 
 
 28 T. L. E. 265 100 
 
 Long u. Clarke, (1894) 1 Q. B. 119; 63 L. J. Q. B. 108; 69 
 
 L. T. 654 66, 67, 68 
 
CASES CITED. XXIX 
 
 PAOE 
 
 Longman v. Oaliui (1790), Abbot's Shipping, 465 48. 
 
 Lord V. Pi-ice (1874), 9 Ex. 54 ; 43 L. J. Ex. 49 ; 30 L. T. 271 
 
 142, 164 
 Loveiing, Ex parte, Ee Jones (1874), 9 Oh. 621 ; 43 L. J. Bk. 
 
 116; SOL. T. 622- - _ 104 
 
 Lowe V. Dorling, (1905) 2 K. B. 501 ; 74 L. J. K B. 794 ; 93 
 
 L. T. 398 - 30, 109, 111, 164 
 
 r. Griffith (1835), 1 Sc. 458 ; 4 L. J. C. P. 94 33. 
 
 Lucas c. Dixon (1889), 22 Q. B. D. 537 ; 58 L. J. Q. B. 161 ; 
 
 37 W. E. 370 27 
 
 Lumley v. Simmons (1887), 34 Ch. D. 698 ; 56 L. J. Ch. 329 ; 
 
 56 L. T. 134 - - 63 
 
 Lumsden u. Bui-nett, (1898) 2 Q. B. 177 ; 67 L. J. Q. B. 661 ; 
 
 78 L. T. 778 - - 125 
 
 Luttges V. Sherwood (1895), 11 T. L. E. 233 40 
 
 Lyde v. Barnard (1836), 1 M. & W. 101 ; 5 L. J. Ex. 117; 46 
 
 E. E. 269 - - 21 
 
 V. Eussell (1830), 1 B. & Ad. 394 ; 9 L. J. K. B. 26 ; 25 
 
 E. E. 327 - - - - 131 
 
 Lyon v. London City and Midland Bank, Ltd., (1903) 2 K. B. 
 
 135 ; 72 L. J. K. B. 465 ; 88 L. T. 392 - 136 
 
 V. Eeed (1844), 13 M. & W. 285 ; 13 L. J. Ex. 377 - 9T 
 
 V. Tomkies (1836), 1 M. & W. 603 ; 5 L. J. Ex. 260; 46 
 
 E. E. 412 126. 
 
 M. 
 
 Maas V. Pepper. See Mellor's Trustee v. Maas. 
 
 M'Cartan v. Belfast Harbour Commissionei'S, (1911) 2 Ir. B. 
 
 143 ; Mews' Dig. (1911), Col. 268 ■ 70 
 
 M'Combie v. Davies (1805), 6 Bast, 538 ; 8 E. E. 534 - 13, 162 
 
 McEntire v. Crossley. See Orossley, Ex parte, Ee Peel 74 
 
 Macgregor v. Clamp, (1914) 1 K. B. 288 ; 30 T. L. E. 128 ; 58 
 
 S. J. 139 128, 166, 167 
 
 M'Leod V. M'Ghee (1841), 2 M. & G. 326; 2 Scott, N. E. 604 ; 
 
 58 E. E. 434 - - 163 
 
 MadeU v. Thomas, (1891) 1 Q. B. 230; 60 L. J. Q. B. 227; 64 
 
 L. T. 9 5, 34 
 
 Maidstone Palace of Varieties, In re, (1909) 2 Oh. 283; 78 
 
 L. J. Ch. 739; lOlL. T. 458 - - - 139 
 
 Malcolm, Brunker & Co. v. Waterhouse (1908), 24 T. Ti. E. 
 
 854 . - - - - 6» 
 
XXX CASES CITED. 
 
 PAGE 
 
 .Manchester, &o. Eailway Co. u. North. Central Wagon Co. 
 
 >See North Central Wagon Co. v. Manchester, &c. Eailway 
 
 Co. 
 Mander ^. Eidgway, (1898) 1 Q. B. 501 ; 6*7 L. J. Q. B. 335; 
 
 78 L. T. 118 30 
 
 Mansfield Union r. Wright (1882), 9 Q. B. D. 683 ; 46 J. P. 
 
 200 33 
 
 Marner v. Banks (1867), 17 L. T. 147 ; 16 W. E. 62 10 
 
 Maipessa, The, (1906) P. 95; 75 L. J. P. 18; 94 L. T. 
 
 428 146, 161 
 
 Martindale v. Smith (1841), 1 Q. B. 389 ; 10 L. J. Q. B. 155 ; 
 
 55 E. E. 285 52 
 
 Mason, Ex parte, Ee Isaacson, (1895) 1 Q. B. 333; 64 
 
 L. J. Q. B. 191 ; 71 L. T. 812 - 80 
 
 V. Williams (1873), 28 L. T. 232 20 
 
 Masters v. Farris (1845), 1 C. B. 715 165 
 
 V. Fraser (1901), 85 L. T. 611 ; 66 J. P. 100 - 114 
 
 Matthews v. Gray, (1909) 2 K. B. 89 ; 78 L. J. K. B. 645 
 
 100 L. T. 907 
 — -v. SmaUwood, (1910) 1 Ch. 777; 79 L. J. Ch. 322 
 
 23 
 44 
 
 102 L. T. 228 
 Maund v. Monmouthshire Canal Co. (1842), 4 M. & Gr. 452 
 
 11 L. J. C. P. 317- - - 32, 168 
 
 Mavor v. Pyne (1825), 3 Bing. 285 ; 4 L. J. 0. P. 36 ; 28 E. E. 
 
 625 - - 27 
 
 Mearsv. Callender, (1901) 2 Ch. 388; 70 L. .T. Ch. 621; 84 
 
 L. T. 618 - - 131 
 V. L. & S. W. Eailway Co. (1862), 11 0. B. 850; 31 
 
 L. J. C. P. 220 ; 6 L. T. 190; 132 E. E. 778 - 49, 159 
 
 Mediana, The, (1899) P. 127 ; 68 L. J. P. 26 ; SO L. T. 
 
 173 146, 161 
 
 Mehta V. Sutton (1913), 109 L. T. 529 ; 30 T. L. E. 17 ; 58 
 
 S. J. 29 - - . 8, 9 
 
 Mellor's Trustee v. Maas, (1905) A. C. 102 ; 74 L. J. K. B. 
 
 452; 92 L. T. 371 ; 12 Manson, 107 - - 2 
 
 Mersey Docks and Harbour Board, Ex parte, (1899) 1 Q. B. 
 
 546 ; 68 L. J. Q. B. 540 , 80 L. T. 143 - 53 
 
 Metropolitan Counties Assurance Society v. Brown (1859), 26 
 
 Beav. 454; 28 L. J. Ch. 581 ; 122 B. E, 190 ' 130 
 
 Midgley, In re (1913), 103 L. T. 45 ; 57 S. J. 247 105 
 
 Midland Counties Insurance Co. u. Smith (18S1), C Q. B. D. 
 , . 561 ; 50 i. J. a B. 329; 45 L. T. 411 79 
 
CASES CITED. XXXl 
 
 "Midland Eailway Co. f. Martin, (1893) 2 Q. B. 172 ; 62 L. J. 
 
 Q. B. 517 ; 69 L. T. 353 - 20 
 
 Miles V. Furber (1873), 8 Q. B. 77 ; 42 L. J. Q. B. 41 ; 27 
 
 L. T. 756 116, 117 
 
 Miller i: Dell, (1891) 1 Q. B. 468; 60 L. J. Q. B. 404; 63 
 
 L. T. 693 13, 71, 148, 162 
 
 i-. Tebb (1893), 9 T. L. E. 515 66 
 
 MUls V. Graham (1804), 1 B. & P. N. E. 140; 8 E. E. 767 35 
 
 Milsom V. Stafiord (1899), 80 L. T. 590 - 25 
 
 Montague, Ex parte, Ee O'Brien (1876), 1 Ch. D. 556; 34 
 
 L. T. 197 - - 100 
 
 Moore, Ee, (1906) 1 Ch. 789 ; 75 L. J. Oh. 342 ; 95 L. T. 521 - 95 
 
 ■ u. Austin (1910), unreported 112, 122, 149, 155 
 
 V. Drinkwater (1858), 1 P. & F. 134; 115 E. E. 882 - 165 
 
 , Nettlefold & Oo. v. Singer Manufacturing Co., (1904) 
 
 1 K. B. 820; 73 L. J. K. B. 457 ; 90 L. T. 469 127 
 
 Moran v. Pitt (1873), 42 L. J. Q. B. 47; 28 L. T. 554; 21 
 
 W. E. 55 - - 17 
 
 Morrison, Ee, (1914) 1 Ch. 50; 108 L. T. 675; 30T.L. E. 59- 139 
 Morritt, Ee, Ex parte Official Eeceiver (1886), 18 Q. B. D. 
 
 222; 56 L. J. Q. B. 139 ; 56 L. T. 42 - 63 
 
 Morton v. Palmer (1881), 9 Q. B. D. 89 ; 51 L. J. Q. B. 7 ; 
 
 45 L. T. 426 - 92 
 
 Mowats V. Hudson, (1911) 105 L. T. 400 130 
 
 Mulgrave v. Ogden (1591), Oro. Eliz. 219 47 
 
 MuUer v. Moss (1813), 1 M. & S. 335 ; 14 E. E. 459 - 98 
 
 MuUiner v. Florence (1878), 3 Q. B. D. 484 ; 47 L. J. Q. B. 700 ; 
 
 38 L. T. 167 51, 52, 161 
 
 Murphy, Ex parte, Ee M'Parland, (1893) 31 L. E. Ir. 465 102 
 
 N. 
 
 Nargett v. Nias (1859), 1 El. & El. 439 ; 28 L. J. Q. B. 143 113 
 Nash V. Inman, (1908) 2 K. B. 1 ; 77 L. J. K. B. 626 ; 98 L. T. 
 
 658 - ... 35 
 
 ■ V. Lucas (1867), 8 B. & S. 531 ; 2 Q. B. 590; 16 L. T. 
 
 610 - - - 63, 65, 66, 67 
 
 Nassau, Ex parte, Ee Horn (1886), 2 T. L. E. 339; 3 Morrell, 
 
 51 - - - 101 
 
 Nathan v. Ogdens, (1905) 94 L. T. 126 ; 22 T. L. E. 57 , ,- 40 
 National Guardian Assurance Co., Ex parte, Ee Fianois (1878), 
 
 10 Ch. D. 408 ; 40 L. T. 237 ; 27 W. E. 498 - 100 
 
XXXll CASES CITED. 
 
 PAOK 
 
 National Telephone Co. v. Cotamissioners, (1900) A. C. 1 ; 69 
 
 L. J. Q. B. 43 ; 81 L. T. 546 2a 
 V. Griflen, (1906) 2 Ir. E. 115; 14 
 
 Mews' Dig. 2048 - 38 
 
 Ness V. Stephenson (1882), 9 Q. B. D. 245 ; 47 J. P. 134 92.-. 
 
 Newlove v. Shrewsbury (1888), 21 Q. B. D. 41 ; 57 L. J. Q. B. 
 
 476 ; 36 W. E. 835 82 
 
 Newman v. Anderton (1806), 2 B. & P. N. E. 224 lia 
 
 Newton v. Harland (1840), 1 M. & G. 644 ; 56 E. E. 488 - 66, 69- 
 
 NichoUs V. Bastard (1835), 2 C. M. & E. 659 ; 5 L. J. Ex. 7 ; 
 
 41 E. E. 814 - - 164 
 
 Nichols, Ex parte, Ee Jones (1883), 22 Oh. D. 782 ; 52 L. J. 
 
 Ch. 635; 48 L. T. 492 - - 81 
 
 Nicholson v. Harper, (1895) 2 Oh. 415; 64 L. J. Ch. 672; 73 
 
 L. T. 19 9. 
 
 Nisbet & Potts, In re, (1906) 1 Ch. 386 ; 75 L. J. Ch. 238 ; 94 
 
 L. T. 297 141 
 
 Norman?^. Eicketts(1886), 3T. L. E. 182 - 40 
 
 North V. Jackson (1859), 2 F. & F. 198 IT 
 
 North Central Wagon Co. v. Manchester, &c. Eailway Co. 
 
 (1886), 13 App. Cas. 554 ; 58 L. J. Ch. 219 ; 59 L. T. 
 
 730 ... 4, 101 
 
 Northey v. Gidney, (1894) 1 Q. B. 99 ; 70 L. T. 82 37, 134 
 
 North- Western Salt Co. v. Electrolytic Alkali Co., (1913) 3 
 
 K. B. 422 ; 107 L. T. 439 - - - - 21 
 
 Nott V. Bound (1866), 1 Q. B. 405 ; 14 L. T. 330 125- 
 
 Nottingham Bank, Ex parte, Ee Jenkinson (1885), 15 Q. B. D. 
 
 441 ; 54 L. J. Q. B. 601 ; 2 Mor. 131 - 5a 
 
 Nyburg v. Handelaar, (1892) 2 Q. B. 202 ; 61 L. J. Q. B. 709 ; 
 
 67 L. T. 361 . 49, 142, 145 
 
 O. 
 
 Gates V. Hudson (1831), 6 Ex. 346 ; 20 L. J. Ex. 284 ; 86 
 
 E. E. 326 - - - 49, 53 
 
 Oldershaw v. King (1857), 2 H. & N. 519 ; 27 L. J. Ex. 120 ; 
 
 115 E. E. 667 - - - - - 32 
 
 Oliver v. Bartlett (1819), 1 B. & B. 269 ; 3 Moore, 392 - 98 
 
 OUivanti;. Bayley (1843), 5 Q. B. 288; 13 L. J. Q,. B. 34; 64 
 
 E. E. 501 - - - - - - . 22 
 
 Oppenheimer v. Attenborough, (1908) 1 K. B. 221 ; 77 L. J. 
 
 K. B. 209 ; 98 L. T. 94 . .. g 
 
CASES CITED. XXXlli 
 
 PAOE 
 
 Oppenheiiner c. Frazer, (1907) 2 K. B. 50; 76 L. J. K. B. 
 
 806 ; 97 L. T. 3 - - - » 
 
 Orchis, The (1889), 15 P. D. 38 ; 59 L. J. P. 31 ; 62 L. T. 407 - oO- 
 
 Page c. Vallis (1903), 19 T. L. E. 393 - 92 
 
 Palmer v. Bramley, (1895) 2 Q. B. 405 ; 65 L. J. Q. B. 42 ; 73 
 
 L. T. 329 - 41 
 
 Papillon V. Brunton (1860), 5 H. & N. 518 ; 29 L. J. Ex. 265 ; 
 
 120E. E. 704 110' 
 
 Parker v. Bristol and Exeter Eailway Co. (1851), 6 Ex. 702; 
 
 20 L. J. Ex. 442 ; 86 E. E. 441 - 49, 53 
 
 Parrett Navigation Co. ■;;. Stower (1840), 6 M. & W. 564; 9 
 
 L. J. Ex. 180 ; 55 E. E. 729 - 124 
 
 Parr's BankLng Co. v. Yates, (1898) 2 Q. B. 460 ; 67 L. J. Q. B. 
 
 851 ; 79 L. T. 321 - - 34 
 
 Parsons, Ex parte (1886), 16 Q. B. D. 532; 55 L. J. Q. B. 
 
 137; 53 L. T. 897 - - - 3 
 
 V. Barclay (1910), 103 L. T. 196; 26 T. L. E. 628 21 
 
 Patrick v. Colerick (1838), 3 M. & W. 483; 7 L. J. Ex. 135; 
 
 49 E. E. 670 64 
 
 Pawley v. Holly (1773), 2 W. Bl. 853 - 152 
 
 Payne v. Wilson, (1895) 1 Q. B. 653 ; 64 L. J. G. B. 328 ; 72 
 L. T. 110 ; on appeal, (1895) 2 Q. B. 537 ; 65 L. J. Q. B. 
 150 ; 73 L. T. 12 - - 9, 10, 18, 63, 64, 79 
 
 Peacock v. Purssell (1863), 14 C. B. 728; 32 L. J. C. P. 266; 
 
 8 L. T. 636 ; 135 E. E. 875 - 42, 43 
 
 Pearce v. Brooks (1866), 1 Ex. 213; 35 L. J. Ex. 134; 14 
 
 L. T. 288 - 21 
 
 Peer v. Humphrey (1835), 2 Ad. & E. 495 ; 4 L. J. K B. 100 ; 
 
 41 E. E. 471 - 16 
 
 Pennington v. Crossley (1897), 77 L. T. 43 ; 13 T. L. E. 513 - 40 
 Penton v. Bamett, (1898) 1 Q. B. 276; 67 L. J. Q. B. 11 ; 77 
 
 L. T. 645 - - 44 
 
 Peppercorn v. Hofman (1842), 9 M. & W. 618; 12 L. J. Ex. 
 
 270 - - 127 
 
 Perkins v. Stead (1907), 23 T. L. E. 433 - - 70 
 
 Perring & Co. v. Emerson, (1906) 1 K. B. 1 ; 75 L. J. K. B. 
 
 12 ; 93 L. T. 748 - - 110,119,121,124,165 
 
 R. C 
 
XXXIV CASES CITED. 
 
 PAGE 
 
 Perry v. National Provincial Bank, (1910) 1 Ch. 464 ; 79 L. J. 
 
 Oh. 509 ; 102 L. T. 300 - - 33 
 
 Peruvian Guano Co. v. Dreyfus, (1892) A. C. 166; 61 L. J. 
 
 Ch. 748; 66 L. T. 536 147 
 
 Pessers v. Catt (1913), 29 T. L. E. 381 - 21, 22 
 
 Petre v. Perrers (1891), 61 L. J. Ch. 426 ; 66 L. T. 568 151 
 
 PhiUips, Ex parte, Ee Eelick (1876), 4 Oh. D. 496; 46 L. J. 
 
 Bank. 30 ; 35 L. T. 914 100 
 
 V. Hansen (1877), 3 0. P. D. 20 ; 47 L. J. 0. P. 273 ; 
 
 37 L. T. 432 91 
 
 Philpott V. Kelley (1835), 3 A. & E. 106; 4 N. & M. 611 47 
 
 Phipps V. The New Claridge's Hotel, Ltd. (1905), 22 T. L. E. 
 
 49 - - 48 
 
 Piokford v. Corsi, (1901) 2 K. B. 212; 70 L. J. K. B. 710; 
 
 84 L. T. 627 - - 14 
 
 Plant V. Collins, (1913) 1 K. B. 242 ; 82 L. J. K. B. 467 ; 108 
 
 L. T. 177 55 
 
 Plas-y-Coed Collieries Co. v. Partridge, (1912) 2 K. B. 345; 
 
 81 L. J. K. B. 723 ; 106 L. T. 426 - - 127 
 
 Plevin V. Henshall (1833), 10 Bing. 24 ; 2 L. J. 0. P. 253 163 
 
 PoUitt V. Forest (1848), 11 Q. B. 949 ; 17 L. J. Q. B. 291 120 
 
 Pool V. Lewin, Crawcour & Co. (1884), 1 T. L. E. 165 124 
 
 Poppleton, Ex parte, Ee Look (1891), 8 Mor. 51 101 
 
 Powell, Ex parte, Ee Matthews (1875), 1 Oh. D. 501 ; 45 L. J. 
 
 Bank. 100 ; 34 L. T. 2.(4 100, 101, 103, 104 
 
 V. Denley (1913), 135 L. T. Jour. 296 31 
 
 Prested Miners, &c. v. Garner, (1911) 1 K. B. 425; 80 L. J. 
 
 K. B. 819 ; 103 L. T. 750 - 24, 26 
 
 Price V. Kirkham (1864), 3 H. & C. 437 ; 34 L. J. Ex. 35 ; 11 
 
 L. T. 314 ; 140 E. E. 542 34 
 
 V. Thomas (1831), 2 B. & Ad. 218 ; 36 E. E. 550 28 
 
 Priestley v. Pratt (1867), 2 Ex. 101; 36 L. J. Ex. 89; 16 
 
 L. T. 64 - - - - - - 102 
 
 Provincial Billposting Co. v. Low Moor Iron Co., (1909) 
 
 2 K. B. 344 ; 78 L. J. E. B. 702 ; 100 L. T. 726 - 117, 118 
 Prudential Mortgage Co. v. Marylebone Borough Council 
 
 (1910), 8 L. G. E. 901 - - 4, 127 
 
 Pugh V. Arton (1869), 8 Eq. 626 ; 38 L. J. Ch. 619 ; 20 L. T. 
 
 865- - - - - 131 
 
 V. Griffith (1838), 7 A. & E. 827 ; 7 L. J. Q. B. 169 ; 
 
 45 E. E. 833 62 
 
CASES CITED. XXXV 
 
 E. 
 
 PAGE 
 
 E. V. Batty (1912), 76 J. P. 388; 28 T. L. E. 486 10 
 
 — V. Bennett (1815), E. & E. 289 - 68 
 
 — V. Bridport County Court Judge, (1905) 2 K. B. 108 ; 74 
 
 L. J. K. B. 464 ; 92 L. T. 571 - 125 
 
 — V. Cotton (1751), 2 Yes. Sr. 288 ; Parker, 112 124 
 
 — V. Daly, Ex parte Newson (1911), 104 L. T. 892; 75 J. P. 
 
 333 ; 22 Cox, C. C. 461 125 
 
 — i'. Elliott, (1908) 2 K B. 452 ; 77 L. J. K. B. 812 ; 99 L. T. 
 
 200; 21 Cox, C. C. 666 18 
 
 — •;;. George (1900), 65 J. P. 729 18 
 
 — V. Jotnson (1911), 27 T. L. E. 489 ; 75 J. P. 464 10 
 
 — V. Lewis (1827), 2 C. & P. 628 68 
 
 — V. McDonald (1885), 15 Q. B. D. 323; 52 L. T. 583 35, 36, 63 
 
 — «. Murray, (1906) 2 K. B. 385; 75 L. J. E. B. 593; 95 
 
 L. T. 295 - - 99 
 
 — V. Eichmond (1873), 12 Cox, 0. C. 495 10, 64 
 
 — V. Smitt (1827), 1 Mood. C. C. 178 - 68 
 
 — V. Smyth (1832), 5 C. & P. 201 ; 1 Moo. & E. 156 - 66 
 
 — V. Spriggs (1834), 1 M. & Eob. 357 68 
 
 — V. Wynn (1887), 16 Cox, C. C. 231 10, 14 
 Eadley v. London County CouncU, (1913), 109 L. T. 162; 29 
 
 T. L. E. 680; llL. G. E. 1035 - 69 
 
 Eamsay V. Margrett, (1894) 2 Q. B. 18; 63 L. J. Q. B. 513; 
 
 70L. T. 788 - 99 
 
 EandaU v. Newson (1877), 2 Q. B. D. 102 ; 46 L. J. Q. B. 259 ; 
 
 36 L. T. 164 - .... 22 
 
 Eanson v. Piatt, (1911) 2 K. B. 291 ; 80 L. J. K. B. 1138; 104 
 
 L. T. 881 - 20, 53 
 
 Eatcliff V. Davies (1611), Cro. Jac. 244 ; Yelv. 178 62 
 
 Eatcliffe v. Evans, (1892) 2 Q. B. 524 ; 61 L. J. Q. B. 535 ; 66 
 
 L. T. 794 - ... 147, 148 
 
 Eawlings, Ex parte, Ee Davis (1888), 22 Q. B. D. 193; 60 
 
 L. T. 157; 6T. L. E. 119 - 63,80,81 
 
 Eaynor v. Chnds (1862), 2 F. & P. 775; 1 Mews' Dig. 956 46 
 
 Beading v. Chew (1898), 78 L. T. 681 ... 129 
 
 Eedhead v. Midlaud Eailway (1867), 4 Q. B. 379 : 38 L. J. 
 
 Q. B. 169; 2()L. T. 628 - 22 
 
 Eeeve v. Palmer (1858), 5 C. B. 84; 28 L. J. C. P. 168; 116 
 
 E. E. 573 - - 48, 145, 158 
 
 Eegent, &c. Stores, Ee (1878), 8 Oh. D. 75 ; 38 L. T. 493 119 
 
 Eeichardt v. Shard (1913), 30 T. L. E. 81 - - 70 
 
 c2 
 
XXXVl CASES CITED. 
 
 PAGE 
 
 Eepublic of Bolivia, Ee (1913), 30 T. L. E. 78 ; 58 S. J. 173 - 115 
 Eeynolds v. Ashby, (1904) A. C. 466; 73 L. J. K. B. 946; 91 
 
 L. T. 607 137 
 
 Eiodes v. Moules, (1895) 1 Ch. 236 ; 64 L. J. Oh. 122 ; 71 L. T. 
 
 599 161 
 
 Ehymney Ey. Co. v. Ehymney Iron Co. (1890), 25 Q. B. D. 
 
 146 ; 59 L. J. Q. B. 414 ; 63 L. T. 407 39 
 
 Eice V. Eeed, (1900) 1 Q. B. 54 ; 69 L. J. Q. B. 33 ; 81 L. T. 
 
 410 - 56 
 
 Eich V. WooUey (1831), 7 Bing. 651 ; 9 L. J. 0. P. 219 ; 33 , 
 
 E. E. 596 123 
 
 Eichards v. Jenkins (1887), 18 Q. B. D. 451 ; 56 L. J. Q. B. 293 ; 
 
 56 L. T. 591 - 143 
 
 Richardson v. N. E. Eailway Co. (1872), 7 C. P. 75 ; 41 L. J. 
 
 0. P. 60; 26L. T. 131 - 47 
 
 Eicketts v. Tilling (1913), 30 T. L. E. 132 71 
 
 Eoberts v. Gray, (1913) 1 K. B. 520; 82 L. J. K. B. 362 ; 108 
 
 L. T. 232 34 
 
 Eoberts v. Wyatt (1810), 2 Taunt. 268 ; 11 E. E. 566 - 46 
 
 Eobertson v. Amazon Tug Co. (1881), 7 Q. B. D. 598; 51 
 
 L. J. Q. B. 68 ; 46 L. T. 146 22, 48 
 
 Eobinsi;. Gray, (1895) 2 Q. B. 501; 65 L. J. Q. B. 44; 73 
 
 L. T. 252 - 51 
 
 Eobinson v. Walter (1616), 3 Bulstr. 269 ; 1 EoUe, 449 116 
 
 Eobinson's Settlement, In re, (1912) 1 Cb. 717 ; 81 L. J. Ch. 
 
 393 ; 106 L. T. 443 - 21 
 
 Eobson V. Biggar, (1907) 1 K. B. 690 ; 76 L. J. K. B. 248 ; 96 
 
 L. T. 271 - 125 
 
 Eodgers v. Parker (1856), 18 0. B. 112; 25 L. J. 0. P. 220; 
 
 107 E. E. 230 166 
 
 Sogers V. Lambert, (1891) 1 Q. B. 318 ; 60 L. J. Q. B. 187 ; 
 
 64 L. T. 406 53, 143 
 
 — V. Martin, (1911) 1 K. B. 19; 80 L. J. K. B. 208; 103 
 
 L. T. 527 - - - 92, 93, 99, 105, 165 
 
 Eollason, In re (1887), 34 Ch. D. 495 ; 56 L. J. Ch. 768 ; 56 
 
 L. T. 303 ... 57 
 
 EoUs V. Miller (1884), 27 Oh. D. 71; 53 L. J. Ch. 682; 50 
 
 L. T. 597 - 58 
 
 Eoope V. D'Avigdor (1883), 10 Q. B. D. 412 ; 48 L. T. 761 ; 47 
 
 J. P. 248 - - - 79 
 
 Eose, Ex parte, Ee Keller (1913), .58 S. J. 155 98 
 
 V. Watson, (1894) 2 Q. B. 90; 63 L. J. M. 0. 108; 70 
 
 L. T. 906 91 
 
CASES CITED. XXXVll 
 
 I'AQE 
 
 Eoss' V. Ed-wards (1895), 73 L. T. 100 48, 143 
 
 Eowe V. Crossley (1912), 108 L. T. 11 ; 51 S. J. 144 23 
 
 Eoyal Exchange Shipping Co. v. Dixon (1886), 12 App. Gas. 
 
 11 ; 56 L. J. Q. B. 266 47 
 
 Euffey r. Hendei'son (1851), 17 Q,. B. 574 ; 21 L. J. Q. B. 49 
 
 131, 132 
 Etishforth v. HadEeld (1805), 7 East, 224 ; 8 E. E. 520 50 
 
 Eushworth v. Taylor (1842), 3 Q. B. 699; 12 L. J. Q. B. 80 ; 
 
 61 E. E. 358 159 
 
 Eussell V. Eider (1834), 6 C. & P. 416 - 125 
 
 Eyan v. Shilcook (1851), 7 Ex. 72 ; 21 L. J. Ex. 55 ; 86 E. E. 
 
 572 66 
 
 Eylands, &c. r. Phoenix Co., (1911) 2 Ir. E. 532; Mews' (1911) 
 
 Dig. 319 78 
 
 S. 
 
 Sacker o. Chidley (1865), 11 Jur. 654 ; 13 W. E. 690 58 
 
 Saffery v. Elgood (1834), 1 Ad. & EI. 191 ; 3 L. J. K. B. 151 ; 
 
 40 E. E. 280 91 
 
 Salaman, Ex parte, In re Magnus, (1910) 2 K. B. 1049 ; 80 
 
 L. J. K. B. 71 ; 103 L. T. 406 ; 17 Hanson, 282 99 
 
 Bamson v. Aitchison, (1912) A. C. 844 ; 82 L. J. P. C. 1 ; 107 
 
 L. T. 106 ; 28 T. L. E. 559 70 
 
 Sanders v. Davis (1885), 15 Q. B. D. 218 ; 54 L. J. Q. B. 576 - 132 
 Sanderson v. Collins, (1904) 1 K. B. 628 ; 73 L. J. K. B. 358 ; 
 
 90 L. T. 243 48 
 
 Sandlord - . Alcook (1842), 10 M. & W. 689 ; 12 L. J. Ex. 40 - 152 
 Sandon v. Jervis (1858), 27 L. J. Q. B. 279 ; 4 Jur. 737 ; 108 
 
 E. E. 953 68 
 
 Bayer r. Wagstafl (1844), 5 Beav. 415 ; 14 L. J. Ch. 161 ; 59 
 
 E. E. 540 41, 42, 43 
 
 •Scaife v. Tarrant (1875), 10 Ex. 358; 44 L. J. Ex. 36; 32 
 
 L. T. 563 47, 51 
 
 •Soattergood v. Sylvester (1850), 15 Q. B. 506 ; 19 L. J. Q. B. 
 
 447; 81 E. E. 945- 20 
 
 School Board for London v. Peters (1902), 18 T. L. E. 509 77 
 
 Schroder v. Ward (1863), 13 C. B, 410 ; 32 L. J. C. P. 150 ; 7 
 
 L. T. 825; 134 E. E. 578 48 
 
 Scott V. Denton, (1907) 1 K. B. 456; 76 L. J. K. B. 330; 95 
 
 L. T. 760 125 
 
 Scriven v. Jescott (1908), 53 S. J. 101 31 
 
XXXVIU CASES CITED. 
 
 PAGE 
 
 Seroka v. Kattenburg (1886), 17 Q,. B. D. 177 ; 55 L. J. Q,. B. 
 
 375 ; 54 L. T. 649 - - 3& 
 
 Serrao v. Noel (1885), 15 Q. B. D. 549 147 
 
 Setoa V. Lafone (1887), 19 Q. B. D. 68 ; 56 L. J. Q. B. 415; 
 
 57 L. T. 547 138 
 
 Shaftesbury v. Eussell (1823), 1 B. & C. 666 ; 1 L. J. K. B. 
 
 202; 2oE. E. 535 128- 
 
 Sharman v. Mason, (1899) 2 Q. B. 679; 69 L. J. Q. B. 3; 81 
 
 L. T. 485 - - 102- 
 
 Sharp V. Fowle (1884), 12 Q. B. D. 385 ; 53 L. J. Q. B. 309; 
 
 50L. T. 758 - 110,165. 
 
 Shaw V. Jersey (1879), 4 0. P. D. 120 - 112 
 
 Sheers v. Brooks (1792), 2 H. Bl. 120 ; 3 E. E. 357 - 59- 
 
 Shenstone v. Freeman, (1910) 2 K. B. 84; 79 L. J. E. B. 982; 
 
 102 L. T. 682 32, 92, 93, 99, 111, 166. 
 . V. Hilton, (1894) 2 Q. B. 452 ; 63 L. J. Q. B. 584 ; 
 
 71 L. T. 339 8, 9, 15 
 
 Simmons v. Lillystone (1853), 8 Ex. 431 ; 22 L. J. Ex. 217 ; 
 
 91 E. E. 569 4T 
 
 Simpson v. Hartopp (1744), Smith's Lead. Oas. ; 2 E. E. 466 - 112, 
 
 113, 116. 
 Singer Co., Ex parte, Ee Blackwell (1878), 12 Ir. L. T. 57 101 
 
 Manufacturing Co. u. Clark (1879), 5 Ex. D. 37; 49 
 
 L. J. Ex. 224 ; 41 L. T. 591 13- 
 Manufacturing Co. v. L. & S. W. Eailway Co., (1894) 
 
 1 Q. B. 833 ; 63 L. J. Q. B. 411 ; 70 L. T. 172 50- 
 
 Six Carpenters' Case, The (1611), Smith's Lead. Cas. 69, 120 
 
 Smith V. Ashforth (1860), 29 L. J. Ex. 259 ; 121 E. E. 889 123 
 
 V. Dauney, (1904) 2 K. B. 186 ; 73 L. J. K. B. 646 ; 90 
 
 L. T. 760 128- 
 
 V. Enright (1894), 63 L. J. Q. B. 220 ; 69 L. T. 724 
 
 165, 168- 
 
 V. Goodwin (1833), 4 B. & Ad. 413 ; 2 L. J. K. B. 192 ; 
 
 38 E. Ei 272 110- 
 
 V. Lambeth (1882), 10 Q. B. D. 327 ; 52 L. J. M. C. 1 
 
 60, 118 
 
 V. Eichmond, (1899) A. C. 448 ; 68 L. J. Q. B. 898 ; 81 
 
 L. T. 269 131 
 
 u. Topping (1833), 5 B. & Ad. 674; 3 L. J. K. B. 47 ; 
 
 39 E. E. 616 - 100' 
 
 V. Wright (1861), 6 H. & N. 821 ; 30 L. J. Ex. 313 ; 
 
 123 E. E. 855 ^ ■ 12T 
 
CASES CITED. XXXIX 
 
 PAGE 
 
 Smith V. Young (1808), 1 Camp. 439 ; 14 Mews' Dig. 279 
 
 78, 158 
 Societe des Hotels v. Hawker (1913), 29 T. L. R. 578 21 
 
 Solomans v. Dawes (1794), 1 Esp. 83 - 160 
 
 Somes V. British Empire Shipping Co. (1860), 8 H. L. Cas. 338 ; 
 
 30 L. J. Q. B. 229 ; 2 L. T. 547 ; 125 E. E. 186 - 52 
 
 Spackman v. Foster (1883), 11 Q. B. D. 99; 52 L. J. Q. B. 
 
 418; 48 L. T. 670- - -13, 148, 162 
 
 Stacey v. HiU, (1901) 1 K. B. 660; 70 L. J. K. B. 435; 84 
 
 L. T. 410 - - - 34 
 
 Stammers v. Margrett (1905), 21 T. L. E. 342- 4 
 
 Stansfeld v. Mayor of Portsmouth (1858), 4 C. B. 120; 27 L. J. 
 
 C. P. 124; 114 E. E. 638 - 131 
 
 Stapylton -•. Clough (1853), 2 E. & B. 933 ; 23 L. J. Q. B. 5 ; 
 
 95 E. E. 909 78 
 
 Starkey i;. Barton, (1909) 1 Oh. 284; 78 L. J. Oh. 129; 100 
 
 L. T. 42 38 
 
 Steel, Ex parte, Ee Eales (1906), 54 W. E. 202 103 
 
 Stephens v. Elwall.(1815), 4 M. & S. 259; 16 E. E. 458 16, 158 
 Stephenson, Ex parte (1847), De Gex, 586 ; 17 L. J. Bank. 5 - 118 
 Stevens v. Evans (1761), 2 Burr.. 1152 127 
 
 Stevenson •!•. Brownell, (1912) 2 Oh. 344; 81 L. J. Oh. 694; 
 
 106 L. T. 994 53 
 
 Stocks V. Wilson, (1913) 2 K. B. 235; 82 L. J. K. B. 598 ; 108 
 
 L. T. 834 - 36 
 
 Stone V. Marsh (1827), 6 B. & 0. 551 ; 5 L. J. K. B. 201 ; 30 
 
 E. E. 420 79 
 
 Stooke, Ex parte, Ee Bamfylde (1871), 20 W. E. 925 101 
 
 Storer v. Hunter (1824), 3 B. & 0. 376; 3 L. J. K. B. 81 98 
 
 Strohmenger v. Attenborough (1894), 11 T. L. E. 7 8 
 
 SulUvan v. Bishop (1826), 2 0. & P. 359; 5 L. J. C. P. 8 121 
 
 Sully, Ex parte, Ee WalUs (1885), 14 Q. B. D. 950; 52 L. T. 
 
 625 ; 2 Mor. 79 - 58 
 
 Sumner v. Bromilow (1865), 34 L. J. Q. B. 130; 11 Jur. N. S. 
 
 481 131 
 
 Sutcliffe V. Great Western EaUway, (1910) 1 K. B. 478; 79 
 
 L. J. K. B. 437; 101 L. T. 930 47 
 
 Sutton V. Temple (1843), 12 M. & W. 60 ; 13 L. J. Ex. 17 ; 67 
 
 E. E. 200 22, 23. 
 
 Swann v. Falmouth (1828), 8 B. & 0. 456 ; 6 L. J. K. B. 374 ; 
 
 34 E. E. 441 125. 
 V. PhilHps (1838), 8 Ad. & E. 457; 3 N. & P. 447 ; 47 
 
 E. E. 626 21 
 
Xl CASES CITED. 
 
 PAGE 
 
 Swansea Mercantile Bank, Ex parte, Ee James (1907), 24 T. L. 
 
 E. 15 ... 102 
 
 Swire v. Leach (1865), 18 C. B. 479; 34 L. J. C. P. 150; 11 
 
 L. T. 680 - 116, 164, 165 
 
 Symonds v. Kurtz (1889), 61 L. T. 559 119 
 
 T. 
 
 Tadman v. Henman, (1893) 2 Q. B. 168 ; 57 J. P. 664 118 
 
 Tancred v. Allgood (1859), 4 H. & N. 438 ; 28 L. J. Ex. 362; 
 
 118 E. E. 538 - 159 
 
 Taplin v. Plorence (1851), 10 C. B. 744; 20 L. J. C. P. 137; 
 
 84 E. E. 773 61 
 
 Tatton V. Wade (1856), 18 C. B. 371 ; 25 L. J. C. P. 240; 
 
 107 E. E. 336 21 
 
 Taylenr v. Wildin (1868), 3 Ex. 303 ; 37 L. J. Ex. 173 ; 18 
 
 L. T. 655 - 33 
 
 Taylor Ee, (1913), 135 L. T. Jour. 239 153 
 
 — - — V. Addyman (1853), 13 C. B. 309 ; 22 L. J. 0. P. 94 ; 
 
 93 E. E. 547 154 
 
 V. Bowers (1876), 1 Q. B. D. 291 ; 46 L. J. Q. B. 39; 
 
 34 L. T. 938 21 
 
 r. CaldweU (1863), 3 B. & S. 826; 32 L. J. Q. B. 164 ; 
 
 8 L. T. 356 ; 129 E. E. 573 48 
 
 ■ u. Chester (1869), 4 Q. B. 309 ; 38 L. J. Q. B. 225 ; 21 
 
 L. T. 359 ■ - 21 
 ■ V. G. E. Eailway Co., (1901) 1 K. B. 774; 70 L. J. 
 
 K. B. 499 ; 84 L. T. 770 27 
 
 Tennant v. Field (1857), 8 E. & B. 336 ; 27 L. J. Q. B. 33 ; 112 
 
 E. E. 586 123 
 
 ThairlwaU v. G. N. Eailway Co., (1910) 2 K. B. 509 ; 79 L. J. 
 
 K. B. 924 ; 103 L. T. 186 - 40 
 
 Thames Ironworks v. Patent Derrick Co. (1860), 1 J. & H. 93 ; 
 
 29 L. J. Ch. 714 ; 2 L. T. 208 ; 128 E. E. 286 52 
 
 Thomas v. Jennings (1896), 66 L. J. Q. B. 5 ; 75 L. T. 274 
 
 131, 132 
 Thompson v. Lacy (1820), 3 B. & Aid. 283 ; 22 E. E. 385 121 
 
 • V. Veale (1896), 74 L. T. 130 - 7 
 
 Thornton v. Adams (1816), 5 M. & S. 38 ; 17 E. E. 257 
 
 121, 122 
 V. France, (1897) 2 Q. B. 143; 66 L. J. Q. B. 705; 
 
 77 L. T. 38 - 95 
 
 Thorogood v. Eobinson (1845), 6 Q. B. 769 ; 14 L. J. Q. B. 87 ; 
 
 66 E. E. 567 - 77, 132, 160 
 
CASES CITED. xll 
 
 PAGE 
 
 ThrelfaU r. Berwick (1875), 10 Q. E. 210 ; 44 L. J. Q. B. 87 ; 
 
 32 L. T. 32 51 
 
 Thurston v. Chai-les (1905), 21 T. L. E. 059 - 147, 161 
 
 Thwaites v. Wilding- (1883), 12 Q. B. D. 4 ; 53 L. J. Q. B. 1 ; 
 
 49 L. T. 396 92, 104, 109, 127 
 
 TiUey v. Bowman, (1910) 1 K. B. 745; 79 L. J. K. B. 547; 
 
 102 L. T. 318 59 
 
 Tolliurst V. Associated Cement, &c., (1903) A. C. 414 ; 72 L. J. 
 
 K. B. 834 ; 89 L. T. 196 - 82 
 
 Tomlinson v. Consolidated Credit, &c. Corporation (1890), 24 
 
 Q. B. D. 135; 62L. T. 162 122 
 
 Toms V. Luckett (1847), 5 C. B. 23 ; 17 L. J, C. P. 27 92 
 
 Trent v. Hunt (1853), 9 Ex. 14 ; 22 L. J. Ex. 318 ; 96 E. E. 
 
 517 122 
 
 Trotter v. Windham (1907), 23 T. L. E. 676 ; 51 Sol. J. 625 - 
 
 151, 153 
 Tucker v. Wright (1826), 3 Bing. 601 ; 4 L. J. C. P. 190 - 147, 162 
 Tugela, The (1913), 30 T. L. E. 101 146, 161 
 
 Turnhull, Ee, (1900) 1 Ch. 180; 69 L. J. Ch. 187 ; 81 L. T. 
 
 439 37, 153, 157 
 
 Turner v. Ford (1846), 15 M. & W. 212 ; 15 L. J. Ex. 210 ; 
 
 71 E. E. 624 124, 125 
 
 V. Sampson (1911), 27 T. L. E. 200 8 
 
 V. Stallibrass, (1898) 1 Q. B. 56 ; 67 L. J. Q. B. 52 ; 
 
 77 L, T. 482 - 153 
 
 Turquand, Ex parte, Ee Parker & Co. (1885), 14 Q. B. D. 
 
 636 ; 54 L. J. Q. B. 242 ; 53 L. T. 579 - 103 
 
 Tutton V. Darke (1860), 5 H. & N. 647 ; 29 L. J. Ex. 271 ; 2 
 
 L. T. 361; 120E. E. 752 119 
 
 U. 
 
 Union Credit Bank v. Mersey Docks Board, (1899) 2 Q. B. 
 
 205 ; 68 L. J. Q. B. 842; 81 L. T. 44 13, 15, 158 
 
 UpfiU V. Wright, (1911) 1 K. B. 506; 80 L. J. K. B. 254; 103 
 
 L. T. 834 21 
 
 Utley V. Mitre Pubhshing Co. (1901), 17 T. L. E. 720 37 
 
 V. 
 
 Yaux, Ex parte (1874), 9 Ch. 602; 43 L. J. Bank. 113; 30 
 
 L. T. 738 - 102 
 
 VerraU v. Eobinson (1835), 2 Or. M. & E. 495 ; 41 E. E. 780 - 158 
 Vogan V. Oulton (1898-9), 79 L. T. 384 ; 81 L. T. 435 - 22 
 
xlii CASES CITED. 
 
 W. 
 
 PAOB 
 
 Waddington v. Neale (1907), 96 L. T. 786 ; 23 T. L. R. 464 
 
 8, 9, 10 
 Walker v. Better, (1911) 1 K. B. 1103; 80 L. J. K. B. 623; 
 
 104 L. T. 821 - - - 125^ 
 
 Waller v. Drakeford (1853), 1 E. &B. 749 ; 22 L. J. a B. 274 ; 
 
 93 E. E. 377 10 
 
 WaUey v. Holt (1876), 35 L. T. 631 35- 
 
 Wallis V. Hands, (1893) 2 Oh. 75 ; 62 L. J. Oh. 586 ; 68 L. T. 
 
 428 - . . _ 97 
 
 V. London & S.W. Eailway (1870), 5 Ex. 62; 39 
 
 L. J. Ex. 57 ; 21 L. T. 675 - 50- 
 
 Walsh V. lonides (1853), 1 El. & Bl. 383 ; 22 L. J. Q. B. 137 ; 
 
 93 E. E. 192 154 
 
 V. Lonsdale (1882), 21 Oh. D. 9; 52 L. J. Oh. 2; 46 
 
 L. T. 858 - 112- 
 
 Ward, Ex parte, Ee Couston (1872), 8 Oh. D. 144 ; 42 L. J. 
 
 Bank. 17 ; 27 L. T. 502 100- 
 
 Ex parte, Ee Eastgate, (1905) 1 K. B. 465; 74 
 
 L. J. K. B. 324 ; 92 L. T. 207 ; 12 Manson, 11 59 
 
 Ex parte, Ee Weibking, (1902) 1 K. B. 713; 71 
 
 L. J. K B. 389 ; 86 L. T. 24 - 100 
 
 Washborn v. Black (1774), 11 Bast, 405 (n.) ; 10 E. E. 538 (n.)- 123- 
 Watkins, Ex parte, Ee Couston (1873), 8 Oh. D. 520 ; 42 L. J. 
 
 Bank. 50 ; 28 L. T. 793 102 
 
 V. WooUey (1818), Gow. 69 145, 160' 
 
 Watson, Ee, Ex parte Official Eeoeiver, (1890) 25 Q. B. D. 27 ; 
 59 L. J. Q. B. 394 ; 63 L. T. 269 
 
 — V. Peache (1834), 1 Bing. N. 0. 327 
 
 Watts V. Shuttleworth (1801), 7 H. & N. 353 ; 
 
 229 ; 5 L. T. 58 ; 126 E. E. 471 
 Wauthier v. WUson (1912), 28 T. L. E. 239 
 Webb V. Beavan (1844), 6 M. & G-. 1056 
 Weeton v. Woodcock (1840), 7 M. & W. 14 ; 
 
 56 E. E. 606 131 
 
 Weiner v. Harris, (1910) 1 K. B. 285 ; 79 L. J. K. B. 343 ; 
 
 101 L. T. 647 ; 26 T. L. E. 96 8 
 
 Wellock V. Oonstantiae (1863), 2 H. & 0. 146 ; 32 L. J. Ex. 
 
 285 ; 7 L. T. 751 ; 133 E. E. 622 79- 
 
 WeUs V. Abrahams (1872), 7 Q. B. 554 ; 41 L. J. Q. B. 306 ; 
 
 26 L. T. 326 79 
 
 V. Kingston-upon-HuU (1875), 10 0. P. 402 ; 44 L. J. 
 
 0. P. 257 ; 32 L. T. 615 - .31, 118 
 
 
 2, 
 
 3,4 
 
 r 
 
 58, 
 
 101 
 
 53 ; 29 L. J. 
 
 Ex. 
 
 33- 
 
 
 33 
 
 1, 36 
 64 
 
 10 L. J. Ex. 
 
 183; 
 
 
CASKS CITED. xliu 
 
 PAGE 
 
 Werth V. The London & Westminster Loan Oo. (1889), o 
 
 T. L. E. 521 119 
 
 West Cock, The, (1911) P. 208 ; 80 L. J. P. 97 ; 104 L. T. 736 - 22 
 
 Wharton v. Walton (1845), 7 Q. B. 474 ; 14 L. J. Q. B. 321 28 
 
 Wheatley's Trustee v. Wheatley (1901), 85 L. T. 491 2 
 White !■. Spettigue (1845), 13 M. & W. 603 ; 14 L. J. Ex. 99 ; 
 
 67 E. E. 753 79 
 
 c. Steadman, (1913) 3 K. B. 340; .S2 L. J. K. B. 846 ; 
 
 109 L. T. 249 23 
 
 Whitehorn v. Davison, (1911) 1 K. B. 463 ; 80 L. J. K. B. 425 ; 
 
 104 L. T. 234 9, 13 
 
 Whiteley, Ex parte, Ee Chapman (1894), 11 T. L. E. 92; 
 
 1 Hansen, 415 - 103 
 
 Whitfield V. Brand (1847), 16 M. & W. 282 ; 16 L. J. Ex. 103 ; 
 
 73 E. E. 502 - 99, 102 
 
 Whitworth v. Smith (1832), 5 C. & P. 250 ; 1 M. & Eob. 193 - 127, 
 
 166, 167 
 Wiehe v. Dennis (1913), 29 T. L. E. 250 48 
 
 Wiggins, Ex parte (1832), 2 D. & C. 269 ; M. ife B. 168 102 
 
 WUkinson r. Hall (1837), 3 Bing. N. C. 508 ; 6 L. J. C. P. 82; 
 
 43 E. E. 728 121 
 
 t;. Verity (1871), 6 C. P. 206 ; 40 L. J. C. P. 141 ; 
 
 24L. T. 32 144,148,162 
 
 Wilksi-. Wood, (1892) 1 Q. B. 684; 61 L. J. Q. B. 516; 66 
 
 L. T. 520 39 
 
 Williams v. MUlington (1788), 1 H. Black. 81 ; 2 E. E. 724 14 
 
 V. Morris (1841), 8 M. & W. 488 60 
 
 Willmott V. London Eoad Car Co., (1910) 2 Ch. 525; 80 L. J. 
 
 Oh. 1 ; 103 L. T. 447 30 
 
 Wiimot V. Alton, (1897) 1 Q. B. 17; 66 L. J. Q. B. 42; 75 
 
 L. T. 447 81 
 
 Wilson V. Anderton (1830), 1 B. & Ad. 450 ; 9 L. J. K. B. 48 ; 
 
 35 E. E. 348 -53, 145, 160 
 
 V. Barker (1833), 1 N. & M. 409 ; 4 B. & Ad. 614 168 
 
 V. Nightingale (1846), 8 Q. B. 1034 ; 15 L. J. Q. B. 
 
 309; 70E. E. 727 122 
 
 WUton V. Girdlestone (1822), 5 B. & Aid. 847 . 160 
 
 Wingfield, Ex parte, Ee Florence (1879), 10 Ch. D. 591 ; 40 
 
 L. T. 15 lOa 
 
 Winkfield, The, (1902) P. 42 ; 71 L. J. P. 21 ; 85 L. T. 668 46, 
 
 116, 143, 164 
 Winter v. Bancks (1901), 84 L. T. 504; 65 J. P. 468; 17 
 
 T. L. E. 446 ; 19 Cox, C. C. 687 - - 20, 168 
 
xliv 
 
 CASES CITED. 
 
 PAGE 
 
 Wood V. Bell (1856), 6 E. & B. 355 ; 25 L. J. Q. B. 321 ; 103 
 
 E. E. 735 114, 148 
 
 V. Leadbitter (1845), 13 M. &W. 838; 14 L. J. Ex. 161; 
 
 67 E. E. 831 60, 61 
 
 V. Manley (1839), 11 A. & E. 34; 9 L. J. Q. B. 27; 52 
 
 E. E. 271 - 61, 66 
 
 V. Muiton (1877), 47 L. J. Q. B. 191 ; 37 L. T. 788 41 
 
 V. EowcHffe (1846), 6 Hare, 183; 17 L. J. Oh. 83; 77 
 
 E. E. 68 151 
 
 Woods V. Durrant (1846), 16 M. & W. 149 ; 16 L. J. Ex. 313 ; 
 
 73 E. E. 443 123 
 
 Woolaston v. StafCord (1854), 15 C. B. 278 ; 100 E. E. 350 127 
 
 Woolf V. Woolf, (1898) 1 Ch. 343 ; 68 L. J. Oh. 82 ; 79 L. T. 
 
 725 - 36 
 
 Wright V. Stavert (1860), 2 El. & El. 721 ; 29 L. J. Q. B. 161 ; 
 
 2L. T. 175; 119E. E. 930 - 60 
 
 Wylde V. Legge (1901), 84 L. T. 121 7, 11 
 
 Wyman v. Kiiight (1888), 39 Ch. D. 165; 57 L. J. Oh. 886 ; 59 
 L. T. 164 153 
 
 Y. 
 
 Yarborough i). Bank of England (1812), 16 East, 6; 14 E. E. 
 
 272 32 
 
 Yates V. Eastwood (1851), 6 Ex. 805; 20 L. J. Ex. 303; 86 
 
 E. E. 482 126 
 
 Young, Ex parte, Ee Kitchin (1881), 17 Oh. D. 668 ; 45 L. T. 
 
 90 - 34 
 
 V. Bond (1896), 12 T. L. E. 160 17 
 
 V. Liverpool, (1911) 2 K B. 195; 80 L. J. K. B. 778; 
 
 104 L. T. 676 60 
 
( xlv ) 
 
 STATUTES CITED. 
 
 Note. — In the text, the statutes are cited by short titles, indudincf- 
 those provided by the Short Titles Act, 1896 (59 & 60 Vict. c. 14). The 
 session and chapter of each statute can readily be ascertained by 
 reference to the folloiuing alphabetical list. 
 
 A. 
 
 PAGE 
 
 Admiralty Court Act, 1861 (24 & 25 Vict. c. 10), s. 16 57 
 
 Agricultural Holdings Act, 1908 (8 Edw. VII. c. 28), 
 
 s. 21 131 
 
 s. 29, sub-s. 4 90, 93, 116- 
 
 B. 
 
 Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), s. 15, sub-s. 5 98 
 
 1883 (46 & 47 Vict. c. 52), s. 44, sub.-s. 2 (iii) 
 
 57,98 
 
 1913 (3 & 4 Geo. V. c. 34), s. 15 56 
 
 s. 16 150- 
 
 s. 18 57,120- 
 
 s. 23 - 58 
 
 Bills of Sale Act, 1878 (41 & 42 Vict. c. 31), s. 4 3 
 
 s. 10 82. 
 
 s. 11 82 
 
 1882 (45 & 46 Vict. c. 42), s. 9 - 3 
 
 C. 
 
 Civil Procedure Act, 1833 (3 & 4 Will. IV. c. 42), s. 3 - 34 
 
 s. 28 39- 
 
 s. 29 - 161, 164 
 Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), s. 26 - 25 
 Companies Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 16), 
 
 s. 97 - - - 30. 
 
xlvi STATUTES CITED. 
 
 PAGE 
 
 Companies (Consolidation) Act, 1908 (8 Edw.' VII. c. 69), s. 76 - 30 
 
 s. 93 141 
 
 ■Conveyancing Act, 1881 (44 & 45 Vict. c. 41), 
 s. 19, sub-s. 1 (iii) 
 s. 44 
 
 1911 (1 & 2 Geo. V. 
 
 ■County Courts Act, 1888 (51 & 52 Vict. 
 
 
 s. 
 
 100- 
 
 141 
 
 
 s. 
 
 101- 
 
 141 
 
 
 s. 
 
 116- 
 
 31 
 
 
 8. 
 
 243- 
 
 31 
 
 c. 41), 
 
 
 
 90 
 91 
 
 c. 37), s. 6 
 
 
 
 91 
 
 c. 43), s. 56 
 
 
 
 154 
 
 8. 107 
 
 
 
 155 
 
 6. 116 
 
 
 153, 
 
 163 
 
 s. 147 
 
 
 56, 
 
 114 
 
 s. 156 
 
 - 
 
 
 55 
 
 s. 160 
 
 
 
 57 
 
 . c. 23), s. 6 
 
 
 
 18 
 
 Vict. 0. 18), s. 
 
 7 
 
 
 25 
 
 Criminal Appeal Act, 1907 (7 Edw. VH 
 
 Procedure Act, 1865 (28 & 29 Vict. o. 18), s 
 
 D. 
 
 Diplomatic Privileges Act, 1708 (7 Anne, c. 12), s. 3 - 115 
 Distress Acts — See "Distress for Eent Act," "Landlord and 
 
 Tenant Act," and " Law of Distress Amendment Act." 
 
 Distress (Costs) Act, 1817 (57 Geo. III. c. 93) - - 126 
 
 • 1827 (7 & 8 Geo. IV. c. 17) 129 
 
 Distress for Eent Act, 1689 (2 WUl. & M. c. 5), s. 1 120, 126 
 
 8. 2 - 122 
 
 s. 3 110, 124 
 
 8. 5 - 165 
 
 1737 (11 Geo. II. c. 19), s. 1 122 
 
 s. 10 - 122 
 
 s. 19 - 166 
 
 s. 20 - 166 
 
 E. 
 
 Electric Lighting Act, 1882 (45 & 46 Vict. c. 56), 
 
 8. 25 56, 58, 116 
 
 1909 (9 Edw. VII. c. 34), 
 
 s. 16 - 56, 58, 116 
 
 Execution Act, 1844 (7 & 8 Vict. e. 96), s. 67 -« 57 
 
STATUTES CITED. xlvil 
 
 
 
 P.\QE 
 
 Factors Act, 1889 (52 & 53 Vict. c. 45), s. 1 
 
 
 11, 30 
 
 s. 2 
 
 
 6, 8, 11 
 
 s. 9 
 
 6, 8, 
 
 9, 12, 15, 
 43, 146 
 
 Finance Act, 1907 (7 Edw. VII. c. 13), s. 7 
 
 - 
 
 27 
 
 Forcible Entry Act, 1381 (5 Eicli. II. stat. 1, c. 8) 
 
 
 62, 65, 69 
 
 G. 
 •Gas Works Clauses Act, 1847 (10 & 11 Vict. c. 15), 
 
 s. 14 
 
 115 
 
 1871 (34 & 35 Vict. c. 41), 
 
 s. 18 
 
 115 
 
 H. 
 
 
 
 Horse-Stealing Act, 1555 (2 & 3 Phil. & Mar. o. 7) 
 
 - 
 
 - 17 
 
 1589 (31 EKz. c. 12) 
 
 
 - 17 
 
 Hosiery Act, 1843 (6 & 7 Vict. c. 40), s. 18 
 
 
 115 
 
 I. 
 Infants' Eelief Act, 1874 (37 & 38 Vict. c. 62) - 
 
 
 >a4 
 
 Innkeepers Act, 1878 (41 & 42 Vict. c. 38) 
 
 
 52 
 
 Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 3 
 
 
 44 
 
 s. 19 
 
 
 - 30 
 
 s. 26 78 
 
 J. 
 
 Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 25, sub-s. 6 83 
 
 8. 89 154 
 1890 (53 & 54 Vict. c. 44), s. 5 150 
 
 Landlord and Tenant Act, 1709 (8 Anne, c. 18), s. 1 57, 90 
 
 6. 6 113, 120 
 
 s. 7 113, 120 
 
 1730 (4 Geo. II. c. 28), s. 1 121 
 
 s. 5 91 
 
 1851 (14 & 15 Vict. c. 25), s. 3 131 
 
 Larceny Act, 1861 (24 & 25 Vict. c. 96), s. 3 10, 14, 36, 63, 79 
 
 s. 88 - 140 
 
 s. 91 - 10 
 
 s. 100 - 17 
 
xlviii STATUTES CITED. 
 
 PAGE- 
 
 Law of Distress Amendment Act, 1888 (51 & 62 Vict. c. 21), 
 
 s. 4 - - 113, 114 
 
 s. 6 no- 
 
 s. 7 - - 119 
 
 1895 (58 & 59 Vict. c. 24), 
 
 s. 2 119' 
 
 s. 4 - 112, 113 
 
 1908 (8 Edw. VII. c. 53), 
 
 s. 1 89, 90, 91, 104 
 
 s. 2 - 109, no, 111, 164 
 
 s. 4 32, 90, 92, 109, 111, 112, 116 
 
 s. 5 91 
 
 s. 6 109- 
 
 s. 8 89 
 
 s. 9 90' 
 
 Limitation Act, 1623 (21 Jac. I. c. 16), s. 3 - 34, 148, 162 
 
 Limitations of Actions and Costs Act, 1842 (5 & 6 Vict. c. 97), 
 
 s. 2 124 
 
 Lodgers' Goods Protection Act, 1871 (34 & 35 Vict. c. 79) 89' 
 
 Lord Tenterden's Act — See Statute of Frauds Amendment. 
 
 M. 
 
 Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), 
 
 s. 1, sub-s. 2 36. 
 
 s. 12 37 
 
 s. 17 - - 37 
 
 Mercantile Law Amendment Act, 1857 (19 & 20 Vict. c. 97), 
 
 s. 3 32: 
 
 Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), 
 
 ss. 492—501 52 
 
 Metropolitan Police Courts Act, 1839 (2 & 3 Vict. c. 71), 
 
 s. 27 - - - - 19 
 
 s. 28 - 19" 
 
 s. 39 - - 112 
 
 s. 40 - 19' 
 
 N. 
 
 National Insurance Act, 1911 (1 & 2 Geo. V. c. 55), s. 68 57, 
 
 59, 119' 
 
STATUTES CITED. xlix 
 
 0. 
 
 PAGE 
 
 Offences against the Person Act, 1861 (24 & 25 Vict. c. 100), 
 
 s. 45 69 
 
 Parist Constables Act, 1872 (35 & 36 Vict. o. 92), s. 13 126 
 
 Pawnbrokers Act, 1872 (35 & 36 Vict. c. 93), s. 19 12 
 
 s. 30 19 
 
 s. 33 14 
 
 Perjury Act, 1911 (1 & 2 Geo. V. c. 6), s. 5 - 107,140 
 
 Pistols Act, 1903 (3 Edw. VII. c. 18) 23 
 
 PoHce Property Act, 1897 (60 & 61 Vict. c. 30) 20 
 
 Probation of Offenders Act, 1907 (7 Edw. VII. c. 17), s. 1, 
 
 sub-s. 4 18 
 
 E. 
 
 Eailway Glauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), 
 
 8. 97 - 52 
 
 EoUing Stock Protection Act, 1872 (35 & 36 Vict. 
 
 c. 50), s. 3 115 
 
 Eeal Property Act, 1845 (8 & 9 Vict. c. 106), s. 3 97 
 
 S. 
 
 Sale of Goods Act, 1893 (56 & 57 Vict. c. 71), s. 1 
 
 s. 2 
 
 30, 82 
 34 
 
 s. 3 
 
 31, 82 
 
 s. 4 
 
 24,82 
 
 s. 10 
 
 44 
 
 s. 14 
 
 22 
 
 s. 21 
 
 10, 18 
 
 s. 22 
 
 16 
 
 s. 24 
 
 17, 18, 19 
 
 s. 25 
 
 7, 43, 146 
 
 s. 38 
 
 41 
 
 s. 53 
 
 23 
 
 Settled Land Act, 1882 (46 & 46 Vict. c. 38), s. 2, sub-s. 
 
 Stamp Act, 1891 (54 & 55 Vict. c. 39), s. 14, sub-ss. 1, 4 
 
 s. 41 
 
 s. 59, sub-s. 1 
 First Schedule - 
 
 6 96 
 - 29 
 
 82 
 
 83 
 
 27,28 
 
 R. 
 
 d 
 
1 STATUTES CITED. 
 
 PAGE 
 
 Statute of Frauds, 1677 (29 Car. II. c. 3), s. 3 24, 25, 26, 97 
 
 s. 4 - 32 
 
 Amendment Act, 1828 (9 Geo. IV. c. 14), 
 
 s. 6 20, 30 
 
 Statutory Declarations Act, 1835 (5 & 6 Vict. c. 62) 140 
 
 Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), s. 27 18 
 
 Taxes Management Act, 1880 (43 & 44 Vict. c. 19), 
 
 s. 86, 8ub-s. 1 128 
 
 W. 
 
 Waterworks Clauses Act, 1847 (10 Vict. c. 17), s. 44 116 
 1863 (26 cfe 27 Vict. c. 93), s. 14 116 
 
THE 
 
 HIRE-PURCHASE SYSTEM. 
 
 CHAPTER I. 
 
 THE NATURE AND GENERAL INCIDENTS OF THE HIRE-PURCHASE 
 
 SYSTEM. 
 
 The contract of letting goods on hire constitutes the class 
 of bailment described, in Coggs w Bernard, as Locatio et 
 conductio. 
 
 Under a simple hiring agreement, goods are let to a hirer 
 for a temporary purpose, without any intention, express or 
 implied, that they shall eventually become his property. 
 
 Under a hire-purchase agreement, goods are let upon such 
 terms and conditions tliat, if the provisions of the agreement 
 are duly performed by the hirer, the absolute property in 
 the goods eventually vests in him. 
 
 The chief differences between hire-purchase agreements 
 and agreements for simple hire are that the latter agreements 
 cannot amount to contracts to buy, that under them the 
 hirer can never become the owner of, or give a third jDerson 
 a title to, the goods, and that goods comprised in them are 
 not expressly excepted from the protection of The Distress 
 Act, 1908. The two kinds of agreement are also, in certain 
 respects, subject to different stamp duties. Subject to these 
 differences, practically all the general law of hire applies 
 equally to hire-purchase agreements and agreements for 
 simple hire. 
 
 E. 1 
 
2 THE HIRE-PURCHASE SYSTEM. 
 
 A hire-purchase agreement is, in form, a document in 
 writing, not usually under seal, signed by the parties thereto, 
 by which the owner of goods — such as machinery, furniture, 
 pianos, &c. — agrees to let them on hire for a term to another 
 person, called " the hirer," who agrees to hire the same at a 
 certain rent payable quarterly, monthly, or weekly (or as 
 the case may be), on certain fixed days. The agreement 
 (which is, in effect, a contract by the owner to sell) provides 
 that, when a total sum mentioned therein has been paid by 
 way of rent, the goods shall become the absolute property of 
 the hirer, but that until such sum has been paid they shall 
 remain the sole property of the owner, the hirer being merely 
 a bailee thereof. The agreement also provides that the hir- 
 ing shall immediately determine, and that the owner shall 
 have power to seize and retake possession of and remove the 
 goods if the rent is not punctually paid, or if the hirer does 
 not observe and perform, or commits any breach of, the 
 other stipulations and conditions of the agreement which are 
 inserted for the protection of the owner. 
 
 Eills of Sale Acts. 
 
 A bond fide hire-purchase agreement is not subject to The 
 Bills of Sale Acts, since it does not pass to the hirer the 
 general property in the goods. (Ex parte Crawcour, Re 
 Robertson, also reported as Ex parte Lewin d; Co., Tie 
 Robertson.) 
 
 If a document which purports to be a hire-purchase agree- 
 ment is, however, really a device or cloak for securing a loan, 
 then it amounts to a bill of sale, and will be void as a 
 security, both against the trustee in bankruptcy of the hirer, 
 and also as against the hirer himself. {In re Watson, Ex 
 parte The Official Receiver ; Wheatley's Trustee v. W.heat- 
 ley ; Mellor's Trustee v. Maas, also cited as Maas v. 
 Pepper.) Moreover, it is impossible to make such an agree- 
 ment good as a security by registering it as a bill of sale, 
 since every bill of sale given by way of security for the 
 
NATURE AND GENERAL INCIDENTS. 3 
 
 payment of m.omy is, by sect. 9 of The Bills of Sale Act, 
 1882, void, unless made in accordance with the form in the 
 Schedule to that Act; and the ordinary hire-purchase agree- 
 ment could not be made to comply with such form. (See 
 E.r parte Parsons.) 
 
 In Re Watson, Ex part,e The Official Receiver, the Court 
 of Appeal held that in order to determine whether a 
 document, which purports to be a hire-purchase agreement, 
 is or is not an assurance or licence !to take possession of 
 personal chattels as security for a debt within sect. 4 of The 
 Bills of Sale Act, 1878, the Court is not bound merely to 
 look at the form of the document itself, but is entitled to 
 go outside it and inquire into the circumstances to see 
 whether or not it represents the real transaction between the 
 parties. The facts of this case furnish a good illustration of 
 the fallacy of attempting to evade the publicity of registra- 
 tion under The Bills of Sale Acts, and secure a loan of 
 money by an apparent hire-purchase agreement. Mrs. 
 Watson was the owner of some furniture, upon the security 
 of which she wished to raise a loan without giving a bill of 
 sale. With a view to enabling this to be done, she went 
 through the fiction of selling the furniture to a Mr. Love 
 for £150, and handed a chair over to him in the name of the 
 whole of the furniture. On the same day Love let the 
 furniture to Watson under a hire-purchase agreement, which 
 provided that the furniture should become Watson's when 
 she had paid £200. Watson having become bankrupt, the 
 Court held that the transaction was void as against the 
 official receiver, being, in fact, a loan with security — a 
 mortgage, and not a sale with a right of repurchase. Lord 
 Esher, M. R., was of opinion that the agreement was, at the 
 very least, a licence to take possession , of personal chattels 
 as security for a debt, and was an instrument which came 
 within sect. 4 of The Bills of Sale Act, 1878. 
 
 On the other hand, if a sale (whether carried out by an 
 absolute bill of sale or otherwise) is a real and honest trans- 
 action, and is afterwards foUoAved by a bond fide hire- 
 
 1 (2) 
 
4 THK HIRK-PURCHASE SYSTEM. 
 
 purchase agreement, and the sale and, hire-purchase agree-, 
 ment really form separate and distinct transactions, the 
 hire-purchase agreement does not come within The Bills of 
 Sale Acts. (In re Watson, Ex parte The Official Receiver ; 
 North Central Wagon Co. v. Manchester, Sc. Railway Co. ; 
 Stammers v. Margrett.) 
 
 In Prudential Mortgage Co. v. Marylebone Borough 
 Council, the lessee of certain premises, being in arrears witli 
 his rent, agreed for the sale to his lessor of the furniture on 
 the premises for the sum of £1,500, to be applied in reducing 
 the arrears of rent; and the lessor agreed to grant the lessee 
 a lease of the same furniture for six months •svith an option 
 to buy it back at any time during that period for a like sum. 
 The transaction was' effected as follows: A representative of 
 the lessor gave cheques for the £1,500 to the lessee, who 
 thereupon handed him a chair by way of delivery of the 
 whole of the furniture. The lessee then signed a document 
 consisting of a receipt for the £1,500 as consideration for 
 the furniture comprised in the inventory attached. The 
 lessee's part of the hiring agreement was next handed over 
 duly executed, but the lessor did not execute the agreement 
 till a day or two later. Finally, the lessee indorsed the 
 cheques over to the lessor in reduction of the arrears of rent. 
 No document was registered as a bill of sale. Some four 
 months later, the defendants distrained on the furniture for 
 rates owing by the lessee in respect of the premises. There- 
 upon the lessor brought this action, claiming a declaration 
 that the furniture was his property, and did not belong to 
 the lessee. It was held that as the property in the furniture 
 passed by delivery, the receipt with inventory attached was 
 not an assurance of the furniture, but a mere record of the 
 sale, which did not require to be registered as a bill of sale 
 under The Bills of Sale Act, 1878. It was held also, on the 
 facts, that the whole transaction did not amount to a mere 
 mortgage of the furniture, but that there was a bond fide 
 sale of it to the lessor. The transaction was not therefore 
 invalidated by The Bills of Sale Act, 1882. 
 
NATURE AND GENERAL INCIDENTS. 5 
 
 If a transaction, which purports to be a hire-purchase 
 transaction, is in fact a bill of sale transaction, it maj- be 
 avoided by the hirer as well as by his creditors {Madell v. 
 Thomas); and, in such a case, a person who has become 
 surety for the performance of the terms of the so-called hire- 
 purchase agreement is discharged. {Broufiic v. Blaine.) 
 
 The Factors Act and The Sale of Goods Act. 
 
 The great difhculties with which owners of hired goods 
 have to contend are, the adverse claims of third parties, 
 under which owners may lose their goods. 
 
 These adverse claims arise principally through wrongful 
 sales and pledges on the part of hirers, liens created by a 
 hirer, distress, execution, and bankruptcy. 
 
 The adverse claims above mentioned will be dealt "with in 
 the course of this work, attention being first directed to those 
 arising under The Factors Act, 1889, and The Sale of Goods 
 Act, 1893. 
 
 Under a hire-purchase agreement in tlie usual form, a 
 hirer cannot, whilst the hiring continues, give a third person 
 a valid title to the goods under any attempted sale, pledge, 
 or other disposition thereof. 
 
 If the hirer were made to contract to pay the total sum 
 required to purchase the goods, the legal effect would be to 
 make the hirer a person who had " agreed to buj- goods " 
 within the meajiing of sect. 9 of The Factors Act, 1889, 
 and sect. 25 of The Sale of Goods Act, 1893 (set out below), 
 and he could, in fraud of the owner, under any purported 
 sale, pledge, or other disposition of the goods, transfer the 
 general property therein, and give a good title to any person 
 receiving the goods in good faith, and without notice of the 
 rights of the true owner of the goods. 
 
 In order to prevent the hirer, in fraud of the owner, having 
 the power to confer a good title on a third person, the general 
 practice is to provide by the hire-purchase agreement that 
 the hirer may put an end to the hiring by returning the 
 
6 THE HIKE-PURCHASE SYSTEM. 
 
 goods, and to leave it entirely at his option as to whether he 
 will pay the whole amount required to purchase the goods. 
 Under such provisions as these, the hirer is not a person who 
 has " agreed to huy goods." 
 
 The Factors Act, 1889, and The Sale of Goods Act, 1893, 
 have considerably varied the rules of the common law, under 
 which any unlawful disposition of goods by a hirer entitled 
 the true owner (m addition to his remedies against the hirer) 
 to bring aai action against the purchaser or other transferee, 
 either in detinue to recover the goods themselves, or for con- 
 version to recover damages, unless the goods had been sold in 
 marJcet odert (see this title below), and the hirer had not 
 been convicted. {Cooper v. Willomatt ; Loeschman v. 
 Machin.) 
 
 By sect. 2, sub-sect. 1, of The Factors Act, 1889, it is 
 provided: — 
 
 " Wliere a mercantile agent is, with the consent of the owner, 
 in possession of goods or of the documents of title to goods, any 
 sale, pledge, or other disposition of the goods, made by him 
 when acting in the ordinary course of business of a mercantile 
 agent, shall, subject to the provisions of this Act, be as valid 
 as if he were expressly authorized by the owner of the goods to 
 make the same; provided that the person taking under the 
 disposition acts in good faith, and has not at the time of the 
 disposition notice that the person making the disposition has 
 not authority to make the same." 
 
 By sect. 9 of the same Act it is provided: — 
 
 "Where a person, having bought or agreed to buy goods, 
 obtains, with the consent of the seller, possession of the goods 
 or the documents of title to the goods, the delivery or transfer, 
 by that person or by a m.ercantile agent acting for him, of the 
 goods or documents of title, under any sale, pledge, or other dis- 
 position thereof, or under any agreement for sale, pledge,, or other 
 disposition 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 person making the delivery or transfer were a 
 mercantile agent in possession of the goods or documents of 
 title with the consent of the owner." 
 
NATURE AND GENERAL INCIDENTS. 7 
 
 By sect. 25, sub-sect. 2, of The Sale of Goods Act, 1893, 
 it is provided: — 
 
 ■' ^^^lere a person, having bougM or agreed to buy goods 
 obtains, with, the consent of the seller, possession 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, 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 person making the delivery or transfer were a 
 mercantile agent in possession of the goods or documents of 
 title with the consent of the owner." 
 
 It will be seen that this sub-sectioa reproduces sect. 9 of 
 The Factors Act, 1889 (which is not repealed), except that 
 the words " or under any agreement for sale, pledge, or other 
 disposition thereof " are omitted. 
 
 With reference to the above sections, the words " agreed 
 to buy goods " have received judicial construction in Lee v. 
 Butler, cited under the heading "Sale by Hirer," below; 
 in Helby v. Matthetvs and Wylde v. Legge, cited under the 
 heading " Pledge by Hirer," below; and in Hull Ropes Co. 
 v. Adams; Thompson v. Veale; and Grande Maison 
 D' Automobiles, Limited v. Beresford. 
 
 It was held, in Helby v. Matthews, that the agreement to 
 buy contemplated by the above sections must amount to an 
 agreement to buy at the time when it is entered into. 
 
 A person who obtains goods " on sale or return " is not in 
 possession of the goods under an agreement to buy them 
 within the meaning of the above sections. (Edicards v. 
 Yaughan.) 
 
 In Kitto V. Bilbie, a person, having in his possession a 
 gas engine, under a hire-purchase agreement which did not 
 amount to a contract on the part of tJie hirer to buy, and in 
 respect of which payments were in arrear, executed an 
 assignment of his stock-in-trade, plant, machinery, goods, 
 and all other his real and personal estate to a trustee for the 
 
8 THE HIRE-PURCHASE SYSTEM. 
 
 benefit of his creditors. The trustee took possession of the 
 assignor's effects and the gas engine; but the owners, who 
 had let the engine on hire, broke into the premises where it 
 was and took it away. The trustee then brought an action 
 against the owners to recover the gas engine and damages 
 for the trespass. It was obvious that the assignment did not 
 cover the engine, because it was not the property of the 
 assignor, and on this ground Vaughan Williams, J., gave 
 judgment for the defendants. It was not proved that, at the 
 time of the execution of the assignment, the trustee had 
 notice that the engine was on hire, and it was contended that 
 he was entitled to it under sect. 9 of The Factors Act, 1889, 
 but this contention was overruled. In this case, Vaughan 
 Williams, J., remarked that there was great doubt whether 
 an assignment for the benefit of creditors could be within 
 either sect. 2 or sect. 9 of The Factors Act, 1889, but, 
 having regard to Lee v. Butler, there would seem to be no 
 reason why goods held under a hire-purchase agreement,! 
 which amounts to a contract on the part of the hirer to buy, 
 should not pass mider an assignment for the benefit of 
 creditors containing appropriate words. (Compare Shen- 
 stone V. Hilton and Hull Ropes Co. v. Adams.) The deci- 
 sion in Kitto v. Bilbie may be supported, on the basis of 
 Helhy v. Matthews, on the ground that the hire-purchase 
 agreement did not amount to a contract to buj', as Avell as 
 on the ground that the assignment did not cover the engine. 
 
 As to the words " mercantile agent," and " in the ordinary 
 course of business of a mercantile agent," it has been held 
 that the question whether a pledger is a mercantile agent is 
 one of fact {Strohnienger v. Attenborough); and that the 
 kind of mercantile agent contemplated is a mercantile agent 
 whose business it is to sell goods on commission. (Wadding- 
 ton V. Neale; Turner v. Sampson.) 
 
 See also the following cases: Inglis v. Robertson ; Weiner 
 V. Harris, overruling Hastings v. Pearson ; Oppenheimer v. 
 Attenborough; Janesich v. Attenborough ; De Gorter v. 
 Attenborough ; Mehta v. Sutton. 
 
NATUKE AND GENERAL INCIDENTS. 9 
 
 As to the words " consent of tlio owner or seller," see the 
 following: Cahn v. Poclcetts, d'c. Co.; Oppenheimer v. 
 Frazer; WkiUhorn v. Davison; Mehta v. Sutton. 
 
 As to the words " delivery or transfer, under any sale, 
 pledge, or other disposition," see Waddvngtou \. JSeale, cited 
 below under the heading "Pledge by Hirer"; Shenstone 
 V. Hilton, cited below under the heading " Sale by Auc- 
 tioneer "; Hull Ropes Co. v. Adams; JSkliolson r. Harper; 
 and Kitto v. Bilbie. 
 
 Sale by Hirer. 
 
 In Lee v. Butler, certain goods Avere let out on hire under 
 an agreement in writing, dated yth INIay, 1892, whereby 
 the hirer bomid himself to pay the sum of £1 on the date of 
 the agreement, and the further sum of £96 4,s. on the 1st 
 August following, Avhereupon the goods were to become the 
 absolute property of the hirer. The hirer was not given the 
 option of terminating the hiring by delivering up the goods. 
 Before the whole of the instalments ^vere paid, the hirer 
 sold the goods to the defendant, who purchased them in good 
 faith, and without knowledge of the agreement, and removed 
 them from the hirer's premises. In an action to recover the 
 goods from the defendant, it was held that the agreement 
 was an agreement to buy goods within the meaning of 
 sect. 9 of The Factors Act, 1889, and that the defendant 
 had a good title to the goods. 
 
 If the agreement in the above case had provided that the 
 hirer should have the option of determining the hiring by 
 returning the goods, the hirer would not have been a person 
 who had " agreed to buy goods," and so could not have 
 given a good title to the purchaser. (Helby v. Mattheivs ; 
 Payne v. Wilson.) 
 
 If an owner stands by and permits the hirer to deal with 
 goods as if they belonged to the latter, and thereby induces 
 a third person to buy the goods, or to make an advance upon 
 them, the owner is estopped from claiming the goods from 
 such third person. (Gregg v. Wells; Freeman v. Cook; 
 
10 THE HIRE-PUKCHASE SYSTEM. 
 
 Waller v. Drakeford; Knights v. Wiffen; Lewis v. Clay. 
 And see sect. 21 (1) of The Sale of Goods Act, 1893.) 
 
 But, in Mamer v. Banks, it was held that a coaohbuilder 
 who let a brougham to a hirer by whom it was wrongfully 
 sold, was not estopped, as against the purchaser, through 
 having allowed the hirer's coat of arms to be painted on the 
 panels of the brougham. 
 
 A mere bargain and sale without delivery of chattels, 
 which do not belong to the vendor, not in market overt (see 
 this title below), is not a conversion, since it has no effect 
 and does not pass the property in or the possession of the 
 chattels. (Lancashire Wagon Co. v. Fitzhugh ; Cochrane 
 V. Moore; Consolidated Co. v. Curtis ; Delaney v. Wallis.) 
 It is to be noted that the words " or under any agreement: 
 for sale, pledge, or other disposition thereof," which appear 
 in sect. 9 of The Factors Act, 1889, are omitted from 
 sect. 25 (2) of The Sale of Goods Act, 1893. _ 
 
 If a hirer sells hired goods before he has completed aU 
 the payments stipulated for by the agreement, he is guilty 
 of larceny as a bailee under sect. 3 of The Larceny Act, 
 1861 (R. V. Wymi.; R. v. Richmond), and the goods are 
 "stolen goods." (Payne v. Wilsort.) A person who, with 
 knowledge of the facts, buys such goods from a hirer, may 
 be convicted as a receiver of stolen goods under sect. 91 of; 
 The Larceny Act, 1861. 
 
 In R. V. Johnson, it was held that there could be no con- 
 viction, under sect. 91 of The Larceny Act, 1861, of a person 
 who bought a horse not knowing it to be stolen, but, subse- 
 quently, on being informed of tlie fact, refused to give it up 
 unless he was repaid the amount he had paid to the person 
 from whom he had obtained it. (And see R. v. Batty.) 
 
 Pledge by Hirer. 
 
 In Waddington v. Neale, the plaintiffs employed an agent 
 for the sale, for cash or on the hire-purchase system, of 
 pianos consigned to him. The agent sent a piano to the 
 
NATUEE AND GENERAL INCIDENTS. 11 
 
 defendants, who were auctioneers, to be sold by auction, and 
 the defendants advanced £10 to bim on account of the pur- 
 chase-money. Before the sale took place, the plaintiffs 
 demanded the return of the piano from the defendants, and, 
 by arrangement, the piano was sold and realised £17 17s. Od. 
 In an action by the plaintiffs to recover that amount and 
 damages for detention, the defendants paid this sum into 
 Com-t, less the £10 advanced and their charges, and it was 
 held by a Divisional Court that, although the agent was a 
 " mercantile agent " within the meaning of sect. 1 of The 
 Factors Act, 1889, yet the transaction was not a " pledge " 
 (which would connote a term of redemption) of the piano 
 within the meaning of sect. 2 of that Act; nor, even if it 
 were a pledge, was it a pledge by the agent in the ordinary 
 course of business of a mercantile agent, and tharefore the 
 plaintiffs were entitled to recover the full amount from the 
 auctioneers. 
 
 In Wylde v. Legge, by an agreement in writing, one 
 Whitting agreed with the defendant to hire goods and to pay 
 the defendant the sum of £1 on signing the agreement, and 
 the balance in instalments of £1 per month until the full 
 amount of the value of the goods had been paid, when the 
 goods were to become the property of Whitting. The agree- 
 ment contained this clause: — " On default being made in 
 payment of such sums of one pound per month, I hereby 
 agree to give up all claims to the said goods and to delivej? 
 the same, free from damage or injury beyond fair wear and 
 tear, to the said Sarah Anne Legge (the owner) and to her 
 agents on demand." Whitting (the hirer) gave a bill of sale 
 of the goods to the plaintiff Wylde, who took the same i,n 
 good faith. Legge (the owner) removed the goods from 
 Whitting's premises and refused to give them up to the 
 plaintiff. The plaintiff Wylde (the bill of sale holder) 
 brought an action against Legge (the owner) for the return 
 of the goods, or their value, and damages for their detention, 
 and it was held by a Divisional Court, following Lee v. 
 Butler, that Whitting was a person who had " agreed to buy 
 
12 THE HIRE-PUECHASE SYSTEM. 
 
 goods " within sect. 9 of The Eactors Act, 1889, aaid that 
 the clause by which Whitting agreed to give up the goods 
 on default of payment of the monthly sums of £1 merely 
 gave a right to the owner to get back the goods upon default 
 of the hirer, hut did not give the hirer a right to put an end 
 to the agreement by delivering up the goods, and so the case 
 was not Avithin Helhy v. Matthews. 
 
 In Helby v. Matthews, the owner of a piano let it out on 
 hire under an agreement whereby, on payment of the whole 
 of certain monthly instalments, the piano was to become the 
 absolute property of the hirer, who had poiver to terminate 
 the hiring by delivering up the instrument. Before the 
 whole of the instalments were paid, the hirer pledged the 
 piano with a pawnbroker, who took it in good faith and 
 without knowledge of the agreement. In an action brought 
 by the owner to recover jjossession of the piano from the 
 paAAiibroker, it was held, by the House of Lords, that the 
 pa-^ATibroker had not obtained a good title to the piano under 
 sect. 9 of The Factors Act, on the ground that by the terms 
 of the agreement the hirer had not " agreed to buy," and 
 they distinguished the case from Lee v. Butler, in which the 
 agreement amounted to a contract by the hirer to purchase. 
 
 In Burrows v. Barnes, the defendant was the OAvner of a 
 bicycle which he let out on hire. The hirer fraudulently 
 pawned it, and the pledge not being redeemed within the 
 proper time was put up for auction, and bought by the 
 pawnbroker. He sold it to the plaintiff, who took it to the 
 defendant to repair. The defendant, recognising it as his 
 property, refused to give it up. The plaintiff ha.vxng 
 brought an action to recover the bicycle from the defendant, 
 it was held that sect. 19 of The Pawnbrokers Act, 1872, did 
 not give the paAvnbroker, or the purchaser from him, any 
 title as against the true owner, and that the defendant was 
 entitled to retain the bicycle. 
 
 There would seem to be some doubt as to whether a pawn- 
 broker becomes liable for conversion by the mere act of 
 innocently receiving goods in pledge. This point may 
 
NATUKE AND GENERAL INCIDENTS. 13 
 
 become material in deciding from wliat date the Statute of 
 Limitation begins to run {Clayton v. Le Boy), but other- 
 wise it is not of much importance, as an action against a 
 pawnbroker Avill generally be based upon a refusal by him, 
 or his servant {Jones v. Hart), to laand over the goods to the 
 true owner on demand. 
 
 In Singer Manufacturing Co. v. Clark, it Avas held, in 
 1879, that the delivery back of a sewing machine by a pawn- 
 broker to the pawner (who was not the true owner), after 
 notice of the true owner's title and demand, was a wrongful 
 conversion. This decision must, of course, now be read 
 subject to Lee v. Butler, in a case where a hire-purchase 
 agreement amounts to a contract to buy. 
 
 In S-packman v. Foster (a case of pledge of title-deeds), 
 it was held that if a person comes into possession of goods 
 innoeentl}', the right of action for conversion does not accrue 
 at the time of the commencement of the possession, but on 
 a refusal to deliver the goods. Till conversion there is no^ 
 right of action, and until refusal to deliver there is no 
 conversion. 
 
 See also on the point, M'Comhie v. Davies ; Fine Art 
 Society v. Unimi Bank of London; HoUitis v. Fowler; 
 Miller v. Dell; and Union Credit Bank v. Mersey Docks 
 Board. It is difficult to reconcile M'Combie v. Davies with 
 the decisions in Spackman v. Foster and Miller v. Delly 
 which appear to have been acted upon in Whitehorn v. Davi- 
 son. It should be noticed that, in Spackman v. Foster, 
 Grove, J., said: — " The dictum of Lord EUenborough in 
 M'Combie v. Davies . . was no more than a dictum, and 
 not necessary to the decision of the case, and it assumes that 
 the defendant in that case did claim a right to deal with the 
 goods adversely to the real owner by disposing of them . . . 
 In M'Combie v. Davies, the other judges, while assenting, 
 think it necessary to add that the defendant had refused to 
 deliver up the goods." 
 
 The law of market overt does not apply to a pledge. 
 {Hartop V. Hoare.) 
 
14 THE HIRE-PURCHASE SYSTEM. 
 
 A hirer, who pledges goods before he has made all the 
 payments under his agreement, may be convicted of larceny 
 as a bailee, under sect. 3 of The Larceny Act, 1861; but, 
 in order to convict him under this section, he must have 
 converted the goods with the intention of depriving the 
 owner permanently of them. If he wrongfully pledges the 
 goods, but intends to redeem them and restore them to the 
 owner, he cannot be convicted under the section. (J2. v. 
 Wym.) 
 
 Under sect. 33 of The Pawnbrokers Act, 1872 (which 
 Act is confined to cases in which the loan does not exceed; 
 £10), a person guilty of unlawful pawning is liable, on 
 summary conviction, to a fine not exceeding £5, and to 
 forfeit the full A^alue of the pledge. 
 
 In Fcmcett v. Bierman, it was held that the pawnbroker 
 was the party injured, within the meaning of sect. 33 of 
 The Pawnbrokers Act, 1872, and was entitled to prosecute, 
 and that the forfeiture imposed should be sufficient to make 
 good the sum lent by him. 
 
 In Picliford v. Cor si, it was held that a person wrongfully 
 pawning with a pawnbroker the goods of another person, 
 who subsequently recovers the goods, is liable to proceedings 
 under sect. 33 of The Pawnbrokers Act, 1872, at the instance 
 of the pawnbroker, notwithstanding that he has previously 
 been convicted of larceny of the goods. 
 
 As to " Orders of Restitution," see below, under that 
 title. 
 
 Sale by Auctioneer. 
 
 The liability of an auctioneer, in respect of the wrongful 
 conversion of goods, depends upon whether he deals with 
 the goods with the view of passing the property in them, or 
 whether he simply settles the price, or otherwise acts as a 
 mere intermediary between the seller and the purchaser; in 
 the former case he is liable, but in the latter he is not. 
 (Williams v. Millingttin ; Barker v. Furlong ; Cochrane v. 
 
NATURE AND GENERAL INCIDENTS'. 15 
 
 BijmiH; Consolidated Co. v. Cuiiis; Union Credit Bank v. 
 Mersey Docks Board.) 
 
 In Loeschman v. Machin, it was held that the hirer of a 
 piano, to whom the instrument had been let on simple hire, 
 and who had sent it to an auctioneer to be sold, was guilty 
 of a conversion; and so was the auctioneer, who refused to 
 deliver up the piano unless the expense incurred was first 
 paid. In the Preface to Vol. 20 of The Revised Eeports, 
 Sir Frederick Pollock says that the facts of this case disclose 
 a rudimentary form of the modern hire-purchase agreement. 
 
 In Shenstone v. Hilton, an action was brought by the 
 plaintiffs against the defendant, an auctioneer, for wrongful 
 conversion of a piano entrusted to him for sale by one Nye. 
 Nye, who was a furniture salesman, had obtained possession 
 of the piano from the plaintiffs under a hire-purchase agree- 
 ment, which was held to amount to a contract, on the part 
 of the hirer, to buy, and, after paying only a few instalt- 
 ments, sent it to the auctioneer for sale. The latter, know- 
 ing Nye to be a furniture salesman, accepted the piano, sold 
 it by auction and paid the purchase-money, less commission, 
 to Nye. The jury found that the auctioneer had received 
 the piano in good faith and without notice of any right of 
 the plaintiffs, and it was held by Bruce, J., that where any 
 person has agreed to buy and has obtained possession of 
 goods under a hire-purchase agreement, amounting to an 
 agreement for purchase, a deKvery of such goods by such 
 person to an auctioneer for sale comes under the words, " a 
 delivery, or transfer," in sect. 9 of The Factors Act, 1889; 
 and that an auctioneer who sells such goods " in good faith 
 and without notice of any lien or other right of the original 
 seller " is protected from liability for their wrongful con- 
 version. 
 
 It follows from the last-cited case, that if an auctioneer, 
 although innocently, purports to sell and transfer the pro- 
 perty in goods comprised in a hire-purchase agreement, 
 which does not amoumt to a contract for purchase, he will not 
 
16 THE HIRE-PURCHASE SYSTEM. 
 
 be protected from liability to the owner for wrongful con- 
 version. 
 
 Although the owner of goods sold by a hirer cannot 
 recover them from a person who has bought them in market 
 overt, until the hirer has been convicted, yet he has a r.i;ght 
 of action against the auctioneer who conducts the sale, if the 
 latter is not protected as above stated. The only person who 
 is protected by the law of market overt is the immediate 
 purchaser. (JDelaney v. WalUs ; Peer v. Humphrey.) 
 
 In addition to the auctioneer being liable, the purchaser 
 of goods at an auction (not being market overt), which 
 amounts to a,' conversion, is also liable to the true owner. 
 (Cooper V. Willomatt.) If such purchaser acts by an agent,, 
 the latter will also be liable if he deals with the goods with 
 the view of passing the property in them to the purchaser, 
 but not if he merely attends the auction to bid, and the goods, 
 are delivered direct by the auctioneer to the purchaser.. 
 (Stephens v. Ehoall ; HolUns v. Foivler.) 
 
 Market Overt. 
 
 Sect. 2,2 of The Sale of Goods Act, 1893, provides that: — 
 
 " (1) Where goods are sold, in market overt, according to the 
 usage of the market, the buyer acquires a good title to the 
 goods, provided he buys them in good faith and without notice 
 of any defect or want of title on the part of the seller. 
 (2) Nothing in this section shall affect the law relating to the- 
 sale of horses." 
 
 A sale in market overt is a sale for valuable consideration 
 in an open, public, and legally constituted market, of goods 
 openly exposed in bulk and not by sample (Crane v. London 
 Dock Co.), the contract being originated and completed in 
 the market. The market place, or spot of ground set apart 
 by custom for the sale, on market days, of particular goods 
 is, in the country, usually the only market overt, but in some 
 towns their customs extend the protection to sales outside a 
 recognised market. In the City of London, every open sale 
 
NATURE AND GENERAL INCIDENTS. 17* 
 
 ill a shop, or sale iii an open shop, by a shopkeeper to an 
 innocent customer (but not hy a customer to a shopkeeper: 
 Hargreave v. Spink) between sunrise and sunset on week- 
 days, of such goods as by the trade oi' the shopkeeper arc 
 put there for sale, is in market overt. It is a question of 
 fact, in each case, whether tlie premises in the City of 
 London in which the goods are sold constitute a "shop." 
 (See the judgment of Scrutton, J., in Clayton v. Le Boy, 
 in which the whole law of market overt, and the decisions 
 tliereon, are reviewed.). 
 
 A special law as to horses is contained in The Horse- 
 stealing Acts, 1555 and 1589. Unless the provisions of these 
 statutes have -been complied with, the property in a stolen 
 horse, even though it is sold in market overt, does not pass 
 to the purchaser. {Moran v. Fitt ; Young v. Bond.) 
 
 Inasmuch as a sale in market overt vests the property in 
 the goods in the purchaser, and it remains so vested until the 
 conviction of the seller, no action will lie against such pur- 
 chaser, if he disposes of the goods before a conviction, but 
 an action would lie against the sub-purchaser, unless he 
 also bought in market overt. (Horwood v. Smith.) And, 
 on this principle, the original owner of hired goods would 
 render himself liable to am action if, before the conviction 
 of the hirer, he were to seize the goods from a person who 
 had bought them in m,arket overt. {North v. Jackson.) 
 
 Orders of Restitution. 
 
 Sect. 100 of The Larceny Act, 1861, provides that on the 
 conviction of a person on indictment for stealing, taking, 
 converting, or disposing of any chattel, the chattel shall be 
 restored to the owner, and the Court shall have power to 
 award writs of restitution, or to order restitution of the 
 chattel in a summary manner. 
 
 Sect. 24 (1) of The Sale of Goods Act, 1893, provides 
 that where goods' have been stolen and the offender is prose- 
 cuted to conviction, the property in the goods so stolen 
 
 K. 2 
 
18 THE HIEE-PUECHASE SYSTEM. 
 
 revests in the person who was the owner of the gpods, or his 
 personal representative, notwithstanding any intermediate 
 dealing with them, whether by sale iu market ; overt, or 
 otherwise. 
 
 By sect. 6 of The Criminal Appeal Act, 1907, provision 
 is made for the suspensio'n of the operation of an order of 
 restitution, and of the effect of sub-sect. 1 of sect. 24 of 
 The Sale of Goods Act, 1893, pending an appeal against a 
 conviction on indictment, and negativing the order and sub- 
 section if the conviction is quashed. (And see B. v. Elliott.) 
 
 Sect. 27 of The Summary Jurisdiction Act, 1879, provides 
 that a conviction for an indictable offence authorised to be 
 dealt with summarily shall have the same effect as a convic- 
 tion on indictment, and the Court may make an order of 
 restitution. 
 
 Sect. 1 (4) of The Probation of, Offenders Act, 1907, 
 provides that an order under that section' shall, as regards 
 restitution of property, have the like effect as a conviction. 
 
 When a hire-purchase agreement amounts to a contract to 
 purchase on the part of the hirer, the conviction of the hirer 
 for larceny as a bailee does not, under sect. 24 (1) of The 
 Sale of Goods Act, 1893, revest the property in the goods 
 in the original owner, who is not entitled to an order of 
 restitution or to recover the goods from the hirer's trans- 
 feree, because sect. 21 (2) of The Sale of Goods Act provides 
 that nothing in that Act shall affect the provisions of The 
 Factors Act, or any enactment enabling the apparent owner 
 of goods to dispose of them as if he were the true owner. 
 (Payne v. Wilson; B. v. George.) 
 
 When a hire-purchase agreement does not amount to a 
 contract to purchase on the part of a hirer who fraudulently 
 disposes of the goods, the hirer cannot transfer any title to 
 the goods unless he sells them in market overt. If the goods 
 are not sold in market overt, the property in the goods is 
 not divested out of the true owner, who can rec0ver them by 
 action against the purchaser without obtaining the conviction 
 of the hirer. If, however, goods, obtained by a hirer under 
 
NATURE AND GENERAL INCIDENTS. 19 
 
 an agreement which does not amonnt to a contract to pur- 
 chase, ha\ e been sold by the hirer in market overt, then the 
 original owner must obtain the conviction of the hirer, and 
 on such conviction the property in the goods will revest in 
 the original owner, under sect. 24 (1) of Tlie Sale of Goods 
 Act, 1893, and he will be entitled to an .order of restitution. 
 
 Under sect. 30 of The Pawnbrokers Act, 1872, in the 
 cases mentioned in that section, where goods have been 
 wrongfully pledged for a sum not exceeding £10, the pawn- 
 broker ma}- be ordered to deliver up the goods to the true 
 owner on or without compensation being made to the pawn- 
 broker. 
 
 Under sects. 27 and 28 of The Metropolitan Police Courts 
 Act, 1839, metropolitan police magistrates are given un- 
 limited power to summarily order the delivery up of goods 
 which are stolen or unlawfully obtained, or, being lawfully 
 obtained, are unlawfully deposited, pawned, pledged, sold 
 or exchanged. 
 
 Sect. 40 gives the same magistrates power to summarily 
 order the delivery up of goods unlawfully detained, and to 
 adjudicate as to liens upon them, where the value of the 
 goods does not exceed £15. 
 
 There is no public statute conferring on justices outside 
 the metropolitan district powers in the nature of jurisdiction 
 in detinue similar to those conferred hj sect. 40 of The 
 Metropolitan Police Courts Act, 1839, but in some places 
 justices hkve such jurisdiction under local Acts. By means 
 of inquiries from the local officials, the Author lias ascer- 
 tained that the jurisdiction exists in Birmingham, Liver- 
 pool, Manchester and Sheffield. 
 
 The Court is not bound to make an order of restitution, 
 and there is no right of appeal against its refusal to do so. 
 (Bentley v. Yilmont.) 
 
 An order of restitution is enforced according to the 
 practice of the particular Court by which it is made. 
 
 For further details as to orders of restitution, see Arch- 
 bold's Pleading, &o. in Criminal Cases. 
 
 2 (2) 
 
20 THE HlRE-rURCHASE SYSTEM. 
 
 Even though an order of restitution is granted or refused, 
 an action in detinue or for conversion may still be brought 
 in respect of the goods. {Scatter good v. Sylvester ; Dover 
 V. Child; Midland Bailu-aij Co. v. Martin; Ex parte 
 Davison; Leicester v. Cherryman; Banson v. Piatt.) 
 
 As to obtaining .an order for the delivery up of goods 
 which have come into the possession of the police, see The 
 Police Property Act, 1897, and Bullock v. Dunlap and 
 Winter v. Bancks. 
 
 Matters preliminary to Signature of Agreement. 
 
 Before considering, in detail, the various provisions of a 
 hire-purchase agreement, we will deal with a few points ta 
 which it is desirable attention should be directed. 
 
 Status or Credit of proposed Hirer. 
 
 When making inquiries as to the stability of an intending 
 hirer, an owner should bear in m;ind the provisions of The 
 Statute of Frauds Amendment Act, 1828 (formerly known 
 as Lord Tenterden's Act), under sect. 6 of which a misre- 
 presentation by one jjerson as to another person's credit, in 
 order to be actionable, must be made in writing, and signed 
 by the person to be charged therewith. 
 
 A company is a "person" within the above section 
 {Hirst v. West Biding Union Banking Co.), and, appa- 
 rently, in order to make such company liable, its seal must 
 be affixed to the representation. {Bishop v. Balkis Con- 
 solidated Co.) 
 
 A representation made by one partner of a firm as to the 
 stability of the firm is a representation as to the credit of 
 another person within the section, even though it includes a 
 representation as to his own credit as a partner {Devaux v. 
 Steinkeller), and one partner, signing in the name of, and 
 by the express authority of, his firm, will make himself only 
 liable. {Mason v. Williams.) 
 
NATURE AND GENERAL INCIDENTS. 21 
 
 . • Por further oases upon the section, see Tatton v. Wade 
 (a case of hiring furniture); Lyde v. Barnard; Swann v. 
 Phillips; Clydesdale Bank v. Paton ; and Parsons v. 
 Barclay. 
 
 Goods must be Hired for a Legal Purpose. 
 
 If goods are sold or hired for an illegal or immoral 
 purpose, the price or hire cannot be recovered. (Pearce v. 
 Brooks; Vpfill v. Wright.) 
 
 In Pessers v. Catt, to an action for rent under an agree- 
 ment for the hire of certain automatic penny-in-the-slot 
 machines, the defendant pleaded that the use of the machines 
 by the public constituted an unlawful game, and that the 
 plaintiffs, in order to induce him to enter into the agreement, 
 had represented to him that the use of the machines con- 
 stituted a game of skill and not a game of chance. It was 
 held that the game was not unlawful, and therefore the 
 plaintiffs were entitled to judgment. 
 
 When goods have been delivered for an illegal purpose, 
 the person delivering them may repudiate the illegal 
 purpose at any time before it has been carried out, and 
 recover back his goods. {Taylor v. Bowers.) 
 
 Where the person invoking the aid of the Court is himself 
 implicated in the illegality, the Court must not allow itself 
 to be made an instrument to enforce an illegal agreement, 
 but must take the objection itself, even though the defendant 
 has not pleaded the illegality. (In re Robinson's Settle- 
 ment; North-Western Salt Co. v. Electrolytic Alkali Co.; 
 Societe des Hotels v. Hawker.) 
 
 The maxim, In pari delicto potior est conditio possidentis, 
 is applicable as a defence in an action of detinue. (Taylor 
 V. Chester ; Gordon v. Chief Commissioner.) 
 
 Fitness of Goods. 
 
 The rules as to the warranty of the quality, condition, or 
 fitness of goods, implied in a contract for sale or hire, are 
 
22 THE HIKK-PUKCHASE SYSTEM. 
 
 closely analogous, and the provisions oJ: The Sale of Goods 
 Act, 1893, on these points should be borne in mind, 
 
 Under sect. 14 of The Sale of Goods Act, where existing 
 specific goods are not expressly supplied for a particular 
 purpose, there is no implied warranty or condition as to the 
 quality or fitness for any pai'ticular purpose of goods 
 supplied under a contract of sale. (And see Sutton v. 
 Temple.) 
 
 Similarly, when a person hires a specific thing, there is no 
 implied warranty that it shall be fit for use; and if the letter 
 is not aware of defects which actually exist, the hirer cannot 
 recover on the ground of misrepresentation. (Robertson v. 
 Amazon Tug Co. ; Heilbut r. Bucldeton.) 
 
 But where, under a contract of sale, the buyer, expressly 
 or by implication, makes known to the seller the particular 
 purpose for which the goods are required (of which verbal 
 evidence can be given (Gillespie v. Cheney)), so as to show 
 that the buyer relies on the seller's skill or judgment, and 
 the goods are of a description which it is in the course of 
 the seller's business to, supply (whether he be the manufac- 
 turer or not), then, under sect. 14 (1) of The Sale of Goods 
 ^\.ct, there is an implied condition (which is absolute and 
 extends to latent defects (Randall v. Neivson), the doctrine 
 as to latent defects laid down in Redhead v. Midland Rail- 
 loay Co. not extending to the sale of goods) that the goods 
 shall be reasonably fit for such purpose; provided that in 
 the case of a contract for the sale of a specific article under 
 its patent or other trade name, there is no implied condition 
 as to its fitness for any particular purpose. (As to this 
 proviso, see Ollivant v. Bayley and Bristol Tramways v. 
 Fiat Motors.) 
 
 The rule is the same in the case of goods let on hire for a 
 specific purpose made known to the letter. (Hyman v. Nye ; 
 Yogan v. Oulton; Bentley v. Metcalfe; The West Cock; 
 Dare v. Bognor. And see Pessers v. Catt, cited in the last 
 section.) 
 
 In the case of a breach of warranty on a sale of goods, the 
 
NATURE AND GENERAL INCIDENTS. 26 
 
 buyer may, under sect. 53 of The Sale of Goods Act, 1893, 
 set up as a defence against the seller the breach of warranty 
 in diminution or extinction of the price, and counterclaim 
 or bring a sepai'ate action for any further damage he may 
 have sustained; or he may pay the full price and bring an 
 action for the whole of his damage. (Davis v. Hedges; 
 Bowe V. Crossley. See also British W estinghouse, dc. v. 
 Underground, rfc. and Cointat v. Myham.) 
 
 \ similar course may be adopted in the case of a breach 
 of warranty in respect of goods hired. {Sutton v. Temple.) 
 
 Even when a chattel is lent gratuitously for beneficial use 
 by the borrower, it is the duty of the lender to communicate 
 to the borrower any defect in it with reference to the use 
 for which the loan is made, of which the lender is aware, 
 and, if he wilfully or by gross negligence omits to do so, 
 he is liable for injury, resulting from such defect, to the 
 borrower while using the chattel {Bldkemore or Blackmore 
 V. Bristol and Exeter Raihvay Co. ; Coughlin v. Gillison); 
 and where the bailment is not gratuitous, i.e., where it is for 
 hire, a higher degree of care, on the part of the bailor, is 
 required. (F arrant v. Barnes.) 
 
 An owner owes a duty, independent of contract, not only 
 to the person who contracts to hire, but to all those persons 
 for whose use a chattel is supplied. (White v. Steadman, 
 distinguished in Bates v. Batey.) 
 
 A hire-purchase agreement should expressly negative any 
 implied warranty as to fitness of goods. 
 
 Pistols. 
 
 The provisions of The Pistols Act, 1903, apply to a pistol 
 let on hire. As to what is a pistol, see Bryson v. Gamage ; 
 and as to the requirements to be observed by the owner and 
 hirer, see Matthews v. Gray. 
 
; 24 THE HIRE-PURCHASE SYSTEM. 
 
 Agreement to be in Writing. 
 
 It is advisable that both a hire-purchase agreement and a 
 simple hiring agreement should be in writing. Generally, 
 a written agreement is necessary, as will appear from the 
 following notes; but it may be observed that a hirer can 
 confer a good title on a third party, even if the hire-purchase 
 agreement is not in writing, if, by such agreement, the hirer 
 has " agreed to buy goods " within the meaning of The 
 Factors Act or The Sale of Goods Act. (Hugill v. Masker.) 
 
 It is unusual for a hire-purchase agreement to be in the 
 form of a contract for sale and purchase, but if an agreement 
 does amount to such a contract (as it is sometimes made to do 
 where the owner does not wish to have his goods returned, 
 and is willing to run the risk of the hirer disposing of them), 
 sect. 4 of The Sale of Goods Act, 1893 (which replaces 
 sect. 17 of The Statute of Frauds), will apply to it when 
 the value of the goods is £10 or upwards. 
 
 A hire-purchase agreement will generally be within sect. 4 
 of The Statute of Frauds, which provides that no action 
 shall be brought whereby to charge any person upon any 
 agreement that is not to be performed within the space of 
 one year from the making thereof, unless the agreement 
 iupon which such action shall be brought, or some memo- 
 randum or note thereof, shall be in writing, and signed by 
 the party to be charged therewith, or some other person 
 thereunto by him lawfully authorised. This section applies 
 to a contract for the sale of goods. {Prested Miners, dc. v. 
 Oarner.) 
 
 In Birch v. Liverpool, it was held that a contract, whereby 
 a coachmaker agreed to let a carriage for a term of five 
 [years, in consideration of receiving an annual payment for 
 the use of it, but which, by the custom of the trade, was 
 , determinable at any time within that period upon the pay- 
 ment of a year's hire, was an agreement not to be performed 
 within a year, within the meaning of sect. 4 of The Statute 
 of Frauds, and, as it was not in writing, was not enforce- 
 
NATURE AND GENERAL INCIDENTS. 2-5 
 
 able by action against the hirer. (See also Hanau v. 
 Ehrlich.) 
 
 In Milsom v. Stafford, an agreement for the hire of gas 
 plant for three years, on payment of £50 on delivery and a 
 quarterly rent, was held to be within sect. 4 of The Statute 
 of Frauds. A similar decision was given in Dollar v. ParJc- 
 ington, a case of hiring horses, where the hiring was for a 
 year from the day after that upon which the agreement was 
 made. 
 
 Signature of Agreement. 
 
 As appears from the foregoing, the agreement should be 
 signed by the hirer. It is also desirable that it should be 
 signed by the owner, so as to make (for instance) the option 
 of purchase conferred on the hirer binding upon the owner. 
 But if the agreement is signed by the hirer only, it is bind- 
 ing upon him, unless he signed conditionally upon the owner 
 signing. (^Alderton v. Archer.) 
 
 If an owner brings an action against a hirer on an agree- 
 ment which is signed by the latter only, the plaintiff admits 
 that the agreement is binding on himself. {Baiter v. YorJt- 
 shire Fire, de.) 
 
 Attesting Witness. 
 
 Some documents, such as bills of sale and wills, are re- 
 quired by law to be attested in order to render them vaLi,d, 
 and in such cases it is generally necessary, on a trial, to call 
 the attesting witness in order to prove the document. 
 
 Hiring and hire-purchase agreements are not required by 
 law to be attested, although it is desirable that they should 
 be. Even if such an agreement is attested, it is not 
 necessary to call the attesting witness to prove the hirer's 
 signature, as it is provided by sect. 26 of The Common Law 
 Procedure Act, 1854 (as to civil proceedings), and sect. 7 
 of The Criminal Procedure Act, 1865 (as to criminal pro- 
 ceedings), that it shall not be necessary to prove by the 
 attesting witness any instrument to the validity of; ^hioh 
 
26 THE HIKE-PUKCHASE SYSTEM. 
 
 attestation is not requisite, and such instrument may be 
 proved as if there had been no attesting witness thereto 
 {e.g., by admission, proof of handwriting, &c.)- 
 
 In connection with this point, there should be borne in 
 mind the useful provisions of the County Court 
 Order XVIII., r. 9, as to documents being used in evidence 
 without proof. 
 
 Refusal of Hirer to sign Agreement. 
 
 Having regard to what appears above, under the heading 
 "Agreement to be in Writing," an owner should take care 
 to get the agreement signed before he parts with his goods, 
 as, if the hiring is to extend over more than a year, and the 
 hirer refuses to sign the agreement, any verbal arrangement 
 made between the owner and the hirer cannot (subject to 
 what is stated below) be enforced by action. The fact that 
 there has been part performance hj delivery of the goods 
 will not help the owner {Dollar v. Parkington), for the 
 doctrine of part performance applies only to contracts relat- 
 ing to land {Boy dell v. Drummond ; Britain v. Bossiter); 
 and the owner cannot obtain a declaration that the hirer 
 shall sign an agreement in the terms of the verbal arrange- 
 ment, or obtain specific performance of it. {Prested Miners, 
 d!c. V. Garner.) 
 
 Notwithstanding the fact that the hirer refuses to sign 
 the formal agreement, he can, under sect. 4 of The Statute, 
 of Frauds, be held bound by the terms of it, and have it 
 enforced against him by action, if he has signed some written 
 memorandum or note in which the terms are set out. Thus, 
 correspondence may have taken place upon the matter, and 
 some letter written by the hirer may form a sufficient memo- 
 randum or note. {Jones v. Victoria Graving Dock; lie 
 Hoyle; Griffiths Cycle Corporation v. Humber ; Deivar v. 
 Mintoft.) In the last cited case, a person, who had not 
 signed a contract, wrote letters in which he set out its terms 
 
NATUKE AND GENEKAL INCIDENTS. 27 
 
 but repudiated his liability, and it was held that there was 
 a suiBcieiit memorandum or note in writing. 
 
 The contract, or written memorandum or note oli it, must 
 be in existence at the time the action is brought. {Lucas v. 
 Dixon.) 
 
 It should be noticed that although the section says no 
 action shall be brought, it does not make the verbal agree- 
 ment void. An owner might, therefore, enforce such part of 
 it as could be enforced without resort to legal proceeding's, 
 e.g., he might retake possession of the goods. (Leroux v. 
 Brown; Re Hoyle; Taylor v. G. E. Railway Co.) And 
 although the owner could not sue for hire under the agree- 
 ment, he could, in addition to retaking possession, bring an 
 action for a money claim for the use of the goods equal to 
 the amount which would have been payable for hire if the 
 agreement had been signed, upon the principle of Mavor v. 
 Pyne and Cook v. Moylon. 
 
 Failing the above remedies, the owner might demand the 
 return of the goods and payment for their use, aiid on the 
 demand not being complied with he might bring an action 
 in detinue, adding a claim for damages for the detention of 
 the sroods, which would include a claim for their use. 
 
 Stamps on Hire-Purchase Agreements and other 
 Documents. 
 
 The stamping of all hire-purchase agreements, the matter 
 whereof is "of the value of £5 and upwards, is now regulated 
 by sect. 7 of The Finance Act, 1907, under which such an 
 agreement should be stamped with sixpence if under hand, 
 and with ten shillings if under seal. 
 
 Notwithstanding the principle of County of Durham, dc. 
 Co. V. Commissioners, the Commissioners hold that exemp- 
 tion (1) under the head " Agreement " in the First Schedule 
 to The Stamp Act, 1891, is applicable to hire-purchase 
 agreements under hand, and that consequently such agree- 
 ments are exempt from stamp duty if the total price payable, 
 
28 THE HIRE-PURCHASE SYSTEM. 
 
 inclusive of any sum paid at or before the signing of the 
 agreement, is under £5. 
 
 The Commissioners hold that an agreement for the simple 
 hire of chattels (which, of course, contains no provision for 
 purchase) is, if the hire rent is payable in advance, within 
 ,the words, " Bond, Covenant," &c., in the First Schedule 
 to The Stamp Act, 1891, and is consequently chargeable with 
 the ad valorem duty of 2s. &d. for every £5, and also for 
 any fractional part of £5, of the sum periodically payable. 
 
 If the hire rent reserved in advance by a simple hiring 
 agreement is made payable weekly or monthly, the week or 
 the month is the " stated period " referred to in The Stamp 
 Act, and the stamp duty payable will be 2s. Qd. for every 
 £5 or fractional part of £5 payable each week or month, as 
 the case may be {Clifford v. Commissioners ; National Tele- 
 phone Co. V. Commissioners; County of Durham, dc. Co. 
 V. Commissioners); but if a yearly rent is reserved, payable 
 by monthly or quarterly instalments, ad valorem duty will 
 be payable on such yearly rent. (Lewis v. Commissioners.) 
 
 If the hire rent under an agreement for simple hire is not 
 payable in advance, the document is held by the Commis- 
 sioners to be chargeable under the head " Agreement " with 
 the fixed duty of sixpence if under hand, or ten shillings if 
 under seal; and if such an agreement is under hand only, 
 and the matter thereof is not of the value of £5, the exemp- 
 tion (1) under the head " Agreement " in the First Schedule 
 to The Stamp Act, 1891, applies. 
 
 The fact that a guarantor joins in a hire-purchase or 
 simple hiring agreement does not make it necessary to place 
 an additional stamp on the agreement, but if a guarantee is 
 given by a separate document this must be stamped, with 
 sixpence or ten shillings, according as to whether it is under 
 hand only or under seal. {Price v. Thomas; Wharton v. 
 Walton.) 
 
 If an agreement under seal contains collateral covenants, 
 a further duty of ten shillings will be payable. 
 
 The duty of sixpence upon an agreement may be denoted 
 
NATURE AND GENERAL INCIDENTS. 20 
 
 by one adhesive (postage) stamp, or by several adhesive 
 stamps making up the amount, and such stamp or stamps 
 must be cancelled by the person by whom the agreement is 
 first signed. The ten shilling or ad valorem stamp must be 
 impressed at the stamp office. 
 
 Agreements requiring sixpenny stamps can be stamped 
 at the stamp office within fourteen days of signature, with- 
 out penalty, and those requiring stamps of ten shillings, or 
 ad valorem stamps, within thirty days. 
 
 In civil proceedings an instrument requiring a stamp must 
 be properly stamped to be received in evidence, or the amount' 
 of the stamp and penalties must be paid, but in criminal 
 proceedings every instrument liable to stamp duty is admis- 
 sible in evidence, although it may not bear the stamp 
 required by law. This is the effect of sect. 14, sub-sects. 1 
 and 4 of The Stamp Act, 1891, under which it is the duty 
 of the judge to take notice as to the omission or insufficiency 
 of the stamp, whereas, under the previous Stamp Act, it was., 
 for the officer whose duty it was to read the document to call 
 the attention of the judge to the fact. 
 
 An unstamped or insufficiently stamped document may be 
 given in evidence to prove a collateral fact, as, for instance, 
 to show that the transaction with which it is connected is a 
 fraud. {Holmes v. Sixsmith.) 
 
 It is to be observed that when a document lias to be 
 stamped, under the section above quoted, the amount of the 
 stamp will, according to that section, be that which would 
 have been required by the Act in force at the date of execu- 
 tion, and not that required by the Act in force at the time 
 of stamping. 
 
 By Order XXXIX. r. 8 of the Rules of the Supreme 
 Court, a new trial shall not be granted by reason of the 
 ruKng of any judge that the stamp upon any document is 
 sufficient, or that the document does not require a stamp, 
 and in Blewitt v. Tritton it was held that no appeal lies 
 against the ruling of a judge at the trial, whether with ox' 
 
aO THE HIRE-PUKCHASK SYSTEM. 
 
 without a jury, as to the sufficiency of the stamping of a 
 document. 
 
 It was also held in Mander v. Ridgway that an appeal 
 does not lie from the ruling of a County Court judge that 
 a docurnent tendered in evidence at the trial is sufficiently 
 stamped. (See also Lowe v. Dorlipg.) 
 
 Parties to Agreement. 
 
 Attention will now be directed to a few points which will 
 he found useful in connection with possible parties to hiring 
 and hire-purchase agreements, and such points will be dealt 
 with under the headings of " Companies," " Corporations," 
 " Guarantors," " Infants," and " Married Women.'' 
 
 Companies. 
 
 By sect. 97 of The Companies Clauses Consolidation Act, 
 1845, the directors, or any two of them, may sign a contract 
 on behalf of a company formed under that Act; and by 
 sect. 76 (2) of The Companies (Consolidation) Act, 1908, 
 it is provided, with reference to a company to which that 
 Act applies, that any contract which if made between private 
 persons would be by law required to be in writing, and 
 signed by the parties to be charged therewith, may be made 
 on behalf of the company in writing signed by any person 
 acting under its authority, express or implied, and may in 
 the same manner be varied or discharged. 
 
 The word " person " includes a company in sect. 6 of The 
 Statute of Frauds Amendment Act, 1828 {Hirst v. West 
 'Riding Union Banking Co.), in The Factors Act, 1889, 
 s. 1, sub-s. 6, in The Sale of Goods Act, 1893, unless the 
 contrary intention appears (Interpretation Act, 1889, s. 19), 
 and in a covenant in a lease as to assigning to a respectable 
 and responsible person. {Willmott v. London Road Car- 
 Co.) 
 
 The proper evidence of the constitution of a limited 
 liability company is the original certificate of inoorporatiop. 
 
NATURl-: AND GENKKAL INCIDENTS. 31 
 
 but in ease this is not forthcoming, a certified copy may be 
 obtained under sub-sects. 6 and 7 of sect. 243 of Th6 Com- 
 panies (Consolidation) Act, 1908, and such copy is admis- 
 sible in evidence. 
 
 In the High Court, a company can sue or enter appearance 
 by a solicitor only, and can appear in Court by counsel only. 
 (JRe London County Council, c#c. Arbitration; Scriven v. 
 Jescott.) 
 
 It seems to be a moot question whether, in an action 
 brought in a County Court by a company, the plaint must 
 be issued by a solicitor, and a solicitor or counsel must appear 
 at the hearing. It was so held in a County Court case of 
 Fletcher, Limited v. Atkinson, where a summons for 
 £1 3s. 6d. for goods sold had been issued by an employe of 
 the company. It was objected that the summons was bad 
 as having been irregularly issued, and that the company 
 could appear by solicitor or counsel only. The judge upheld 
 the objections, dismissed the summons, and gave the defen- 
 dant costs on Scale B. The contrary was, however, held in 
 another County Court case — Powell v. Denley. 
 
 By sect. 116 of The Companies (Consolidation) Act, 1908, 
 a document may be served on a company by leaving it at, 
 or sending it by post to, the registered office of the company. 
 This section applies to proceedings both in the High Court 
 and County Court. 
 
 Corporations. 
 
 As a general rule, a contract by a corporation must be, 
 under its common seal. But contracts for carrying out the 
 objects for which the corporation was created, or for the 
 doing of acts very frequently recurring, or too insignificant 
 to be worth the trouble of afiixing the common seal, .are 
 established exceptions. A municipal corporation, when 
 engaged in trading {e.g., in electric light) has the same 
 privileges as regards contracts as a trading company. (yVells 
 V. Eingston-upon-HuU ; Douglass v. Rhyl.) 
 
 It is provided by sect. 3 of The Sale of Goods Act, 1893, 
 
-32 THE HIRE-PURCHASE SYSTEM. 
 
 that nothing in that section (which relates to the formalities 
 of a contract of sale) shall affect the law relating to corpora- 
 tions. 
 
 A document may be served on a corporation by handing 
 it to one of the head officers. (JJoe v. Woodman.) 
 
 An action in detinue can be brought against a corporation 
 {Yarborough v. Bank of England); and so may an action 
 for trespass. (Maund v. Monmouthshire Canal Co.) 
 
 Guarantors. 
 
 A guarantor is frequently provided by a hirer to guarantee" 
 the payment of the rent and the performance of the terms 
 of a hiring or hire-purchase agreement. 
 
 In Shenstonev. Freeman, Darling, J., held that the wordS' 
 " goods comprised in any hire-purchase agreement made by 
 such tenant," in sect. 4 (1) of The Distress Act, 1908, refer 
 to a hire-purchase agreement to which a tenant is a party in 
 some way, and, consequently, when a hire-purchase agree- 
 ment is entered into with the wife of a tenant, and the latter 
 guarantees the hire rent, it is desirable for the guarantee to- 
 be given by a separate document. 
 
 By sect. 4 of The Statute of Frauds, which applies to an 
 undertaking to be answerable for a tort as well as a breach 
 of contract {Birhmyr v. Darnell; Kirkham v. Marter), a 
 guarantee must be in writing, and signed by the party to be 
 charged therewith, or some person duly authorised by him. 
 (And see Davys v. Buswell.) 
 
 There must be a consideration for a guarantee not under 
 seal, although, under sect. 3 of The Mercantile Law Amend- 
 ment Act, 1857, it need not appear on the face of the- 
 document. Hence, a binding guarantee, not under seal, 
 cannot be obtained from a guarantor after a hiring or hire- 
 purchase agreement has been signed, unless the agreement' 
 was entered into at th6 request of the guarantor, or there is 
 a new consideration given for the guarantee, e.g., forbear- 
 ance to sue for an existing debt. {Oldershaw v. King.) 
 
NATURE AND GENERAL INCIDENTS. 33 
 
 If a person becomes a guarantor for a hirer and, -without 
 the guarantor's concurrence, the agreement is determined 
 and a fresh agreement entered into, the guarantor is not 
 liable for the terms of the new agreement. {Tayleur v. 
 Wildin.) In every case it should be made perfectly clear 
 to a guarantor as to what he is guaranteeing. 
 
 A guarantee, where the consideration is given once for all, 
 is not revocable by the guarantor, nor determined by his 
 death. (In re Grace.) Hence, a guarantee given to the 
 owner of hired goods is irrevocable. 
 
 As to the effect of a document purporting to bo a guarantee 
 fbr an infant, see Harris v. Huntback and Waiithier v. 
 Wilson, cited below, under the heading, " Infants." 
 
 The mere omission on the part of the creditor to enforce 
 his rights against the principal debtor does not discharge 
 the guarantor (Mansfield Union v. Wright); but if the 
 person guaranteed does anything injurious to the guarantor, 
 or inconsistent with his rights, or if he omits to do any act 
 which his duty enjoins him to do, and the omijasion proves 
 injurious to the guarantor, the latter will be discharged. 
 (Watts V. Shuttleivorth ; Durham v. Fowler.) 
 
 When the creditor enters into a binding contract with the 
 principal debtor to give him time, without the assent of the 
 guarantor, and witliout reserving his remedy against the 
 guarantor, such giving of time discharges the guarantor 
 (Clarice v. Birley ; Bolton v. Salmon); but this doctrine does 
 not apply after judgment has been obtained against the 
 principal debtor and the guarantor jointly as co-defendants. 
 (In re Debtor; No. 14 of 1913.) 
 
 Where a guarantee is given for the payment of instal- 
 ments on successive dates, the giving of time by the creditor 
 to the principal in respect of one of such instalments will 
 release the guarantor as to that instalment, but not as to any 
 subsequent instalment. (Croydon Oas Co. v. Dickenson.) 
 
 Where the principal obligation has ceased, the guarantor 
 is released. (Bateson v. Gosling; Commercial Bank of 
 Tasmania v. Jmes; Perry v. National Provincial Bank; 
 
 E. 3 
 
34 , JHK HIRE-PURCHASli SYSTEM. 
 
 Hewison v. Bickeits ; Stacey v. Hill; Hastings Corpora- 
 tion V. Letton.) 
 
 K a transaction, wliieli purports to be a hire-purchase 
 transaction, is in fact a bill of sale transaction, it may be 
 avoided by the hirer as well as by his creditors (Madell v. 
 Thomas), and in such a case a person who has become a 
 guarantor for the performance of the so-called hire-purchase 
 agreement is discharged. {Browne v. Blaine.) 
 
 A guarantor can be sued immediately upon the principal 
 debtor making default, and the creditor is not bound to take 
 proceedings against the principal first. {Price y. Kirlcham.) 
 
 The Statutes of Limitation begin to run, in favour of a 
 guarantor, from the time of the principal debtor's default l 
 {Humphreys v. Jones.) In the case of a guarantee under 
 hand only, the period of limitation is six years under sect. 3 
 of The Limitation Act, 1623 ; but in the case of a guarantee 
 under seal, the period is twenty years under sect. 3 of The 
 Civil Procedure Act, 1833. {Parr's Banking Co. v. Yates.) 
 The Court rule that acts to be done on a Sunday may bo 
 done on the day on which the offices may next be open has 
 no effect on the operation of the Statutes of Limitation. 
 {Gelmini v. Moriggia.) 
 
 In an action against a guarantor, the amount payable by 
 him cannot be proved by the admissions of the principal, or 
 by a judgment against him. No act of the 23rincipal can 
 enlarge the guarantee or fix the guarantor with any liability 
 other than that which he has really contracted to bear. {Ex 
 parte Young, Re Kitchen.) 
 
 Infants. 
 
 Under The Infants' Relief Act, 1874, an infant is not 
 liable upon a contract, unless it is a beneficial one for neces- 
 saries. The same rule applies to an infant's cheque. 
 {Hutley v. Peacock.) 
 
 Necessaries are defined by sect. 2 of The Sale of Goods 
 Act, 1893. (And see Roberts v. Gray.) 
 
NATURE AND GENERAL INCIDENTS. 35 
 
 Lroods supplied to an iufaiit for trading purposes are not 
 necessaries. {Lowe v. Griffith; Ex parte Jones, Be Jones; 
 Cowern v. Nleld.) 
 
 In Clyde Cycle Co. v. Hargreaccs, it was held that a, 
 racing bicycle might be a necessary for an infant apprentice 
 earning a guinea a week and living with his parents. 
 
 The onus of proving that goods are necessaries is on the^ 
 plaintiff. {iS! ash \ . Inman .) 
 
 If an infant pays for goods which are not necessaries, 
 but which he buys and uses, ho cannot recover back the 
 money. {Hamilton v. Vaughan.) 
 
 An infant is liable for a tort committed by him, which is 
 independent of any contract, but an infant cannot be sued 
 for a tort arising out of a contract, and if a cause of action 
 reallj' arises out of a contract, a plaintiff cannot make an 
 infant liable by bringing an action in the form of an action 
 for a tort. Thus, in Jennings v. Rundall, where an infant 
 hired a mare to ride and injuroLl her by over-riding, it was, 
 held that he could not be made liable for damages upon the 
 contract by an action in tort for negligence, because he had 
 simply exceeded his rights under the contract. But in 
 Burnard v. Haggis, -iA'liore an infant hired a horse for riding, 
 and the plaintiff expressly refused to let it for jumping, but 
 the infant lent it to a friend to use for jumping, and it was 
 thereby killed, it was held that the infant was liable, since 
 the act of the infant was an independent tort. (See also 
 Walley v. Holt.) 
 
 An action of detinue or conversion may be brought against 
 an infant. But if, without any fraud on his part, the infant 
 originallj' obtained the goods under a contract of hiring, he 
 cannot be sued upon the contract. The proceedings against 
 him must be based upon his wrongful detainer or conversion 
 of the goods after the hiring has come to an end. {Mills v. 
 Crraham; R. v. McDonald; Cowern v. Nield.) 
 
 Where an infant, by fraudulently representing that he was 
 of full age, obtained a lease of a furnished house, it was held 
 that the lease must be declared void, possession of the house 
 
 3(2) 
 
36 THE HIRE-PURCHASE SYSTEM. 
 
 and furniture given up, an injunction granted against the 
 infant restraining him from dealing with the furniture, and 
 the infant ordered to pay the costs. {Lcmpriere v. Lange. 
 See also Woolf v. Woolf.) 
 
 Wh^re an infant has wrongfully sold property which he 
 has acquired hy a fraudulent misrepresontation as to his age, 
 he must account for the proceeds to the person whom he has 
 defrauded. (Stocks v. Wilson, followed in Leslie v. Shiell.) 
 
 Although an infant may be held liable on the ground of 
 fraud, yet such liability does not enable a void contract to 
 be enforced against him at law. (Levene v. Brougham; 
 Stocks Y. Wilson; Leslie v. Shiell.) 
 
 A document, which purports to guarantee a debt for which 
 an infant is not liable, is not a guarantee, but is an 
 indemnity, and the so-called guarantor is liable as principal. 
 {Harris v. Huntback; Wauthier v. Wilson.) 
 
 It was held, in E. v. McDonald, that an infant hirer can 
 be convicted of larceny as a bailee, under sect. 3 of The 
 Larceny Act, 1861. 
 
 Married Women. 
 
 When an action of detinue, conversion, or trespass against 
 a married woman is contemplated, it should be borne in mind 
 that, at common law, husband and wife are liable to be sued 
 jointly in respect of a tort committed by the wife during the 
 coverture, and this rule has not been altered by The Married 
 Women's Property Act, 1882, so that although an action of 
 detinue, conversion, or trespass may, under sect. 1, sub- 
 sect. 2, of the Act, be brought against the wife alone, it 
 may also be brought against the husband and wife jointly, 
 {Seroka v. Kattenburg, approved in Earle v. Kingscote.) 
 Separate defences cannot be set up. (Beaumont v. Kaye.) 
 
 If, in an action against husband and wife jointly, the wife 
 dies before judgment, the action abates. If the husband dies 
 before judgment, the action continues against the wife, but 
 the husband's representatives cannot be joined. If, w'hile 
 
NATURE AND GENERAL INCIDENTS. 37 
 
 the action in respect of the tort is pending, and before judg- 
 ment, the marriage is dissolved, or a decree for judicial 
 separation obtained, the husband cannot be made liable 
 {Cuenod v. Leslie), though he probably could be if the decree 
 for judicial separation was obtained by fraud. {Burdett v. 
 Home.) A separation deed has not the same effect as a 
 decree for judicial separation. (Head v. Briscoe; TJtley v. 
 Mitre Publishing Co.) 
 
 In an action against husband and wife jointly, both may 
 be attached for wilful disobedience to a judgment for 
 delivery up of specific chattels. (Be Turnbull.) 
 
 A married woman can, by virtue of sect. 12 of Tiie 
 Married Women's Property Act, 1882, maintain an action 
 of detinue against her husband in respect of her separate 
 property' {Lamer x. Lamer); but a husband cannot bring 
 such an action against his wife. He can only proceed under 
 sect. 17. 
 
 The general Rights, Duties and Obligations of Owners 
 
 and Hirers. 
 
 It is now proposed to enter into a detailed examination of 
 the general position of owners and hirers under their agree- 
 ments, following the order in which the various points will 
 usually arise under the clauses of a hire-purchase agreement. 
 
 Payment of Hire Rent at Owner's Address. 
 
 An undertaking by the hirer to pay the hire rent at the 
 address for the time being of the owner will, in case of the 
 hirer's default, enable the owner to sue in the County Court 
 of the district in which he carries on business. (Northey v. 
 Gidney.) 
 
 Punctual Payment. 
 
 In an agreement the hirer usually undertakes to pay the 
 rent punctually, and power is given to the owner to resume 
 
38 THE HIRE-PURCHASE SYSTEM. 
 
 possession of the chattels if (inter alia) the hirer do not 
 punctually pay the rent, In Leeds, dc. v. Broadbent, it 
 ■\viis held that the word " punctually," in a clause which 
 provided that mortgage moneys should not be called in for 
 three years, " if in the meantime every half-yearly payment 
 of interest shall be punctually paid," did not mean " within 
 a reasonable time," but " on the days named." 
 
 In a tenancy agreement, which contained an option for 
 the tenant to purchase the reversion provided the rent wais 
 " duly " paid, it was held that " duly " did not mean 
 "punctually." (Starkey x. Barton.) 
 
 Payment of Hire Rent in Advance. 
 
 In National Telephone Company v. Griff en, one G-riffen 
 agreed to pay to the National Telephone Company rent in 
 advance for the use of a telephone. The company was t0| 
 have the right to disconnect Griffen, without prejudice to the 
 other conditions of the contract, if he failed to observe the 
 company's rules, or if any sum of money payable by him 
 under the contract was in arrear. Further, the contract was 
 terminable by the company in the event of any sum payable 
 under it being in arrear. Griffen paid the first year's rent 
 in advance, but upon the second falling due he declined to 
 pay in advance for the future. Thereupon the company dis- 
 connected Griffen and claimed to be entitled to recover the 
 full rent payable by him on the first day of the second year, 
 although he had in fact enjoyed the use of the telephone 
 during forty days only of the second year, and it was held, 
 by the King's Bench Division in Ireland, that the company 
 was entitled to recover the second year's rent in full. 
 
 As to the stamp required upon an agreement for simple 
 hire, where the rent is payable in advance, see above, under 
 the heading " Stamps." 
 
NATURK AND GKNEKAL INCIDENTS. 89 
 
 Interest on Hire Rent. 
 
 If so intended, a hiro-purcliaso agrcomeut sliould stipulate 
 that interest shall be paid on hire rent in arrear; but the 
 agreement should provide that such stipulation shall not 
 ptejudiee the right of the owner to retake possession of the 
 goods under an}- power conferred by the agreement. 
 
 The common law rule as to claiming interest is thus stated 
 by Abbott, C. J., in Riggins v. Sargent: — "It is now 
 established, as a general principle, that interest is allowed 
 by law only upon mercantile securities, or in those cases 
 where there has been an express promise to pay interest, or 
 where such promise is to be implied from the usage of trade, 
 or other circumstances." 
 
 The common law rule has been extended by sect. 28 of 
 The Civil Procedure Act, 1833, which enacts that upon all 
 debts or sums certain, payable at a certain time or otherwise, 
 a jury (or a judge when sitting alone: London, C. d D. 
 Railway Co. v. South E. Railway Go.) may, if they think 
 fit, allow interest to a creditor, at a rate not exceeding the 
 current rate of interest, from the time when such debts or 
 sums certain became jaayable, if such debts or sums are 
 payable by virtue of some written instrument at a certain 
 time, or if payable otherwise, then from the time when 
 demand of payment shall have been made in writing, so that 
 such demand gi\'es notice to the debtor that interest will be 
 claimed from the date of the demand until payment; pro- 
 vided that interest shall continue to be payable in all cases 
 in which it was payable at common law. 
 
 Where a demand is necessary under the statute, it must 
 be made before action brought. (Rhymney Raihvay Co. v. 
 Rhymney Iron Co. ; Wilks v. Wood.) 
 
 A printed statement, such as " Five per cent, interest 
 charged on overdue accounts," often seen on billheads, is not 
 a sufficient demand. (Re Lloyd Edwards, distinguished in 
 Re Anglesey.) 
 
40 THE HIRE-PURCHASE SYSTEM. 
 
 Payment by Post. 
 
 When a debtor has to pay money to a creditor he must, as 
 a general rule, go to the creditor and pay him. If the 
 debtor sends a cheque through the post, he does so at his 
 own risk, unless the creditor has actually or impliedly 
 authorised this method of payment, in which case putting a 
 correctly addressed envelope in the post with the cheque 
 amounts to payment, even if the cheque is lost in transit. 
 (Norman v. Eicketts ; Luttges v. Sherwood; Baker v. 
 Lipton, Limited; ThairlwaU v. Great Northern Railway 
 Co.) 
 
 The question whether a creditor has actually or impliedly 
 consented to payment by post is one of evidence, and consent 
 is not to be necessarily inferred fsom the course of previous 
 transactions. (Pennington v. Crossley.) 
 
 An authority to remit by post is determined by the death 
 of the creditor. (Baker v. Lipton, Limited.) 
 
 Cheque sent " in settlement." 
 
 The mere keeping of a cheque sent " in full of all 
 demands" or "in settlement" is not conclusive evidence 
 from which an accord and satisfaction is to be presumed in 
 law; the question whether it has been kept upon the terms 
 upon which it has been sent being one of fact in each parti- 
 cular case. Where creditors, on receipt of debtor's cheque, 
 which was sent " in full of all demands," wrote saying that 
 they took it on account, and had put it to debtor's credit, 
 at the same time enclosing a receipt " on account," and also 
 asking for a cheque for the balance, it was held that there 
 was no accord and satisfaction, and that the creditors were 
 entitled to recover judgment for the balance. (Day v. 
 'McLea. See also Nathan v. Ogdens and Hirachand Punam- 
 chand v. Temple.) 
 
NATURE AND GENERAL INCIDENTS. 41 
 
 Hire Rent to be secured by Bills, &c. 
 
 Sometimes it is provided by a hire-purchase agreement 
 that the hire rent shall be secured by the delivery to the 
 owner of bills of exchange or promissory notes accepted or 
 signed by the hirer. 
 
 In this note it is proposed to consider the position of an 
 owner of hired goods who accepts from the hirer a negotiable 
 instrument — e.g., a bill of exchange, promissory note, or 
 cheque, as a conditional payment, or as collateral security, 
 or as cash. 
 
 By sect. 38 of The Sale of Goods Act, 1893, it is provided 
 that the seller of goods is deemed to be an " unpaid seller " 
 within the meaning of that Act when a bill of exchange or 
 other negotiable instrument has been received as conditional 
 payment, and the condition on which it was received has not 
 been fulfilled by reason of the dishonour of the instrument 
 or otherwise. 
 
 It is a question of fact as to the intention with which a, 
 negotiable instrument is accepted (Goldshede v. Cottrell), 
 but when such an instrument is given in respect of a pre- 
 existing simple contract debt (and the rule seems now to be 
 the same as regards a specialty debt), the jaresumption is that 
 the giving of the instrument is a conditional payment only. 
 It amounts to no more than giving extended credit, postpon- 
 ing the demand for immediate payment, or giving time for 
 the payment on a future day, in consideration of receiving 
 this species of security. (Saper v. W ag staff ; In re London, 
 Birmingham, dc. Bank; Wood v. Murton ; Palmer v. 
 Bramley ; Ex parte A Debtor.) 
 
 The authorities just cited show that the effect of taking a 
 negotiable instrument as a conditional payment is to suspend 
 all the remedies to which the creditor would have been en- 
 titled if he had not taken it, but it does not deprive him of 
 any lien he may possess. 
 
 ' The creditor's remedies are suspended so long as the 
 negotiable instrument is not overdue, or even after it has 
 
42 THE HIRE-PUKCHASE SYSTEM. 
 
 become due, so long as it is outstanding in tlie hands of a 
 third person to whom it has been indorsed for value by the 
 creditor. (Ex parte A Debtor.) 
 
 If the negotiable instrument is dishonoured and is in the 
 hands of the creditor {Davis v. Beilly), payment of the 
 original debt may bo enforced as if the instrument had never 
 been given {Sai/er v. Wagstaff ; In re London, Birming- 
 ham, dr. Bank); but if, through the laches of the creditor, 
 the instrument is rendered worthless, the idebt 'must be treated 
 as having been paid in cash. (Peacock v. Purssell.) 
 
 The practical result of the above seems to be that if an 
 owiTer takes a negotiable instrumfent as conditional payment 
 for arrears under a hire-purchase agreement, he waives the 
 right to seize which the arrears had jireviously given him, 
 and he extends the time for payment. He puts himself in 
 the same position as he would have been in if the arrears 
 had never become due. Hence, during the currency of the 
 negotiable instrument he will not, for instance, be able to 
 sue the hirer, or to retake possession of the goods, or to 
 demand the goods so as to put an end to the apparent 
 possession of the hirer under the order and disposition clause 
 of The Bankruptcy Act or The Distress Act, 1908, and so 
 will run the risk of losing his goods through being deprived 
 of remedies which arrears would have given him. But as 
 the negotiable instrument merely has the effect of extending 
 the time for payment, it A\dll not suspend any remedy which 
 is not based upon non-payment, so that if the hiring is de- 
 termined through the hirer selling or pledging the goods, or 
 through execution being levied, or through some other breach 
 of the agreement having nothing to do with the arrears, the 
 owner laaj claim the goods on these grounds, because he 
 could have done so even if no arrears had ever existed. 
 
 The. position is the same even if all the payments have 
 becomedue and are in arrear, and the owner takes a negoti- 
 able instrument for the total amount. 
 
 If all the payments are in arrear (being in fact the whole 
 of the purchase-money of the goods), the hirer is liable for 
 
NATURE AND GENERAL INCIDENTS. 4;i 
 
 and could be compelled to pay tlic amount, but this does jiot 
 (as at first siglit might be supposed) make him a person who 
 has "bought or agreed to buy goods " within the meaning 
 of sect. 9 of The Factors Act, 1889, or sect. 25 (2) of The 
 Sale of Goods Act, 1893. In order that those sections may 
 apply, a person must first enter into an agreement to buy, 
 and then obtain possession of goods under it. It is not 
 sufficient for a hirer to enter into a contract which is not an 
 agreement to buy, and whilst in possession of the goods to 
 let the payments get into arrear, and so become liable to pay 
 the full purchase-money. In other words, the agreement 
 contemplated by the sections above referred to must be an 
 agreement to buy when it is entered into. {Kelhy \. 
 Matthews.) 
 
 If a negotiable instrument is given as a collateral security 
 (and the agreement should provide for this), it does not 
 suspend the remedies (Bramwell v. Eglington) unless, 
 through the laches of the creditor, it is rendered worthless, 
 in which case it is to be treated as a cash pajancnt . (Peacock 
 V. Purssell.) 
 
 If, at the time of receiving a negotiable instrument, the 
 owner agrees to accept it as cash, and to take upon himself 
 the risk of the instrument being paid, or if, from the conduct 
 of the owner or the special circumstances of the case, such 
 an agreement is legally implied, then the debt is paid, and 
 the owner loses all his remedies in respect of the original 
 claim for which he takes the instrument. (Sayer v. 
 Wagstaff.) 
 
 Waiver of Default. 
 
 There does not appear to be any case reported as to the 
 effect of an owner accepting payment of rent becoming due 
 after he has become entitled to retake possession of the 
 goods through default of the hirer before such acceptance. 
 By analogy to the rule that if a landlord, with knowledge 
 of the facts upon which his right arises, receives from' a 
 
44 THE HIRE-PURCHASE SYSTEM. 
 
 tenant rent which has becomle duie after a forfeiture, he 
 thereby waives the forfeiture (see Davenport v. The Queen ; 
 Croft V. Lumley ; and Matthews v. Smalhvood), it would 
 seem that an owner would, in similar circumstances, waive 
 his right to seize the goods; but the acceptance of rent is no 
 waiver of a continuing breach of agreement. (Doe d. Baker 
 V. Jones; Penton v. Barnett.) 
 
 It was held in Keith, Prowse d Co. v. National Tele- 
 phone Co. that the demand and acceptance of rent, due sub- 
 sequent to a notice to determine a tenancy of chattels, is a 
 waiver of the notice. 
 
 Meaning of "Month." 
 
 The primary meaning of the word "month" is " lupar 
 month," as well in mercantile or commercial documents aa 
 in ordinary contracts. {Bruner v. Moore.) 
 
 By sect. 3 of The Interpretation Act, 1889, in every Act 
 passed after the year 1850 the expression "month" shall 
 mean "calendar month" unless the contrary intention 
 appears. 
 
 By sect. 10 (2) of The Sale of Goods Act, 1893, in a 
 contract of sale, " m'onth " means prima facie "calendar 
 month . ' ' 
 
 Power for Hirer to terminate Hiring. 
 
 As explained above, the object of giving the hirer power 
 to terminate the hiring, instead of binding him to complete 
 it and pay the f uU amount required to purchase the goods, is 
 to prevent the hirer becoming a person who has " agreed to 
 b^y goods" within sect. 9 of The Factors Act and sect. 23 
 of The Sale of Goods Act, with power, in fraud of the owner, 
 to transfer the goods with a vaUd title to a third party. 
 
 In a hire-purchase agreejnent it is now usual to provide 
 that the hirer may at any time determine the hiring by 
 delivering up the goods. 
 
NATURE AND GENERAL INCIDENTS. 45 
 
 As long as the hirer has the option of returning the goods, 
 it is only fair that he should undertake to pay some fixed 
 minimum sum in case he returns them when only one or 
 two payments of rent have been made. This will provide 
 some compensation to the owner for having second-hand 
 goods thrown on his hands, and also in respect of his 
 expenses of carriage and delivery. 
 
 The agreement in Relhy v. Mattheivs provided that the 
 hirer might at any time terminate the hiring by delivering 
 up the goods, and this was held sufficient to prevent the hirc- 
 piu-chase agreement amounting to an agreement to buj-. In 
 Leman v. Yorkshire Railway Wagon Co., the hirers were 
 bound to pay the whole of the hire rent, and had no power to 
 determine the hiring by returning the chattels at any time 
 during the hiring. The agreement then provided " That on 
 the due completion of this agreement, and on payment 
 within seven days after the same shall become due of all 
 rents, interest, and other moneys payable hereunder for the 
 full period of five years for each wagon, it is hereby agreed 
 that the said tenants, their executors, administrators, and 
 assigns shall have the option of purchasing all or any of the 
 said wagons for the price or sum of five shillings each." 
 If desired, a hire-purchase agreement may be in this form, 
 as it merely gives the hirer an option to buy within the 
 decision of Helby v. Mattheivs, and does not amount to an 
 agreement on the part of the hirer to buy. This alternative 
 form is not, however, recommended, as it is not looked upon 
 with favour by County Court judges, and an owner who 
 uses it loses the benefit of Lord Macnaghten's defence of the 
 hire-purchase system in Helby v. Mattheivs, where he said: 
 — " The learned counsel for the respondents spoke of dealings 
 of this sort with an air of righteous indignation, as if they 
 were traps for the extravagant and the impecunious — mere 
 devices to tempt improvident people into buying things 
 which they do not want, and for which at the time they 
 cannot pay. I think that is going too far. I do not see why 
 a person fairly solvent and tolerably prudent should not 
 
46 THE HIRE-PURCHASK SYSTEM. 
 
 make himself the owner of a piano, or a carriage, or anything 
 else, by means of periodical j)ayments on such terms as those 
 in question in the present case. The advantages are not all 
 on one side. If the object of desire loses its attraction on 
 closer acquaintance, if faults are developed or defects dis- 
 covered, if a coveted treasure is becoming a burthen and an 
 incumbrance, it is something, surely, to kno'w that the trans- 
 action may be closed at once without further liability, and 
 without the payment of any forfeit." 
 
 Quiet Enjoyment. 
 
 The hirer is, as against the owner, entitled to the peaceable 
 possession and quiet enjoyment of the goods during the 
 hiring, and if, whilst so entitled, the hirer delivers the goods 
 to the owner for a special'purpose, and the owner, after such 
 purpose is satisfied, refuses to return the goods to the hirer, 
 or if in some other manner the owner, during the continuance 
 of the hiring, wrongfully deprives the hirer of the possession 
 of the goods, the hirer may sue the owner in detinue or for 
 conversion. (Roberts v. Wyatt ; Chinery x. Viall.) 
 
 Hirer's Rights against Third Parties. 
 
 A hirer is entitled to bring an action against a third party 
 who interferes with his enjoyment of the chattel hired. 
 (Baynor v. Ghilds.) 
 
 A hirer may, during the hiring, sue for the loss of or 
 injury to a chattel hired caused by a third party, and recover 
 the full Value, even though he is not responsible to the owner 
 for the loss or injury; but the hirer, in such a case, must 
 account to the owner for the latter' s proportion of the 
 damages recovered, and the wrongdoer, having once paid 
 full damages to the hirer, is under no further liability to the 
 owner. {The WirikfieM.) 
 
 An agreement usually provides that the hirer shall return 
 the goods at his own risk and cost, if the hiring is not com- 
 
NATIIKE ANB GENERAL INCIDENTS. 4? 
 
 pletucCaud, in rolorenec to this, it luay be noticed that unless 
 there is a special coutract to the contrary, furniture removers 
 appear to be subject to the same liabilities as common 
 carriers. {Scaife v. Tarrant; Electric Supply Stores v. 
 Gay wood.) 
 
 A carrier is not liable for damage caused through goods 
 handed to him to be carried being improperly j^ickod. 
 (Bichardson v. A'. E. KaUwaij Co. ; Barbour v. S. E. Rail- 
 wny Co. See also Suicliffe v. (ircal ^YeMenl Raihvay.) 
 
 An overcharge made by a carrier, and paid under protest, 
 can be recovered back as money had and received. (London 
 and N W. RaiUtfay Co. r. Ever shed.) 
 
 Duties of Hirer during Hiring. 
 
 By the general law, a hirer is, during the hiring, bound to 
 use the goods for the purposes only for which they were 
 hired, and in a reasonable and proper manner ; he must take 
 ordinary care of themi, i.e., such care as every man of co'mmon 
 prudence, and capable of governing a family, takes of his 
 own concerns. {Coggs v. Bernard; Burnard v. Haggis.) 
 
 If a hirer uses goods negligently or improperly he will be 
 liable for any resulting damage. (Davis v. Garrett ; Royal 
 Exchange Shipping Co. v. Dixon.) 
 
 The mere user of chattels in a manner which is incon- 
 .sistent with the right of the owner, or which is unauthorised 
 by him, may amount tb a conversion. (Mulgrave'v. Ogden ; 
 Philpott V. Kelley.) 
 
 A wilful wrong done by a hirer, as damaging, rendering 
 useless, or destroying goods, is a conversion, although the 
 hirer might not be considered as appropriating the goods to 
 his own use. (Cooper v. Willomatt ; Simmons v. Lilly - 
 stone; Donald "m. Suckling.) 
 
 The hirer must, by the common law, keep' the goods in 
 such a state that, when the time comes for returning them, 
 they are, subject only to the deterioration caused by ordinary 
 wear and tear and reasonable use, in as good condition as 
 
48 THE HIRE-PURCHASE SYSTEM. 
 
 they were in at the date of the commencement of the hiring 
 (Robertson v. A'rmzo7i Tug Co.), having regard to the con- 
 dition of the goods at such date. (Schroder y. Ward.)' 
 
 The hirer is not, in the absence of a special agreement, 
 liable if, through no negligence on his part, it becomes 
 impossible to return the goods in a good condition, or to 
 return the goods at all through their having perished. Thus, 
 the hirer is not answerable for loss by accidental fire, or by 
 robbery; but, in the latter case, a robbery by force must be 
 proved, or, if there has been a secret theft, it must be shown 
 by the hirer that he had taken all such precautions as are 
 ordinarily taken by a prudent man to protect his own pro- 
 perty (Coggs V. Bernard; Longman v. Calini; Cooper v. 
 Barton; Taylor v. Caldwell; Sanderson v. Collins; 
 Cheshire v. Bailey); and where goods are given into the 
 sole custody of a person and accepted by him' as bailee, and 
 they are lost while in his custody, the onus lies upon him to 
 show circumstances negativing negligence on his part. 
 (Reeve v. Palmer ; Phipps v. The New Claridge's Hotel, 
 Imrdted ; The Galileo ; Bullen v . Siimn Electric Engraving 
 Co. ; Wiehe v. Dennis.) 
 
 The responsibility of the hirer to take reasonable care of 
 the goods hired extends to all injuries caused to them by 
 the negligence of his servant, to whom he may have entrusted 
 the care of them', when such servant is acting within the 
 scope of his employment. (Sanderson v. Collins; Cheshire 
 V. Bailey.) 
 
 Any special contract, however, entered into by a hirer, 
 under which he undertakes greater liabilities than would 
 have been imposed upon him by the general law, is, as a rule, 
 valid; and therefore a hirer may, under his contract, be 
 liable for various matters for which he would not be held 
 responsible at common law. (Lilley v. Doubleday ; Ross 
 V. Edwards.) 
 
 An agreement generally makes the hirer undertake to keep 
 the chattels in good and substantial order and repair, and to 
 
NATURE AND GENERAL INCIDENTS. 49 
 
 indemnify the owner against all loss of or damage to the 
 same . 
 
 As to a hirer creating a lien on the goods for repairs, see 
 below under the heading " Liens for Repairs, &c." 
 
 Fire Insurance. 
 The breach of an undertaking by a hirer to insure con- 
 tinues so long as a state of things exists inconsistent with 
 the terms of the undertaking, and a waiver of a breach, bj^ 
 receipt of rent, applies only to A\'hat is past. {Doe v. 
 Gladauin.) 
 
 Rights of Owner during the Hiring. 
 
 Although the owner cannot, whilst the hiring is subsist- 
 ing, bring an action in detinue, or for conversion or trespass, 
 because he is not entitled to the immediate possession of 
 the goods {Gordon v. Harper ; Nyhurg v. Handelaar ; J elks 
 V. IIay%Kird), yet he may bring an action against a third 
 partj' for damages for negligence in respect of the permanent 
 injury done to his reversion. {Hears v. L. ct S. W Rail- 
 way Co.y 
 
 The position of an owner when a distress is threatened or 
 levied on hired goods is discussed in Chapter II. 
 
 If an owner is compelled to paj^ money to a hirer's land- 
 lord, in order to release the goods from' an illegal distress, 
 or other unfounded claim', he may sue the landlord for the 
 recovery thereof, as money had and received under duress of 
 goods {Parker v. Bristol and Exeter Railway Co. ; Oates v. 
 Hudson ; Green v. Duckett), even though the payment Avas 
 not the only course open to the owner to rid himself of the 
 illegal interference with his property {Kanhaya Lai v. 
 Natianal Bank of India); if the goods are lawfully dis- 
 trained for rent, the owner is entitled to redeem' them, and 
 to recover from the hirer the amount paid {Groom v. Bluck) ; 
 if the goods are sold under the distress, the owner may re- 
 cover their value from the hirer. {Exall v. Partridge; 
 Edmunds v. Wallingford.) 
 
 R. 4 
 
60 THE HIRE-PUKCHASE SYSTEM. 
 
 The rights and remfedies of the owner, in reference to 
 liens created bj the hirer, execution issued against the hirer, 
 and the bankruptcy of the hirer, are dealt with in the 
 following sections: — 
 
 Liens for Repairs, &c. 
 
 If the goods are detained hj a third party under a claim' 
 of lien created by the hirer, the latter is liable to the owner 
 for any sum paid to release them . {Johnston v . The Royal 
 Mail Steam Packet Co.; The Orchis.) 
 
 The general rule is that a lien on a chattel can only be 
 acquired through a person who is the owner of the chattel, 
 or has the right to transfer the ownership, or is duly autho- 
 rised to allow a lien to be acquired; but, in Keene v. Thomas, 
 it was held that a hirer, who had obtained a dog-cart under 
 a hire-purchase agreement, had created, in favour of a coach- 
 builder, a lien upon the dog-cart for repairs, and that such 
 lien was valid not only against the hirer, but also against 
 the owner. The decision went on the ground that, by the 
 terms of the agreement, the owner had impliedly authorised 
 the hirer to have the repairs executed. Having regard to 
 this case, an agreemtent should expressly negative any autho- 
 rity for the hirer to create a lien for repairs. (See also 
 Chesham. v. Beresford.) 
 
 Common carriers have a particular lien against all the 
 ■world. (Bushforth v. Hadfield; WalUs v. London and 
 8. W . Railway Co. ; Singer Manufacturing Co. y. London 
 and S. W. Railimy Co.) In the last-cited case, il was held 
 that a railway company had, as against the owners, a lien, 
 for their cloak-room charges, upon a sewing machine 
 deposited by a hirer who had obtained the machine under a 
 hire-purchase agreement, in respect of which there were 
 arrears of hire rent which would have entitled the owners to 
 terminate the hiring. 
 
 A carm'an who undertakes casual jobs and does not ply 
 from one fixed terminus to another, or a furniture remover 
 
NATURE AND GENERAL INCIDKNXS. 51 
 
 who makes a special barg-ain as to each transaction, is not 
 a com-mon carrier. {Brind v. Dale; Scaife v. Tarrant; 
 Electric Supply Stores v. Gat/wood.) The last-cited case 
 related to the carriage o£ hired furniture by a furniture 
 remover. 
 
 An imikeeper has a general lien, against all the loorld, 
 upon all goods brought to the inn by a guest as his goods, or 
 sent to the guest whilst staying at the inn and received by 
 the innkeeper as the goods of the guest. And it makes no 
 difference whether the goods do or do not belong to the guest, 
 or whether the innkeeper knew to whom' they belonged. 
 The law rests simply on the custom of the realm, and the 
 question of the property in the goods is wholly immaterial. 
 
 The innkeeper has also a general lien, against all the 
 world, upon goods which he is not bound to receive, if he 
 takes them' in as the goods of the guest at the request of the 
 latter. {Robins v Gray ; MulUner v. Florence.) 
 
 Where a person hired a piano for six months, or longer if 
 he liked, at los. per m'onth, and took it with other effects to 
 an hotel, where it was placed and used in a room occupied by 
 the hirer and his family, and the hirer left the hotel in debt 
 to the hotel keeper, it was held that the latter was entitled 
 to detain the piano and maintain his lien upon it, as against 
 the person from' whom' it was hired . (Threlfatt V . Boncick . ) 
 
 In Robins v. Graij, a commercial traveller stayed at an 
 inn, and incurred liability for board and lodging, which 
 liability he did not discharge. Whilst he was at the inn 
 his firm sent him several lots of sewing machines for sale. 
 Before the liabilitj' was incurred, the firm' gave express 
 notice to the innkeeper that the machines belonged to them 
 and not to the traveller, but it was held that the innkeeper 
 had a lien upon the machines. 
 
 In Chesham v. Beresford, an innkeeper was held to have 
 a lien on a m'otor-car hired by a guest, both for his charges 
 as innkeeper and also for repairs to the car. 
 
 But where a pianoforte was lent for a temporary purpose 
 to a professional artist whilst staying as a guest at an inn, 
 
 4(2) ■ 
 
52 THE HIRE-PUKCHASE SYSTEM. 
 
 it :was held that as the pianoforte was not sent in as the 
 guest's luggage, but only for the purpose of being used by 
 him while he stayed at the inn, and as it was not offered to 
 the innkeeper under the custom of the realm to be taken in 
 by him in his character of innkeeper, the law relating to 
 innkeepers did not apply and the innkeeper had no lien. 
 (Broadiv'ood v. Granara.) 
 
 In Cunningham v. Philip, the proprietor of a temperance 
 hotel was held to be an innkeeper. 
 
 In an unreported case, which is referred to (but without 
 name) on p. 416 of vol. 40 of the Laiu Journal Newspaper, 
 May 27th, 1905, it was held, by a Divisional Court, that a 
 boarding-house keeper has no lien on a boarder's luggage 
 for an unpaid bill. Such a lien would depend upon custom, 
 and the custom' has not been established . 
 
 A lien is extinguished, and a right to immediate posses- 
 sion of goods is created, by a valid tender {'Ratcliff v. 
 Davies ; Coggs v. Bernard; Martindale v. Smith; Chilton 
 V. Carrington), but in the absence of such a tender a lien is 
 not lost by an excessive deimiand (Chesham v. Beresford). 
 
 Statutory powers of sale to enforce liens have been con- 
 fei'red by sect. 97 of The Railway Clauses Consolidation Act, 
 1845; The Innkeepers Act, 1878; and sects. 492—501 of 
 The Merchant Shipping Act, 1894, but subject to these 
 powers a lien gives no right to sell the goods . If the person 
 claiming the lien does sell, or otherwise wrongfully parts 
 with the goods, he is liable for conversion, and the true owner 
 can recover the goods from the person in whose possession 
 they are, without tendering the amount of the lien. {Legg 
 V. Evans; Thames Ironworks v. Patent Derrick Co.; 
 Mulliner v. Florence.) 
 
 When a chattel is detained from: the owner under a claim 
 of lien, there is no lien for the expenses incurred in keeping 
 and taking care of it. (Somes v. British Empire Shipping 
 Co. ; Great Northern Bailivay v. Siuaffield.) 
 
 Order L. r. 8 (High Court), and Order XTI. r. 7 (County 
 
NATURK AND GENERAL INCIDENTS. .j,i 
 
 Court) provide for payment into Court, by a plaintiff, of 
 the amount claimed in respect of a lien, when a defence of 
 lien is set up. Upon these rules, see Oebriider Naf v. 
 Ploton.) 
 
 As to the jurisdiction of metropolitan and other magis- 
 trates to adjudicate upon liens, see above under the beading 
 " Orders of Kestitution." 
 
 Under Order LVII. (High Court) and Order XXVII. 
 (County Court) relief by way of interpleader ma}' be granted 
 where a person is under liability for any goods or chattels, in 
 respect of which he is, or expects to be, sued by two or more 
 parties. (See hereon the following: — Wilsan v. Anderton; 
 Lee V. Bat/es ; Cheesman v. Exall; Stevenson v. Broivnell; 
 Ex parte Mersey Docks and Harbour Board.) 
 
 As to the position and duty of a bailee, when an adverse 
 claim is made, see the following: — Ex parte Davies, In re 
 Sadler; Biddle v. Bond; Rogers v. Lam'bert ; Ranson v 
 Piatt. 
 
 On an interpleader application, the general rule is that 
 a bond fide applicant is allowed costs, unless he has refused 
 an offer of indemnity. (See notes to Order LVII. r. 15, in 
 The Annual Practice.) 
 
 Execution. 
 
 If hired goods are seized by a sheriff or high bailiff and are 
 about to be sold as the goods of the execution debtor, the 
 true ovsmer may pay mtoney under protest to protect his goods 
 and prevent the sale, and may subsequently bring an action 
 to recover back the money he has so paid. {KanJiaya Lai v. 
 National Bank of India. Compare Parker v. Bristol and 
 Exeter Railway Co.; Oates v. Hudson; and Green v. 
 Duckett.) 
 
 The more usual course, however, is for the owner to give 
 notice of his claim' to the sheriff or high bailiff . 
 
 The foUoAving is a form of notice which should be given 
 
54 THE HIRE-PURCHASE SYSTEM. 
 
 to a sheriff pursuant to Order LVII. r. 16 of the Eules of 
 the Supreme Court: — 
 
 In the High Court of Justice, 19 . B. No. 123. 
 
 King's Bench Division. 
 
 Between A. B. . . . . Plaintiff, 
 
 and 
 
 CD Defendant. 
 
 I, the undersigned [name, address, and business of claimant}, 
 herehy give you notice that under and by virtue of a hire-purchase 
 agreement dated the 1st day of January, 19 , and made between 
 myself, of the one part, and the above-named defendant 0. D., of 
 the other part, I claim the goods, particulars of which are set out 
 in the schedule hereunder written, being the [or, forming part of 
 the] goods which you have seized in execution at [set out in full the 
 address of the premises at which the seizure is made}, under a 
 writ of execution issued in this action against the said defendant 
 C. D. And I give you further notice that I shall proceed against 
 you for any damage which I may sustain in consequence of suoh 
 seizure. 
 
 Dated this day of , 19 . 
 
 [Signature of claimant.} 
 To the Sheriff of 
 his agents and officers. 
 
 [The Schedule above befbeeed to. J 
 
 The following is a form of notice to be given to a high 
 bailiff pursuant to Order XXVII. r. 1 of the County Court 
 Rules: — 
 
 In the County Court of Gloucestershire, No. of Plaint A. 99. 
 
 Holden at Cheltenham. 
 
 Between A. B , . Plaintiff, 
 
 and 
 
 CD Defendant. 
 
 I, the undersigned [name, address, and business of claimant}, 
 hereby give you notice that I claim certain goods and chattels, to 
 wit [specify them, or add: as specified in the schedule hereunder 
 written], taken in execution under process issuing out' of this Court 
 in this action, and that the grounds of my claim are that the said 
 goods and chattels are comprised and included in a hire-purchase 
 agreement dated the 1st day of January, 19 , and made between 
 
NATURE AND GENERAL INCIDENTS. 55 
 
 myself J of the one part, and the above-named defendant 0. D., of 
 the other part. And I give you further notice that I shall make a 
 claim against you for damages sustained by me and arising out of 
 the said execution. 
 
 Dated this day of , 19 . 
 
 \_Signature of claimant.'] 
 
 To the High Bailiff of the Court. 
 
 [The Schedule above kefbhred to. J 
 
 Upon receipt of the claim', tlie sheriff, or high bailiff, will 
 give notice thereof to the execution creditor, who must either 
 admit or dispute the claim, and, in the latter case, the sheriff 
 or high hailifi" will institute interpleader proceedings, as 
 provided by Order LVII. of The Supremfe Court Rules, and 
 Order XXVII. of The County Court Eules. 
 
 At com'mon law, both a sheriff and a high bailiff, even though 
 he acted quite innocently, unless protected by interpleader 
 proceedings, "was liable ^o the owner for conversion, if he 
 sold goods which were in fact not the goods of the judgment 
 debtor, but were goods to the possession of which the owner 
 was entitled at the time of the sale {Jellcs v. Bay ward) 
 even if before the sale the owner had m'ade no claim to the 
 goods, so that interpleader proceedings could not have been 
 instituted, and the purchaser acquired no title to the goods, 
 but was liable to an action in detinue or for conversion at 
 the suit of the owner. {Crane v. Ormero^.) 
 
 The position of sheriffs, high bailiffs, and purchasers from 
 them' has been considerably modified by statute. 
 
 Now, where a claim! is m'ade to goods taken in execution 
 under the process .of the County Court, but the claimant 
 fiails to comply with any of the conditions laid down in 
 sect. 156 of The County Courts Act, 1888, the high bailiff 
 is bound, under that section, to sell the goods and the pur- 
 chaser acquires a Valid titfe to them>. The owner has no 
 right of action against the high bailiff, but, on proof of his 
 title at the time of sa],e {FUnt v. Collins), may, in inter- 
 pleader proceedings, recover the net proceeds of the sale paid 
 into Court. (Goodloclc v. Cousins.) 
 
56 THE HIEE-PURCHASE SYSTEM. 
 
 And, by sect. 15 of The Bankruptcy Act, 1913, it is 
 provided that, as from 1st April, 1914, where goods are 
 sold by a sheriff, high bailiff, or other officer, without any 
 claim to the same having been made, the purchaser acquires a 
 good title to the goods, and no person is entitled to recover 
 against the sheriff, high bailiff, or other officer, except as 
 provided by The Bankruptcy Acts, 1883 and 1890, for any 
 sale of such goods or for paying over the proceeds thereof, 
 prior to the receipt of a claim to the goods, unless it is proved 
 that the sheriff, high bailiff, or other officer, had notice, or 
 might by making reasonable inquiry liave ascertained, that 
 the goods Avere not the property of the execution debtor. 
 
 By a proviso to the last-mentioned section, it is enacted 
 that notlring in that section shall affect the right of any 
 claimant, wlio may prove that at the time of the sale he had a 
 title to the goods, to anj^ remiedy to which he may be entitled 
 against any person other than the sheriff, high bailiff, or 
 other officer. Henoe, an owner may recover damages from 
 a hirer, and he m'ay proceed to recover from the execution 
 creditor the proceeds of sale which come to the latter' s hands. 
 {Liver Furnishing Co. v. Cross; Comite des Assureurs 
 Maritimes v. Standard Bank of South Africa: Rice v. 
 Reed.) If the proviso to the section were read literally, 
 it would give the owner a right of action in detinue, or for 
 conversion, against the purchaser, but this would be contra- 
 dictory to the earlier part of the section and can hardly be 
 intended. 
 
 As to the construction put upon the words "wearing 
 apparel and bedding of such person or his family, and the 
 tools and implements of his trade, to the value of £5," in 
 sect. 147 of The County Courts Act, 1888, see the decisions 
 on sect. 4 of The Distress Act, 1888, on p. 113, post. 
 
 Under The Electric Lighting Acts, 1882, s. 2o, and 1909, 
 s. 16, electric lighting apparatus let on hire is exempt from 
 execution. 
 
 Fixtures affixed to the freehold cannot be taken in execu- 
 tion. (Elwes V. Maw.) 
 
NATUUE AND GENERAL, INCIDEN'J'S. 57 
 
 On au oxeeutioii against a paAvnbroker, his interest in 
 articles deposited in pledge may be seized and sold. (In re 
 Rolkison.) 
 
 On levying- execution, a sheriff is, under sect. 1 of The 
 Landlord and Tenant Act, 1709, and sect. 67 of The Execu- 
 tion Act, 1844, required to pay the landlord a certain amount 
 of rent, and a similar duty is imposed on a high bailiff by 
 sect. 160 of The County Courts Act, 1888. These sections 
 have been amended by sect. 18 of The Bankruptcy Act, 
 1913. Sect. 16 of The Admiralty Court Act, 1861, also 
 contains provisions ou the same point. 
 
 The goods of a stranger to the action {e.g., goods let on 
 hire to a tenant who is the execution debtor) cannot be sold 
 to satisfy the claims of the landlord under the above sections. 
 (Beard v. Knight; Foulger v. Taylor.) 
 
 Sect. 68 of The National Insurance Act, 1911, when 
 applicable, will suspend an execution during the period men- 
 tioned in that section. 
 
 Bankruptcy of Hirer. 
 
 Practically, the only portion of The Bankruptcy Act, 
 1883, which is of importance to hire-traders is sect. 44, sub- 
 sect. 2 (iii.), known as "the order and disposition clause," 
 under which the property of a bankrupt divisible amongst his 
 creditors shall comprise all goods being, at the commence- 
 ment of the bankruptcy, in the possession, order, or disposi- 
 tion of the bankrupt in his trade or business by the consent 
 and permission of the true owner, under such circumstances 
 that the bankrupt is the reputed owner thereof. 
 
 Under this clause it is possible for the owners of hired 
 goods to lose their property if the hirer becomes bankrupt, 
 but it is important to note that, for the clause to have this 
 effect, the goods must be in the reputed ownership of the 
 bankrupt in his trade or business, so that no hired goods 
 can pass to the trustee in the bankruptcy if the bankrupt 
 does not carry on a trade or business; nor -where he does so. 
 
58 THE HIRE-PURCHASE SYSTEM. 
 
 unless the goods are in his possession, order, or disposition 
 for the purpose of, or in connection with, his trade or busi- 
 ness, the result being that such articles as household furniture 
 "will escape. (Ex parte Nottingham Bank, Be Jenkinson.) 
 
 The question as to what is a trade or business seems to 
 depend upon the circumstances of each particular case. 
 (Eolls V. Miller; Ex parte Sull^y, Re Wallis.) 
 
 A person Avho takes lodgers, but does not provide them 
 Avith board, carries on a "trade or business" within the 
 meaning of the clause. (Re Harrison, Ex parte The Official 
 Receiver.) 
 
 There is now an order and disposition clause in The Dis- 
 tress Act, 1908, which is dealt with fuUj in Chapter II., 
 and as that Act is of mtore practical importance to hire- 
 traders than The Bankruptcy Act, 1883, the bankruptcy 
 decisions showing the general scope and mfeaning of the order 
 and disposition clause, and the m'ethods and grounds by and 
 on which the consent of the true owner to the reputed owner- 
 ship of a bankrupt can be put an end to, are cited in 
 Chapter II. 
 
 Goods which have been seized under a distress for rent 
 are not Tvithin the operation of the order and disposition 
 clause. (Backer v. Chidley.) 
 
 Electric lighting apparatus let on hire is excepted from' 
 the clause by The Electric Lighting Acts, 1882, s. 25, and 
 1909, s. 16. 
 
 The mere fact that the name or initials of the bankrupt, 
 or of the true owner, are placed on the goods, is not in itself 
 conclusive evidence that the goods are, or are not, within 
 the clause. (Idngardv. Messiter ; Watson v. Peache.) 
 
 The clause does not apply to a company in liquidation. 
 (Be Crumelin Viad/uct Works Co. ; Gorringe v. Irwell.) 
 
 Where the true owner of hired goods has lost theim' in 
 consequence of the operation of the clause, he is entitled tO' 
 prove against the bankrupt's estate in respect of his loss 
 (Ex parte Hoviside, Re Button); but sect. 23 of The Bank- 
 
NATURE AND GENERAL INCIDENTS. 59 
 
 niptcy Act, 1913, protects the official receiver or trustee in 
 bankruptcy against any personal liability in certain cases. 
 
 It was held, in Ex parte Ward, He Eastgate, that where 
 goods had been purchased on credit by a debtor with the 
 fraudulent intention of not paying for them', the vendor, on 
 discovering this fact, was entitled to disaffirm' the sale within 
 a reasonable time and retake possession of the goods, al- 
 though he had knowledge of the committal of an act of 
 bankruptcy by the debtor after the purchase; and also that 
 the title of the trustee in bankruptcy to goods which he finds 
 in the bankrupt's possession is subject to the rights of third 
 parties, including the right of the vendors of the goods to 
 disaffirm the contract. And in Tilley v. Bowman it was 
 held that where a contract for the sale of goods is induced by 
 fraud, and the seller elects to rescind, the title to the goods 
 maj^ re-vest in the seller, even although the election is not 
 made until after the date of the receiving order. 
 
 Re-possession of Goods. — Licence to Enter and Seize. 
 
 An agreement should always provide that if the hirer does 
 not punctually pay the hire rent, and in various other con- 
 tingencies, the hiring shall iminediately determine, and that 
 the owner may enter the hirer's premises and retake posses- 
 sion of the goods. 
 
 Various matters in connection with this provision are con- 
 sidered below. 
 
 The operation of the licence to enter and seize will not 
 be suspended or affected by sect. 68 of The National Insur- 
 ance Act, 1911. 
 
 Entering Lodger's Premises. 
 
 Where the hirer is a lodger, an owner would seem to be 
 justified, under a licence, in entering the house where the 
 lodger resides for the purpose of retaking possession of the 
 hired goods, on the principle of the decision in Sheers v. 
 Brooks (cited in the notes to Semayne's Case in Smith's 
 
60 THE HIUE-PUKCHASE SYSTEM. 
 
 Leading Cases) . There it was held that, when the defendant 
 resided in a stranger's house, the bail above might justify 
 entering it in order to seek, for hitm', the outer door being then 
 open; for, said Lord Loughborough, "I see no difference 
 between a house of which he is solely, possessed and a house 
 in which he resides with the consent of another." 
 
 The decision in D«/,er v. Munday, is distinguishable from 
 Sheers v. Brooks, since, in Dyer v. Mimday, the lodger 
 (the hirer) had given up his lodgings and left the premises. 
 Moreover, the lodger had pledged the bedstead with his 
 landlord, and, in consequence of the form of the hire- 
 purchase agreement, it was held that the landlord had a good 
 title to it as against the owner, so that the latter had no 
 right to attempt to retake possession of it. If the owner 
 had been entitled to possession, his proper remiedy would 
 have been an action against the landlord in detinue or for 
 conversion. 
 
 Only a person who is in exclusive possession of premises 
 can bring an action for trespass, so that a m'ere lodger not 
 entitled to the exclusive possession of a particu.lar room' 
 cannot bring such an action; nor, indeed, can any person to 
 whom' the landlord has not parted with all his interest in the 
 possession of a room. (Wriffhfv. Stavert ; Allan v. Liver- 
 pool; Smdth V. Lambeth; Young v. Liverpool.) 
 
 An inner door of a house may be a lodger's outer door. 
 {'American Concentrated Must Co. v. Hendry.) 
 
 Licence to Enter and Seize is Irrevocable. 
 
 A mere licence, not coupled with a grant or an interest, 
 and which " only makes an action lawful which, without it, 
 had been unlawful," even though under seal and given for 
 good consideration, is, according to Wood v. Ijeadbitter, 
 revocable at the will of the licensor. 
 
 It has been further sug'gested (see WilUarriS v. Morris) 
 that a licence is irrevocable only when coupled with a grant 
 or an interest in land effected by deed, and that a licence 
 
NATURE AND GENERAL INCIbENiS. 61 
 
 coupled with an interest in chattels merely is (except under 
 The Bills of Sale Acts) always revocable; but in Wood v. 
 Manley, A^'here a rick of hay on the plaintiff's land was sold 
 to the defendant under conditions of sale to which the 
 plaintiff assented, and which provided that the defendant 
 should be entitled to enter and fetch away the hay, it was 
 held that the licence was irrevocable, and that the defendant 
 was justified in breaking down gates and entering to fetch 
 the hay, although the plaintiff had after the sale locked the 
 gates and forbidden the defendant to enter. 
 
 Wood v. Manley was approved in Wood v. Leadbiiter 
 and also in Taplin v. Florence, in both of which cases it 
 was pointed out that Wood v. Manley was not a case of a 
 mere licence, but of a licence coupled with an interest in 
 personal property. 
 
 "Where an agi'edmfent is entered into for a sufficient con- 
 sideration, and is given for the purpose of securing some 
 benefit to the donee of an authority, the authority is irre- 
 vocable. (Frith V. Frith.) 
 
 In Hwst V. Picture Theatres, Channell, J., expressed the 
 opinion that Wood v Leadbitter is now obsolete; but, 
 whether this is so or not, it seems clear, from the other 
 decisions above referred to, that a licence to enter and seize 
 hired goods is irrevocable. 
 
 The Form of the Licence. 
 
 It is a matter of some importance as to Avliether the 
 licence given to an owner to enter the hirer's premises to 
 seize the goods, when the owner is entitled to retake posses- 
 sion, shomld or should not give authority to break open 
 doors, &c. As a matter of policy, especially in ordinary 
 and small transactions, the authority is best omitted, as it 
 tends to bring discredit upon the hire-purchase system. 
 
 But whilst the authority should by no means be taken as 
 a matter of course, there will occur cases in which it might 
 be fairly and justifiably inserted. Thus, there would seem 
 
62 THE HIKE-PURCHASE SYSTEM. 
 
 to be nothing unreasonable in inserting the authority in a 
 hire-purchase agreement relating to a quantitj^ of valuable 
 machinery to be placed in a factory . 
 
 It is not an unknown thing for the servants of an owner 
 of hired goods, who have succeeded in getting into premises 
 for the purpose of retaking possession of the goods, to find 
 themselves locked in, and, in such a case, reference may use- 
 fully be made to the decision in Pugh v. Griffith, where a 
 sheriff's officer, having' under a ft. fa. lawfully entered a 
 house and seized goods there, and the outer door being locked 
 against him, was held justified in breaking it open to carry 
 away the goods, there being no one whom' he could request 
 to open it. 
 
 Authority to break open Doors, &c. is not Illegal. 
 
 There is nothing illegal in giving an owner of hired 
 goods authority to break open doors, &c., although it is some- 
 times contended, on the strength of 'Edwick v. Hcmkes, that 
 it would be void as being a licence to commit a crime con- 
 trary to The Forcible Entry Act, 1381, which provides " that 
 none from henceforth make any entry into any lands and 
 tenements, but in case where entry is given hj the law : and 
 in such case not with strong hand, nor with multitude of 
 people, but only with peaceable and easy manner: and if 
 any man from henceforth do to the contrary, and thereof be 
 duly convict, he shall be punished by imprisonment of his 
 body." This statute, however, refers only to a forcible entry 
 for the purpose of regaining possession of land (EdwicTc v. 
 HamJces was a case in which a tenant licensed his landlord to 
 enter and evict by, force), and does not apply to an entry, 
 which is made merely for the purpose of effecting a seizure 
 of chattels. Thus, in 1 Hawkins, c. 64, s. 34, it is .said: 
 "It seem's clear that no one can come within the danger of 
 these statutes by a violence offered to another in respect of 
 a way, or such like easement, which is no possession." 
 
 Moreover, in cases relating to bills of sale, clauses autho- 
 
NATURE AND GENERAL INCIDENTS. 63 
 
 rising the grantee, when entitled to seize the goods, to break 
 open outer or inner doors and windows in order to obtain 
 admittance, have been held valid . See Re Morritt, Ex parte 
 Official Receiver; and Lmrdey v. Smmons.) Both these 
 oases were subsequent to Edmc1c\. HawTces ; and in Lwmley 
 v. Simmons, in the Court of Appeal, an argument that a 
 provision for forcible entry was illegal was abandoned in 
 consequence of the previous decision of the Court of Appeal 
 in Re Morritt. 
 
 The hire-purchase agreement in Ex parte Rawlings, Re 
 Davis, contained the following clause: — "If admission to 
 the said dwelling-house cannot be obtained in the usual 
 manner, the lenders and their agents may break open the 
 outer and inner doors and the windows for the purpose of 
 obtaining admission." 
 
 The legality of the authority seems also to be endorsed in 
 Nash V. Lucas, where, in a case of distress, Cockburn, C. J., 
 said: — "If the window be shut, you are doing violence if 
 you open it, where neither directly nor impliedly is the 
 entry made by the licence of the owner of the house." 
 
 When a Forcible Entry may possibly be justified, 
 though not expressly authorised by the Agreement. 
 
 It is provided by sect. 3 of The Larceny Act, 1861, that 
 a bailee of any chattel who shall fraudulently take or con- 
 vert the same to his own use, or the use of any person other 
 than the owner thereof, although he shall not break bulk 
 or otherwise determine the bailment, shall be guilty of 
 larceny. 
 
 It is clear that a hirer who fraudulently converts goods is 
 guilty of larceny under this section. (R. v. McDonald ; 
 Payne v. Wilson.) 
 
 In the cases just cited the hirers had converted the goods 
 by selling them', but a hirer may retain possession of goods 
 and stiU signify his intention of perm'anently depriving the 
 
64 THE HIRE-PURCHASE SYSTEM. 
 
 owner of them, thereby becoming guilty of larceny as a 
 bailee. (Compare B. v. Richmond.) 
 
 Goods as to which a hirer is guilty of larceny as a bailee 
 arc "stolen goods." {Payne v. Wilson.) 
 
 At common law if a chattel is stolen or otherwise wrong- 
 fully taken out of the possession of the owner, and is placed 
 on the wrongdoer's preonises, the true owner is entitled to 
 enter those premises and retake possession of the chattel by 
 force, so long as he does not do any unnecessary damage. 
 (Patrick v. ColericTc ; Blades v. Riggs.) 
 
 The reason for the above rule, as stated in Patrick v. 
 Colerick, is that when a person wrongfully places a chattel 
 upon his own premises he gives the owner an implied 
 licence to enter for the purpose of retaking it. 
 
 In Burn's Justice of the Peace, under the title " Forcible 
 Entry," the following passage occurs: — "It seems certain 
 that even at this day he who is wrongfully dispossessed of 
 his goods may justify, the retaking of them by force from 
 the wrongdoer, if he refuse to redeliver them; for the violence 
 which happens through the resistance of the wrongful 
 possessor, being originally owing to his own fault, gives 
 him' no just cause of complaint, inasmuch as he might have 
 prevented it by doing as he ought." 
 
 Having regard, therefore, to sect. 3 of The Larceny Act,, 
 1861, and the authorities thereon above cited, it would seem, 
 on the principle of Patrick v . Colerick and Blades v . Higgs^ 
 that where a hirer is guilty of larceny as a bailee, and the 
 goods remain in his possession, there is an implied licence 
 to enter the hirer's premises and seize the goods by force, 
 without being liable for any unavoidable damage, just as 
 there is in a case of larceny at com'mon law . 
 
 On the other hand, in an old case from the Year-Books of 
 Edward IV., cited in a note to Webb v. Beavan, it was 
 said: " If a man takes my goods and brings- them upon his 
 own land, I can lawfully enter into his land and take my 
 goods, for the goods came upon his land by his own wrong. 
 It is, however, otherwise if I bail goods to a man, as I cannot 
 
NATURE AND GENEKAL INCIDENTS. 65 
 
 then enter his house and retake them, though the bailment 
 be determined, for they did not conie there by wrong, but 
 by the act of us both." 
 
 It is submitted, however, that the decision in the old case 
 above referred to must now be considered as modified by 
 sect. 3 of The Larceny Act, 1861. 
 
 It should be borne in mind that, as explained in Fenn 
 V. Bittleston, at the time when the old case above mentioned 
 was decided, the law was that if a bailee obtained goods 
 lawfulty and without any fraudulent intent, and, while the 
 bailment subsisted, converted them to his own use, ho was 
 no/, guilty of larceny, because the goods were originally 
 obtained rightfully. 
 
 What Acts do, or do not, amount to Forcible Entries. 
 
 Cases will occur where, although the breaking open of 
 doors, &c. is not expressly or impliedly authorised, the 
 owner's servants have, in defiance of instructions or through 
 ignorance, entered in a manner which is alleged by the hirer 
 to be a forcible entry, and an action for damages is brought 
 against the owner. 
 
 When such a case arises, it will become necessary to con- 
 sider whether what has been done amounts to a forcible 
 entry, and the following notes will be found useful in deter- 
 mining the point. 
 
 It seems clear that an entry, which is not forcible under 
 The Forcible Entry Act, 1381, or is not illegal in a oase 
 of distress (see Nash v. Lucas), or does not amount to a 
 "breaking" in a case of burglary (see Crabtree v. Robin- 
 son), cannot amount to a forcible entry, in the case of an 
 agreement relating to hired goods. 
 
 The following are forcible entries under The ' Forcible 
 Entry Act, 1381 :— 
 
 (a) Breaking windows or outside doors of a house, 
 whether any person be therein or not. (1 Hawk, 
 c. 64.) 
 
 R. 5 
 
, 66 THE HIRE-PUKCHASE SYSTEM. 
 
 . (b) An entry, in the course of which, personal violence is 
 done or threatened. (1 Hawk. c. 64.) 
 
 The following are not forcible entries under The Forcible 
 Entry Act, 1381:— 
 
 (a) Entry by opening an outside door with a key, or by 
 
 lifting a latch or drawing back a bolt, or by getting 
 the door open by a mere trick or artifice. (1 Hawk, 
 c. 64.) 
 
 (b) Entry by an open window. (1 Hawk. c. 64.) 
 
 [The above extracts from Hawkins' Pleas of the 
 Crown will be found in Archbold's Pleading, &c. 
 in Criminal Cases.] 
 
 (c) Breaking open an w^?^er door. {Nemtomf. Karland.) 
 
 (d) Breaking open the gate of a field. {Wood v. 
 
 Mcmleif.) 
 
 (e) An entry which has no other force than such as is im- 
 
 plied by the law in every trespass. (R. v. Smyth.) 
 
 The following methods of entry are not illegal in the case 
 of a distress: — 
 
 (a) Entering by the usual method, e.g., turning a key, 
 
 drawing a bolt, lifting a latch, or puUing out a 
 moveable staple, when a door is fastened merely 
 in order to keep it closed, and not for the purpose of 
 keeping people out. {Ryan v. Shilcock; Nash v. 
 XjUcas.) 
 
 (b) Entry through an open window {Crabtree v. Robin- 
 
 son; Long V. Clarke) or an open skylight {Miller 
 V. Tebb). 
 
 (c) Entry by further opening a partly open window or 
 
 skylight. {Crabtree v. Robinson.) 
 
 (d) Breaking open an inner door, when an entry has been 
 
 effected peaceably. {Long v. Clarke.) [This rule 
 is the same in the case of an execution. {Hutchi- 
 son V. Birch; Lee v. Gansel.)'] 
 
 (e) Climbing over a fence or wall, to get to an open door 
 
 or window. {EMridge v. Stacey ; Long v. 
 ' Clarke.) 
 
NATURE AND GENERAL INCIDENTS. 67 
 
 (f ) Entry by placing a ladder against the wall of a house, 
 
 to get up to and through an open window. {Long 
 V. Clarke.) 
 
 (g) Breaking open an outer door, in the presence of a, 
 
 constable, by a bailiff who has been ejected, in order 
 to regain possession obtained originally peacefully. 
 {Eagleton v. Gutteridge; Bannister v. H;i/de ; 
 Eldridge v. Stacey.) As to what is an effective 
 entry under such circumstances, see Boyd v. 
 Frofaze. 
 (h) Entry through a hole in a wall. (Long v. Clarke.) 
 ■ (i) Any method of entry which does not amount to a 
 trespass, e.g., entry effected by a landlord raising 
 the boards of the floor of a room' which he occu- 
 pied over his tenant. {OouM, v. Bradstock.) 
 
 The following methods of entry are illegal in the case of 
 a distress: — 
 
 (a) Breaking open an outer door or gate of a house, barn, 
 
 stable, or warehouse. {Br aim v. Glenn; Attack 
 V Bramwell; Grunnell 'w. Welch.) [But, under 
 the law of distress, the curtilage is no part of the 
 house. A barn, or outhouse, not connected with a 
 dwelling-house, and a shop which is only used as a 
 place of business, may be broken open in order 
 to levy an execution. {Brdim v. Glenn; Hodder 
 V. WilliamiS.) As to what is "an outer door," 
 see American Concentrated Must Co. v. Hendry.] 
 
 (b) Opening a closed window, whether fastened or not. 
 
 {Hancock v. Austin; Grunnell v. Welch; Nash 
 V. Lucas.) In the last-mentioned case, another 
 person, at the suggestion of the landlord, opened at 
 window and entered the house, and then opened 
 the outer door, through which the landlord entered 
 and distrained. If the door or window has been 
 previously broken open by some trespasser, not in 
 privity with the landlord, the latter may take 
 5(2) 
 
68 THE HIRE-PURCHASE SYSTEM. 
 
 advantage of this means of entry. (Sandon v. 
 
 Jervis.) 
 The foEowing cases cited in Archbold's Pleading;, &c. in 
 Criminal Cases show what acts do not constitute breaking in 
 cases of burglary: — 
 
 (a) If a man leaves his doors or window open and another 
 
 enter therein with intent to commit a felony, it is 
 no burglary. (1 Hale, 551; 3 Co. Inst. (34.) 
 [This principle was adopted in Crabtree v. Robin- 
 son and Lo;ng v. Clarke, cases of distress.] 
 
 (b) If there be an aperture in a cellar window to admit 
 
 light, through which a thief enters in the night, 
 this is not burglary. (E. v. Lewis; R. v. 
 Spriggs.) 
 
 (c) If a window be partly open, but not sufficiently to 
 
 admit a person, the raising of it, so as to admit a 
 person, is not a breaking of the house. (R. v. 
 Smith.) [This principle was adopted in a case of 
 distress in Crabtree v. Robinson.] 
 
 (d) The breaking of a door which was in the outward 
 
 fence of the curtilage of a dwelling-house, and 
 opened, not into any building, but into the yard 
 only, was held not to be a breaking of the dwelling- 
 house. (R. Y. Bennett.) [Under the law of dis- 
 tress, the curtilage is no part of the house. (Long 
 V. Clarke.)] 
 
 Amount of Force Justifiable. 
 
 Care must be taken that no unnecessary force is used in 
 the actual seizure of the goods, as an indictment will lie for 
 taking goods forcibly, if a breach of the peaoe is committed. 
 
 As to the amount of force which may be used in seising 
 the goods, as distinguished from' entering the promises, the 
 summing-up of Lord Eussell of Killowen, L.C..I., in 
 Himmelspring v. The Singer Manufacturing Co. and Hornf, 
 is very valuable. This case is not reported, but a reprint of 
 
NATUliE AND GENERAL INCIDENTS. 69 
 
 the shorthand notes of the summing-up will be found at 
 the end of this chapter. 
 
 If the method of a particular entrj is justifiable, but in 
 the course of making the seizure any unnecessary damage is 
 committed, such as an assault, or injury to furniture, an 
 owner will not become a trespasser ab initio, since he does 
 not enter under an authority given by law, but by the express 
 or implied authority of an individual, and consequently the 
 hirer could only recover any special damage he might sustain 
 in respect of the assault, or injury, to furniture, or as the 
 case might be (and then onlj^ if unnecessary dam^age is done), 
 and he could not recover general damages for trespass merely . 
 {The 8ix Carpenters' Case.y By way of analogy, reference 
 may be made to the following decisions upon The Forcible 
 Entry Act, 1381 (which applies only to a forcible entry for 
 the purpose of recovering possession of land), namely: — 
 Newton v. Karland; Beddall v. Maitland ; and Edivick v 
 HawJces. 
 
 Liability of Owner for Acts of Servants. 
 
 An owner of hired goods is answerable for the wrongful 
 act of his servant committed in the course of and within 
 the scope of the employment (Malcolm, Brmiker d Co. v. 
 Waterhouse; Lloyd v. Grace; Radley v. London County 
 Council), including a wrongful act done by the servant in 
 carrying out an order given by the owner's manager which, 
 as between the owner and the manager, the latter was not 
 authorised to give. (Irmn v. 'Waterloo Taxi-Cab Co., 
 Umited.) And the owner may be liable under such cir- 
 cumstances even if the act of the servant is a criminal act, 
 though, no doubt, an act by a servant may be so criminal 
 that no jury would say that it could have been within the 
 scope of his employment. {Byer v. Munday, a case of re- 
 taking possession of a hired bedstead.) 
 
 The last-quoted case also decided that sect. 45 of The 
 Offences Against the Person Act, 1861, affords no defence 
 
70 THE HIKE-PUKCHASE SYSTEM. 
 
 to a master in a civil action for damages for an assault, in 
 respect of which the servant has been convicted. 
 
 An action on somewhat similar lines, but one in which the 
 defendants were successful, was the important unreported 
 case of Himonelspring v. The Singer Manufacturing Co. 
 and Home, the shorthand notes of the sumtaing-up in which 
 are reprinted at the end of this chapter. 
 
 In Deufar v. Ta&ker, the defendants let out an engine on 
 hire to another person, and they supplied a driver for the 
 engine. They also paid the driver, provided the oil for the 
 engine, and kept it in repair. The evidence showed that the 
 person to whom the engine was hired could direct where the 
 engine should go and what loads it should haul, and that the 
 defendants never knew where the engine was sent to or what 
 it carried. While so hired, the engine, by the negligence of 
 the driver, injured the plaintiff, and it was held by the Court 
 of Appeal that, on the facts, the defendants, who appointed 
 and paid and could dismiss the driver, had control over him 
 at the time of the injury, and were therefore liable to the 
 plaintiff. 
 
 A similar decision was given in M'Cartan v. Belfast Har- 
 bour Com/missioners, distinguishing Donovan v. Laing. 
 Compare also Samson v. Aitchison and Beichardt v. Shard. 
 
 As to a jobMaster's liability in respect of a driver sent 
 with a carriage let out on hire, see Abraham v. Bullock, dis- 
 tinguished in Cheshire v. Bailey. 
 
 It is possible for a man to be the general servant of one 
 person, and, at the same time, the servant of another in respect 
 of a particular matter. (PerMns v. Stead.) 
 
 According to the decision of the Court of Appeal in 
 Harris v. Fiat Motors, a servant may, when the circum- 
 stances .create an absolute necessity, delegate his duty to 
 another person, so as to make the latter in law the servant 
 of the master. The decision of the Divisional Court, in this 
 case, is an authority that an unwarranted though bond fide 
 belief, on the part of the servant, that the necessity exists, is 
 not sufficient to make the master liable, but this point was 
 
NATURE AND GENERAL INCIDENTS. 71 
 
 not considered by the Court of Appeal. (See also Richetts 
 V. Tilling.) 
 
 Upon this subject generally, see the notes to Armory v. 
 Detamirie in Smith's Leading- Cases. 
 
 Lapse of Time no bar to Owner's right to retake 
 Possession. 
 
 The Statute of Limitations is no bar to an owner re- 
 taking possession, at any distance of time, of goods of which 
 another is wrongfully in possession. Thus, in Miller v. Dell, 
 Lord Esher, M. R., said: — " The Statute of Limitations does 
 not give any right to the property, but it only prevents an 
 action from being brought more than six years after the 
 property has been converted. If the real owner of a chattel, 
 of which he had been wrongfully deprived more than six 
 years ago, were, without any assault or trespass, to recover 
 possession of it, the person who had held it for all those 
 years would have no right of action against him, although the 
 real owner's right to sue for it would be barred by The, 
 Statute of Limitations." 
 
 An owner, however, after his right of action is barred by 
 lapse of time, would probably not be entitled to retake hy. 
 force goods of which he has been wrongfully dispossessed. 
 Upon this point the following statement will be found on 
 p. 114 of PoUock & Wright on Possession; — " It would seem 
 that a true owner who peaceably retakes his goods, after 
 being out of possession for however long a time, may hold 
 them' as in his former right against all the world. The effect 
 of a recapture hitf force after the expiration of the time 
 limited for bringing an action seems open to doubt. It, 
 might be held that possession so taken was so wrongful as 
 not to be capable of coalescing with the true title. On the 
 other hand, it might be held that the force was a personal 
 wrong for which an action might be brought, but this mada 
 no difference in the character of the possession once acquired^' 
 and did not prevent the combination of it with the right to 
 
72 THE HIRK-PURCHASE SYSTEM. 
 
 possess — a right not extinguished, though no longer enforce- 
 able by action — ^from' constituting a full revival of property 
 in the true owner. It could not be held lawful, it is con- 
 ceived, to retake one's goods by force after the right of action 
 had been barred. [Compare per Jessel, M. R., in Ex parte 
 Drake, where he says: — ' If there be no right of action, what 
 right have you to recover the goods by force ? '] For the 
 use of force could be justified only after demand of the goods 
 and refusal to deliver them {Blades v. Riggs); but where an 
 action would not lie for the recovery of the goods or recom- 
 pense in damages, the actual possessor would not be bound 
 to redeliver them even on request ; in other Avords, there could 
 not be any lawful demand of possession." 
 
 Payments made, before Seizure, Forfeited. 
 
 An agreement should provide that, on seizure of the goods, 
 all payments previously made by the hirer shall be forfeited . 
 
 It^vas held, in Cramers. Giles, that, after taking posses- 
 sion of the goods, the owner was entitled to retain the amount 
 previously paid, although the hirer tendered the arrears;; 
 and that there was no equity to compel the owner to give 
 up the goods, or to return the money received by him. 
 
 In Heivison v. JRicketts (distinguished in Brooks v. Beirn- 
 stein),. the hire-purchase agreement amounted to a contract 
 on the part of the hirer to buy, but it provided that all money 
 paid thereunder by the hirer should belong to the owner. 
 The owner having seized the goods, it was held that, as the 
 agreement amounted to a contract to buy, the owner could 
 have been compelled, as upon a total failure of considera- 
 tion, to refund the money previously paid by the hirer, if it 
 had not been for the clause which provided that all money 
 paid by the hirer should belong to the owner . 
 
 Where the agreement does not amount to a contract to 
 buy, the owner m'ay, after seizure, retain aE moneys paid by 
 the hirer before the seizure. ' {Brooks v. Beimstein.) 
 
 This power given to owners by hire-purchase agreements 
 
NATURK AND GENERAL INCIDENTS. 73 
 
 has been the cause of mJuch severe criticism' of the hire- 
 purchase system', since, as the result of it, the hirer may be 
 deprived of the goods when, perhaps, he has paid all the in- 
 stalments except the last. For this reason it is desirable, as a 
 matter of policy, that a clause should be inserted in the 
 agreement enabling a hirer to regain possession of his goods, 
 on equitable terms, after they have been seized. 
 
 After Seizure, Owner may sue for Arrears, due 
 before Seizure. 
 
 With a view to clearness, it is desirable for the agreement 
 to provide that, notwithstanding the seizure or return of 
 the goods, the owner may sue for all rent in arrear at the 
 date of the seizure or return. 
 
 If a hire-purchase agreemtent amounts to a contract to 
 buy, and does not expressly give power to sue after seizure 
 for arrears, the owner cannot so sue, because there is a failure 
 of consideration {Ilemson v. Bicketts); but if the agree- 
 ment does not amount to a contract to buy, yet, even in the 
 absence of an express power to sue after seizure for arrears, 
 the owner can so sue, because the hirer will have enjoyed the 
 consideration for the rent. {Brooks v. Beirnstein.) 
 
 Power of Owner to seize Goods after recovering Judg- 
 ment for Balance due under Agreement. 
 
 When a hirer, under a hire-purchase agreement which 
 does not amount to a contract to buy, is in default with the 
 balance of his hire rent, and the owner, instead of regaining 
 possession of the goods, has sued the hirer for arrears of 
 hire (not purchase-money) and has obtained judgment, but 
 the judgment is unsatisfied, a question sometimes arises as 
 to whether the mere fact that judgment has been obtained 
 for tlie balance due under the agreement vests the goods in 
 the hirer and enables him to dispose of them as his own, not- 
 withstanding the proviso usually inserted in hire-purchase 
 
74 THE HIRE-PURCHASE SYSTEM. 
 
 agreements that, until all the payments under the agreement 
 have been made, the goods shaU. remain the sole property of 
 the owner, and the hirer shall not be deemed to have bought 
 or agreed to buy the same, but shall be the bailee thereof 
 only. 
 
 It seems to be clear that, under the above circumstances, the 
 judgment would not vest the property in the goods in the 
 hirer, so as to enable him to deal with them as his own, until 
 the amount due under the judgment (or, at any rate, the 
 amount of the judgment without the costs) has been paid, 
 or unless the owner has taken bankruptcy proceedings against 
 the hirer. 
 
 The above view is based upon Brooks v. Beirnstein, and 
 the analogy to judgments in actions of detinue and con- 
 version, which, if unsatisfied (even if an abortive execution 
 for the value of the goods has been issued), do not change 
 the property in the goods, though, when the full value of 
 the goods has been assessed and recovered as da,mages, the 
 satisfaction of the judgment divests the property in the goods 
 out of the plaintiff and vests it in the defendant. (Brins- 
 mead v. Harrison; Ex parte Drake; In re A Debtor, Ex 
 parte The Petitioning Creditor.) 
 
 The above remarks do not appear to conflict with McEntire 
 V. CrossUy or Bradley v. Ramsay. 
 
 If the above submission is correct, then notwithstanding 
 the judg'ment which he has obtained for arrears of hire, the 
 owner would seem' to have power to seize the goods or to 
 obtain a judgment, either in detinue or for conversion, 
 against a hirer or his transferee, and if such latter judgment 
 is unsatisfied and no bankruptcy proceedings are taken by 
 the owner, it would not prevent the owner seizing the goods. 
 This was actually done in Ex parte Drake. See also the 
 decision in Burroias v. Barnes, cited above under the heading 
 " Pledge by Hirer." 
 
 In order to make the position perfectly clear, it would be 
 advisable for the agreement to provide that, until he has 
 made all his payments, the hirer shall be a bailee only, " not- 
 
NATURE AND GENKKAL INCIDENTS. 75 
 
 withstanding any judgment or judgments which the owner 
 ma.j at any time, or from] time to time, obtain against the 
 hirer for any sum or sum's for the time being owing by the 
 hirer to the owner under this agreement." 
 
 It should be borne in mind that the mere fact that the 
 "v'shole balance of the money payable under the hire-purchase 
 agreement is due, and that the hirer is liable to pay it, does 
 not make the hirer a person who has "agreed to buy." In 
 order that a hirer may become such a person, he must have 
 bound him'self to buy at the moment w'hen he signed the 
 agreement. {Kelhy v. Matthews.) 
 
 Where the goods are on the premises of the hirer's trans- 
 feree, a difficulty might be felt as to entering the latter's 
 premises to seiz-e the goods, on the ground that the owner 
 might become liable to the transferee for trespass. But 
 goods dealt with by a hirer in manner above supposed would 
 be " stolen goods," and having regard to the cases cited above, 
 under the heading " When a Forcible Entry may possibly be 
 Justified, &c.," it would seem' that the transferee would have 
 no remedy against the owner for trespass . 
 
 Remedies of Owner, if Repossession cannot be obtained 
 — Detinue — Conversion. 
 
 If an owner cannot regain possession of his goods by 
 seizing them under the powers conferred by the agreement, 
 and the hirer, or a third party to whom' the hirer may have 
 transferred the goods, is wrongfully detaining them, the 
 owner's remedy is to bring an action for the wrongful deten- 
 tion, commonly known as an action in detinue, claiming the 
 return of the specific goods, or, in the alternative, if the goods 
 cannot be found by the sheriff or high bailiff, the value of the 
 goods, and damages for the detention; or the owner may 
 bring an action for conversion, claiming damages only for 
 being wrongfully deprived of the goods. 
 
76 THE HIliE-PURCHASE SYSTEM. 
 
 Notice before Action. 
 
 Before an action in detinue, or for conversion, is com- 
 menced, a written notice, in the form below, should be served 
 upon the person or persons against whom it is intended to 
 bring the action: — 
 
 Form of Notice. 
 
 To Mr. {name, address, and profession or oooupation of the 
 intended defendant^. 
 
 I, the undersigned, hereby [tKe following words will be used 
 only when the notice is to he served on the hirer: give you 
 notice that in consequence of the breach by you of the terms of 
 the agreement dated the 2nd day of January, 19 , and made 
 between myself, of the one part, and yourself, of the other 
 part, I hereby terminate the hiring created by the said agree- 
 ment [or, if the agreement so provides, the hiring created by 
 the said agreement lias determined], and I hereby] demand of 
 you, and require you to deliver up to the bearer of this notice, 
 immediately upon the service hereof, the following goods and 
 chattels, namely {describe the articles separately and speci- 
 fically, as in a hill of sale — see Abington v. Lipscomhe — or if 
 there is a schedule to the notice, say: the several goods and 
 chattels specified in the schedule hereunder written], which are 
 my property, and ^re now in your possession or under your 
 control, and are wrongfully detained by you. 
 
 And I hereby give you notice that, in default of your deliver- 
 ing up the said goods and chattels in accordance with the 
 requirements of this demand, you will be deemed to have 
 wrongfully converted the same. 
 
 Dated this day of , 19 . 
 
 [The Schedule above eefebeed lo.] 
 
 {Signature and address of owner.] 
 
 When Goods should be sent for, by Owner. 
 
 In the absence of an agreement to the contrary, a person 
 wrongfully detaining goods is not bound to send them to the 
 owner . 
 
NATURE AND GENERAL INCIDENTS. 77 
 
 In order to properly demand the goods, the owner ought 
 either to go himself to the intended defendant, or send a 
 person with a proper authority (such as the form' of notice 
 set out above) to demand and receive the goods, so as to 
 give the person in possession an opportunity of either allow- 
 ing the owner to go on the former's premises to take the 
 goods, or of himself removing them off the premises to some 
 place from which the owner can take them' away. {Thoro- 
 good V. Robinson; Clements v. Flight.) 
 
 To avoid the necessity of the owner having to send for 
 the goods before com'mencing an action against the hirer for 
 detinue or conversion, the agreement should provide that, if 
 the hiring determines, the hirer wiU. deliver up the chattels 
 at the owner's address. 
 
 Method of Service of Notices. 
 
 When a written notice, or notice of demand, has to be 
 served, two copies of the document should be prepared, one 
 copy being served and the other retained. 
 
 On the copy retained should be endorsed particulars of the 
 service in the following form: — 
 
 Served this day of , 19 , at o'clock in the 
 
 fore [or, after] noon, on the within-named A. B. personally, at 
 , a duplicate of the within-written notice. 
 
 \_8ignature, address, and occupation 
 of the person serving the notice.^ 
 
 Care should be taken to see that the actual hour of service 
 is endorsed, as this may turn out to be of particular 
 importance. 
 
 For the purposes of an action in detinue or for conversion, 
 the leaving of a written demand at the intended defendant's 
 house has been held sufficient {Logan v. Houlditch ; com- 
 pare School Board for London v. Peters), but such a course 
 is not recommended. 
 
 If the person, who serves a notice, endorses it, in the usual 
 
78 THE HIRE-PURCHASE SYSTEM. 
 
 course of business, with a memorandum of the service in the 
 above form', and dies before the trial, the endorsement will be 
 admissible to prove the service. There is no difierence in 
 the admissibility of a declaration made by a deceased person, 
 in the course of business or discharge of duty, whether such 
 declaration be in writing or by word of mouth. {Stapylton 
 V. Clough; Bewlet/ v. Atkinson.) 
 
 In order to give evidence of service of a written demand, 
 it is not necessary to give notice to produce the document. 
 {Hammond v. Plank; Doe v. Somerton.) 
 
 If a verbal demand and a demand in writing are made 
 a,t the same time for the purpose of bringing an action, and 
 the one has no reference to the other, evidence of the verbal 
 dem'and is sufficient without the production of the writing. 
 (Smith V. Young.) 
 
 In connection with the question of service, sect. 26 of 
 The Interpretation Act, 1889, m'ay be noted. This section 
 is as follows: — 
 
 " Where an Act passed after the commencement of this Act 
 authorises or requires any document to be served by post, 
 whether the expression ' serve ' or the expression ' give ' or 
 ' send,' or any other expression is used, then, unless the con- 
 trary intention appears, the service shall be deemed to be 
 effected by properly addressing, prepaying, and posting a letter 
 containing the document, and, unless the contrary is proved, to 
 have been effected at the time at which the letter would be 
 delivered in the ordinary course of post." 
 
 If a document is sent by registered post, it may not be 
 delivered as early as it would be if sent by ordinary post, 
 and if this should occur, then, notwithstanding sect. 26 of 
 The Interpretation Act, 1889, service is effected only at the 
 time of delivery in fact. (Bylands, dc.v. Phoenix Co.) 
 
 Prosecution of Hirer. 
 
 When contemplating an action against a hirer who has, 
 during the hiring, sold the goods, it should be borne in mind 
 
NATURE AND GENERAL INCIDENTS. 79 
 
 that bj so doing he has com'mitted larceny as a bailee under 
 sect. 3 of The Larceny Act, 1861, and the goods are stolen 
 goods. {Pa^ne v. Wilsan.) Under these circumstances, the 
 question arises whether the hirer ought to be prosecuted, 
 before an action is brought against him. 
 
 According to the authorities, the owner of stolen goods 
 cannot bring a civil action against the thief before the prose- 
 cution of the latter for the felony, but by what means the 
 performance of the rule is to be enforced we are nowhere 
 informed . 
 
 In Wells V. Abrahams, it was said that a defendant could 
 not in any way raise the objection so as to give himself a 
 right to claim' a stay of the proceedings. In Wellocli v. 
 {^onstantine, it appeared, in the course of the evidence at 
 the trial, that the defendant had committed a felony, and the 
 judge thereupon non-suited the plaintiS; but, in Wells v. 
 Abrahams, it was held that a non-suit under such circum- 
 stances was not correct . 
 
 In Roope v. D'Avigdor, it was held that a statement of 
 claim was not demurrable on the ground that it showed the 
 cause of action to be founded on a felony, and the decision in 
 Midland Counties Insurance Co. v. Smith is to the same 
 effect . 
 
 The rule only applies where the proposed plaintiff is the 
 injured party. (Ex parte Ball; Appleby v. Franklin.) 
 If a prosecution has in fact taken place, the rule is suffi- 
 ciently complied with, without regard to whom the prose- 
 cutor may have been, or the result. (Dudley v. Spittle.) 
 
 The rule only applies where it is intended to bring an 
 action against the guilty party ; and therefore, if it is desired 
 only to bring an action against a third person who has inno- 
 cently obtained goods from^ a liirer, there is no necessity to 
 first prosecute the hirer. (White v. Spettigue; Lee v. 
 Bayes.) But if, in an action against a third party, it is 
 necessary to join the hirer, the latter must first be prosecuted. 
 (Stone V. Marsh.) 
 
80 THE HIRE-PURCHASE SYSTEM. 
 
 Assignment of Owner's Reversionary Interest or 
 Contractual Rights. 
 
 When goods are in tiie possession of a hirer under an agree- 
 ment, the legal position is that the general property in them 
 is vested in the owner, and a qualified or special property is 
 vested in the hirer; the owner possesses what may be 
 described as a reversionary interest in the goods . The owner 
 also possesses contraotu.al rights under the agreement. 
 
 When an owner desires to sell or mortgage the goods to a 
 third party, subject to the hirer's rights, he sometimes does 
 so by assigning his reversionary interest and sometimes by 
 assigning his contractual rights. A transaction of the 
 formler kind is a bill of sale (absolute or otherwise), the latter 
 is not. 
 
 The owner of trade machinery let it out on hire, and then 
 charged his interest in the machinery by way of security, 
 such charge not being registered. It was held that the secu- 
 rity was within The Bills of Sale Acts, and gave the lender 
 of the m'oney no claim either to the machinery or the hire 
 instalments. {Jarvis v. Jarvis.) 
 
 A mortgage of the owner's rights under a bond fide hire- 
 purchase agreement, with power to enforce its provisions, 
 but not assigning the goods comprised therein, being merely 
 an assignment of a chose in action, is not a bill of sale. 
 {Ex parte BawUngs, Re Davis.) 
 
 In Ex parte Mason, Re Isaacson, Isaacson, who carried on 
 business as a 'musical instrument dealer, let a piano to a 
 person namted Yeomans on the hire-purchase system. Sub- 
 sequently, Isaacson by deed assigned the piano and the 
 hire-purchase agreement, and the full benefit and advantage- 
 of the latter, to E . Bishop absolutely, in consideration of the 
 sum of £25 paid to Isaacson by Bishop. The deed purported 
 to be an absolute assignment, but it was admitted that it 
 was merely intended to operate as p, security for the pay- 
 ment of money. It was not registered under The Bills of 
 Sale Acts. Isaacson having become bankrupt, the trustee in 
 
NATUKE AND GENERAL INCIDENTS. 81 
 
 tho bankruptcy applied to the Court for a declaration that 
 the deed was an assignment of personal chattels, and, conse- 
 qucntl}^ a bill of sale— and that it was void on the ground 
 that it was not in the statutory form and had not been regis- 
 tered. The Court of Appeal held that the deed was an 
 assignment of the proprietary rights in the piano, and also 
 an assignment of certain contractual rights under the hire- 
 purchase agreement; that the two things were separate and 
 distinct; that ,The Bills of Sale Acts did not apply to the 
 assignment of the contractual rights, and consequently the 
 assignment of the agreement was valid. 
 
 There should be noted two objections which exist to 
 assigning the contractual rights instead of the reversionary 
 interest. 
 
 The first objection has reference to the possibility of 
 the original owner becoming bankrupt before all the in- 
 stalments to become due under the agreement are paid. On 
 this point reference should be made to Wilmot v. Alton, in 
 which the decision in Ex parte Nicholas, Be Jones, was 
 followed. The effect of these two decisions seems to be that 
 if air assignment, whether absolute or by Avay of mortgage, 
 is made of the right to receive future instalments under an 
 agreement which is executory and not executed on the part 
 of the assignor (so that no part of the consideration can be 
 earned tmless the assignor is able to perform' his part of the 
 agreement), if the assignor becomes bankrupt, the assignee 
 is not entitled under his assignment to receive the instal- 
 ments which become payable under the agreement subse- 
 quently to the commencement of the bankruptcy, but such 
 instalments belong to the trustee in the bankruptcy . In such 
 a case the instalments cannot be said to form' a debt due 
 payable by instalments. 
 
 The second objection to assigning the contractual rights 
 instead of the reversionary interest is based on the decision 
 in Ex parte RawUngs,. Be Davis (following JSrown v. Metro- 
 politan Counties, dc. Society), where it was held that, if the 
 contractual rights only (and not the owner's reversionary 
 
 E. 6 
 
82 THE HIRE-PURCHASE SYSTEM. 
 
 interest in the goods) are assigned, the licence conferred by 
 the agreement to enter and seize the goods on the default of 
 the hirer cannot be assigned; the result being that, in such 
 a case, the assignee would be left to his remedy of an action 
 in detinue in order to obtain possession of the goods . 
 
 It follows that if the assignee wishes to possess the right 
 to enter and seize the goods on the default of the hirer, the 
 general property in them^ — i.e., the reversionary interest of 
 the original owner — must be assigned. When this has been 
 done, all the rights and powers of the original owner will 
 become vested in the assignee. {FrankUn v. Neate.) 
 
 The usual mtethod of transferring the general property in 
 goods is by manual delivery, but this is not possible when 
 they are in the possession of a hirer. Under sect. 1 of The 
 Sale of Goods Act, 1893, the general property will pass under 
 a contract of sale which (subject to the terms of sect. 4 as to 
 goods of the value of £10 or upwards) inay, under sect. 3, be 
 in writing or by word of mouth. In Newlove v. Shrewsbury, 
 the owner of a machine, in the possession of a hirer under a 
 hire-purchase agreement, sold his property in the machine by 
 word of mouth. The most conclusive method, however, of 
 passing the property in the goods would appear to be by a 
 deed assigning the goods subject to the hirer's rights. This 
 deed would amount to an absolute bill of sale. It should 
 be stamped as a conveyance under sect. 41 of The Stamp 
 Act, 1891; and sects. 10 and 11 of The BiUs of Sale Act, 
 1878, as to attestation by a solicitor and registration, should 
 be complied with. 
 
 An owner, by assigning his reversionary interest or con- 
 tractual rights, does not absolve the hirer from further 
 performance of the agreement on his part. (British Waggon 
 Co. V. Lea.) 
 
 As to assignments of contracts generally, see ToUiwst v. 
 Associated C&ment, dc, and Kemp v. Baerselman. 
 
 If, during the continuance of the hiring, the owoier trans- 
 fers his interest in the goods to a third party, the hirer is 
 entitled to have an order or authprity from' the original 
 
NATURE AND GENERAL INCIDENTS. 83 
 
 owner to deliver the goods to the new owner, or a reasonable 
 time to make inquiry and ascertaia the validity of the new 
 owner's claim, before he can be made responsible for the 
 non-delivery of the goods to the latter. (Lee v. Bayes; 
 Hollins V. Fowler.) 
 
 Sale of a Hire-Trader's Business. 
 
 Under sect. 59 (1) of The Stamp Act, 1891, no stamp 
 duty is payable on a sale of goods, wares, or merchandise 
 which pass by manual delivery. Therefore, on the sale of 
 a business, some of the assets of which consist of goods in 
 the possession of hirers, stamp duty wiU not necessarily be 
 payable in respect of those goods. In order, however, to 
 ;secure exemption, the goods must not be assigned to the 
 purchaser, but merely the benefit of the agreements (the 
 general property in the goods — i.e., the reversionary interest 
 of the vendor, will pass by the contract of sale) . When the 
 purchaser of the business gives to the hirers notice in writing 
 -of the assignment, he will be able to sue in his own name for 
 the amounts due under the agreements, by virtue of 
 -sect. 25 (6) of The Judicature Act, 1873. (See Brandts 
 ■d Co. V. Dunlop Rubber Co., and other cases cited in the 
 notes to the section in The Annual Practice.) 
 
 UNREPORTED CASE. 
 
 Himmelspring v. The Singer Manufacturing Company 
 and David Home. 
 
 Heprint of the Transcript of the Shorthand Notes of the 
 Svmtminff-up and Verdict (29 July, 1898). 
 
 The Lord Chief Justice: Gtentlemen, whether this man is rich or 
 poor, he is entitled to have reasonable justice at your hands if these 
 acts of which he complains have heen committed. The question in 
 this case is, have they heen committed? It seems to me that you 
 •ought at once to disregard all this evidence relating to the mother 
 .and the daughter, and that you ought to disregard all acts of 
 
 6 (2). 
 
84 THE HIRE-PURCHASE SYSTEM. 
 
 violence towards anybody, except the Plaintiff. They have nothing- 
 to do with this case, except this, they may hear on the evidence as 
 to what was done to the Plaintiff himself. They have no other 
 relevance at all. Gentlemen, it is a curious thing that this elderly 
 lady, who was said to have been treated in this very rough way, 
 makes no complaint herself. She takes out no summons at the 
 police court, nor does she bring any action in the County Oourt, or 
 elsewhere. Gentlemen, I think you may dismiss that part of the 
 matter from your minds. 
 
 Now, it is not unimportant to see the way this case is brought 
 forward. You will observe that what the Defendants allege is this, 
 that although for some reason or other they say they refused to let 
 a machine out to the Plaintiff, yet he was to all intents and purposes 
 the master of this place; he was the tenant of the premises. The 
 way he puts his case originally, and it is not unimportant to observe 
 it, is this. I-Ie says that on the 28th February the Plaintiff had on 
 his premises a tailor's sewing machine hired by him from the 
 Defendants — The Singer Manufacturing Company — and another 
 machine hired from the said Defendants by his mother, that is to- 
 say, he, the Plaintiff, had these two machines. Therefore, he was 
 the person who treated himself as the manager of this concern, and 
 as the person who was in possession of the machines. He is com- 
 plaining of two things. He is complaining, first of all, that he was 
 assaulted. That is a charge he makes against the Company for the 
 acts of their servants, and against the Defendant Home as being 
 one of the persons who assaulted him. He complains, next, that he 
 was given into custody on a false charge of having committed an 
 assault on Home with a dangerous instrument. The Singer Com- 
 pany say, " Our servants, for whose acts we are responsible, did 
 not assault the Plaintiff, but what happened was something very 
 different." And so far as giving him into custody is concerned, I 
 do not think the learned Counsel for the Plaintiff suggests that the 
 giving into custody could be said to be an act done by Home in his 
 character as servant of the Singer Manufacturing Company'. It is 
 an act for which he is liable, if anybody is. It is an act which he 
 did for the purpose of having the man punished for the assault on 
 himself. Now, just let us see how the matter stands. There were 
 these two machines, one hired in May of 1897, I think, and the othei*- 
 hired in January of 1898, the last one being hired in the mother's 
 name. The agreement in each case was the same, and the state of 
 things on the 21st February is now admittedly that there were 
 arrears due in respect of each machine, which undoubtedly entitled 
 the Singer Company, by their servants, to demand back the delivery 
 of the machine, and to take back that machine if they could do so 
 
NATURE AND GENERAL INCIDENTS. 85 
 
 ■without violating the law. I will tell you what is the limit of their 
 right in a moment. The agreement gives them that right. It 
 appears that on the 21st February, if you accept the evidence of 
 the man Goldstein, and if you accept the evidence of the other 
 gentleman, Mr. Othmer, who gave his evidence, as it seemed to me, 
 very well, that the position of things was that there were arrears in 
 respect of both, although only one week's arrears apparently due in 
 respect of the mother's machine, whereas there was 30s. arrears due 
 in respect of the other machine — 30s. due in respect of one and only 
 one week's arrears in respect of the other. Now, Othmer told you 
 that he had had a difficulty before with this man, and he produced 
 the agreement in respect of that machine. I confess I think this 
 is a very important point as to the amount of credit you ought to 
 give to the Plaintiff. He produces an agreement. He says, " I did 
 not see the Plaintiff put his mark to it, but I had, in 1896, a dealing 
 with the Plaintiff, and he was then going under the name of Israel 
 Jacobs. I had a difficulty about the machine, and I declined to let 
 him have any more." This document was put into the Plaintiff's 
 hands, and he denied that he went by the name of Israel Jacobs, or 
 had any such transaction, at all events so far as he could remember, 
 with Othmer. Now, if you think he is coming and telling you a lie 
 about that, you will consider the weight you ought to give to his 
 testimony on other more important matters. That being the position 
 of things, this gentleman, Mr. Othmer, calls and sees the Plaintiff, 
 and asks him for the money. The Plaintiff does not say or suggest 
 that he is not the person to look to, or that he has nothing to do 
 with these machines, but, on the contrary, he says he will pay some 
 money that afternoon. Othmer says, " I told him if he did not pay 
 we should have to take further steps." Then, he says that on the 
 next day he called again on the Plaintiff, and he was then in bed, 
 and he said he would send some money in an hour or two. Othmer 
 tells you he would have taken 3s. The Plaintiff did not send on 
 that day or the next day, and thereupon Othmer tells you that he 
 gave instructions to Goldstein to take two men with him to go and 
 take possession of the machines unless the money was paid. Gold- 
 stein corroborates him in that, and Goldstein goes accompanied 
 originally by Solomon, Houtman, and Home, and afterwards joined 
 by two more men, Phillips and Meller. On the one hand, the 
 Plaintiff says that the Defendants came there with violence and 
 overpowering force to take the machines. On the other hand, the 
 Defendants suggest that what was meant was this, that if one or 
 two men only had gone, knowing the character of Plaintiff from 
 previous experience, they thought he would be more likely to make 
 violent resistance than if there was a good show to overawe him. 
 
86 THE HIEE-PUECHASE SYSTEM. 
 
 Those are the two ways in which the case is presented to you. Then, 
 we come to this. The men go to the door and knock. Now, they 
 committed no act of trespass in doing that, and I do not understand 
 the learned Counsel for the Plaintiff suggests they did. They com- 
 mitted no act of trespass in going into the house. They had the 
 right under their agreement to go and demand to enter the premises 
 and search for and retake possession of the machines. It does not 
 of course follow from that that they are entitled to use an un- 
 reasonable amount of force. They are not. They are entitled 
 to use a reasonable measure of force. I am not suggesting to you 
 that it would be a reasonable measure of force to knock the man 
 down who has the machine, or to trample on him; I do not suggest 
 that at all; but it is perfectly within their legal right, seeing their 
 machines before them, ,to go and endeavour to take possession of 
 them. Now, how did this row begin ? If the legal right of the 
 Defendants had been recognised by the Plaintiff, he ought to have 
 acquiesced in these machines being taken away; and the real ques- 
 tion you have to ask yourselves, as it seems to me, is this — ^How did 
 all this row come about ? Did it, or did it not, come about by reason 
 of the Plaintiff, or those actually in association with him, resisting 
 and attempting to resist violently the retaking of the machines ? 
 There is another point in connection with this on which I will dwell 
 in a moment. The Plaintiff admits by his cross-examination that 
 when one man went to lay his hand on the machine and took the 
 cover off it he, or those acting with him, immediately proceeded to 
 resist. Then, a little later the other brother came in, and he secured 
 one of these machines and took it into another room. In the mean- 
 while there is a straining for possession going on between the work- 
 man of the Plaintiffs and one of the Defendants' men, during which 
 a window was broken. According to the Plaintiff's account, there 
 was a great deal of violence used to him and his mother; but it is a 
 very remarkable thing that the mother has taken out no summons 
 and made no complaint. The Plaintiff himself has taken out no 
 summons, and did not allege at the time that he was injured on that 
 occasion at all. Then, Gentlemen, something very serious does 
 happen. So far as the charge of imprisonment is concerned, which 
 is a matter which concerns Home alone, it seems to me the view 
 you ought to take of that will depend on whether you believe the 
 Plaintiff's suggestion that this was an accidental injury to this 
 witness's head caused by something the little girl threw, or whether 
 it was deliberately done by the Plaintiff with a pair of scissors. If 
 it was the latter, it was a dastardly act, because up to that time 
 there was no dangerous weapon used, although there may have been 
 violence. Now, what is the truth about that matter, for it is the 
 
NATURE AND GENERAL INCIDENTS. 87 
 
 serious point in the case. It is quite true the learned Magistrate, 
 having heard the whole story, and having heard that a numiber of 
 men went there and a row followed, came to the conclusion probably 
 that one set of men was as bad as the other, and dismissed the 
 summons. But that is not conclusive. The evidence of the Plaintiff 
 is that it was this girl who threw the scissors. She says herself she 
 threw something. Does she say she threw the scissors ? She must 
 have known if it was scissors she threw. Could she have made any 
 mistake about it ? She comes and says in a rather vague and airy 
 fashion that she threw something at somebody. What is the evidence 
 on the other side ? There is the evidence of the man Goldstein, who 
 says that he saw the Plaintiif take the scissors, that Home had his 
 back towards him at the time, and that he, the Plaintiif, struck 
 Home (showing the way it was done) at the back of his head with 
 the scissors, and he points out where the wound was, which is 
 towards the back of the head. Then we had the doctor, whose name 
 I am not quite sure I accurately caught, who said that the wound 
 upon Home's head was a wound which went to the bone. I asked 
 him, as you will remember, looking to the position and direction of 
 the wound, was it one that could have been caused by the flinging 
 of a pair of scissors, and he said, " No, it must have been done by 
 it being used as an instrument to stab." If that is true, it is 
 impossible to have any sympathy with the Plaintiff. 
 
 Gentlemen, that is really the whole of the story, and I will just 
 tell you, shortly, what the points are you will have to consider. 
 First, the Company are liable if their men committed an assault 
 otherwise than in self-defence. The Company are liable for that 
 assault whether committed by Home or anybody else. If you arrive 
 at the conclusion that the row began from the resistance of the 
 Plaintiff and those acting with him, and that the initial assault was 
 not from the Defendants, but was repelling an assault on the part 
 of the Plaintiff, and done in self-defence, there would be no cause 
 of action. 
 
 On the other hand, if there was an assault committed by the 
 Defendants' men the Defendants would be liable for such reasonable 
 damages as you think the Plaintiff ought to get. I have already 
 told you the Company has nothing to do with the imprisonment. 
 That was the independent act of Home for his own defence, or for 
 the punishment of the man who, he says, committed this assault on 
 him. I forgot to add, in connection with the evidence showing the 
 act was committed by the Plaintiff with the scissors, that Home said 
 he was struck from the back, that it was a stab on his head, and 
 that he turned round and saw the scissors in the Plaintiff's hand. 
 
 As regards Home, Horne, like others, would be liable if he com- 
 
88 THE HIRE-PURCHASE SYSTEM. 
 
 iriitted an unjustifiable assault. He would be liable also for giving 
 the man into custody for this assault, unless in fact this was com- 
 mitted upon him. If you arrive at the conclusion that the row was 
 brought about by the Plaintiff and those acting with him, and, 
 above all, if you arrive at the conclusion that Home did receive the 
 wound in the head with this weapon, which undoubtedly is a 
 dangerous one, then I think you ought to have very little trouble in 
 disposing of the whole of this case. Consider it. Gentlemen, and 
 tell me what you think, recollecting the Defendant Home is here 
 counterclaiming for an assault. He says, "The PlaintiflE used a 
 dangerous weapon and cut my head, with the result that I was for 
 a fortnight incapacitated." Therefore, if you think the Plaintiff's 
 case fails you have then to consider whether the Defendant Home 
 succeeds. Of course, it is possible you may think that fail, or you 
 may think both succeed. Consider your verdict. Gentlemen. 
 (The jury consulted in the box for a short time.) 
 
 The Associate: Gentlemen, are you agreed upon your verdict ? 
 
 The Foreman: We are. 
 
 The Associate: Do you find for the Plaintiff, or for the Defen- 
 dants ? 
 
 The Foreman: We find for the Defendants. 
 
 The Lord Chief Justice: Then, Mr. Isaacs, you do not care about 
 this counterclaim, I should think ? 
 
 Mr. Eufus Isaacs: No, my Lord, I do not care about that. 
 
 The Lord Chief Justice: Is not this a kind of case the County 
 Court has jurisdiction in ? 
 
 Mr. Eufus Isaacs: Yes, my Lord, clearly. 
 
 The Lord Chief Justice: I think it is a most reprehensible thing 
 that the Plaintiff was advised to bring such an action as this in the 
 superior Courts. 
 
 Mr. Eufus Isaacs: There will be judgment for the Defendants ? 
 
 The Lord Chief Justice: Yes. In order that there may be no 
 difficulty about taxation, I think the best way is that the counter- 
 claim should be struck out. 
 
 Mr. Eufus Isaacs: If your Lordship pleases. 
 
 The Lord Chief Justice: Of course, it will not affect the costs. 
 
CHAPTER II. 
 
 DISTRESS FOR RENT, RATES, AND TAXES. 
 
 Distress for Rent. 
 
 Formerly, when a landlord was entitled to levy a distress 
 for rent, he might, as a rule, seize and sell aU goods found 
 upon the premises in respect of which the rent was due, even 
 though the goods did not belong to the tenant and were only 
 let on hire to hinal. 
 
 In the present state of the la^v, however, some goods are 
 now absolutely or conditionally privileged from' distress, and 
 others can be protected if certain formalities are observed. 
 
 The most effective method of protecting hired goods from 
 distress is to get the landlord to sign an agreement in the 
 form set out on p. 117, but where this is not feasible the 
 assistance of the common law, statutes, and decided cases 
 must be invoked. 
 
 The Law of Distress Amendment Act, 1908. 
 
 The chief statute now in force, under which goods can 
 be protected from the claims of a landlord, is The LaAV of 
 Distress Ataendment Act, 1908 (hereinafter shortly referred 
 to as " The Distress Act, 1908 "), which (by sect. 8) super- 
 sedes The Lodgers' Goods Protection Act, 1871, wherever 
 and so far as the Act of 1908 is applicable. 
 
 The Distress Act, 1908, does not make the goods to which 
 it applies ipso facto privileged from' distress, but exempts 
 them if the requirements of the Act are coinplied with. 
 
 The assistance of The Distress Act, 1908, can (by sect. 1) 
 be invoked when any superior landlord levies, or authorises 
 
90 THE HIRE-PURCHASE SYSTEM. 
 
 to be levied, a distress on the goods of certain persons, to be 
 presently mentioned, for arrears of rent due to such superior 
 landlord by his immediate tenant. 
 
 Sect. 9 of The Distress Act, 1908, provides that the words 
 "superior landlord" shall be deemed to include a landlord 
 in cases where the goods seized are not those of an under- 
 tenant ov lodger. In Cox v. Harper, it was held that a 
 receiver .appointed in a foreclosure action was a landlord 
 within the meaning of sect. 1 of The Landlord and Tenant 
 Act, 1709, and a similar construction would probably be put 
 upon The Distress Act, 1908. A receiver appointed by a 
 mortgagee in exercise of the powers conferred by the mort- 
 gage, or by sect. 19, sub-sect. 1 (iii.) of The Conveyancing 
 Act, 1881, would also apparently be a superior lajidlord 
 within the meaning of The Distress Act, 1908. 
 
 By sect. 1 of The Distress Act, 1908, the property for 
 which protection can be obtained comprises the furniture, 
 goods, and chattels of: — 
 
 (a) Certain undertenants. 
 
 (b) A lodger. 
 
 (c) Any other person whatsoever, not being a tenant of the 
 
 premises or of any part thereof, and not having any 
 beneficial interest in any tenancy of the premises or of 
 any part thereof. 
 
 But, in consequence of the provisions of sect . 4, protection 
 cannot be obtained for the following property, viz.:- — 
 
 (1) Goods belonging to the husband or wife of the tenant, 
 
 whose rent is in arrear. 
 
 (2) Goods comprised in any bill of sale, hire-purchase agree- 
 
 ment, or settlement made by such tenant. 
 
 (3) Goods in the possession, order, or disposition of such tenant, 
 
 by the consent and permission of the true owner, under 
 such circumstances that such tenant is the reputed owner 
 thereof. 
 
 (4) Live stock to which sect. 29 of The Agricultural Holdings 
 
 Act, 1908, applies. 
 
 (5) Goods of a partner of the immediate tenant. 
 
DISTRESS FOR RENT, RATES A.NO TAXES. 91 
 
 (6) Goods (not being goods of a lodger) npon premises where 
 
 any trade or business is carried on, in whick both the 
 immediate tenant and the undertenant have an interest. 
 
 (7) Goods (not being goods of a lodger) on premises used 
 
 as offices or warehouses, where the owner of the goods 
 neglects for one calendar month after notice (which shall 
 be given in like manner as a notice to quit) to remove 
 the goods and vacate the premises. 
 
 (8) Goods belonging to and in the offices of any company, or 
 
 corporation, on premises, the immediate tenant whereof 
 is a director or officer, or in the employment of such 
 company or corporation. 
 
 The Distress Act, 1908, does not expressly protect the 
 goods of a stranger against a distress for a rent-charge, but 
 it will probably have this effect. Compiare sect. 5 of The 
 Landlord and Tenant Act, 1730; sect. 44 of The Conveyanc- 
 ing Act, 1881; sect. 6 of The Conveyancing Act, 1911; 
 Johnson v. Faulkner ; and Saffery v. Elgood. 
 
 Undertenants. 
 
 An "undertenant" is defined by sect. 1 (a) of The Dis- 
 tress Act, 1908, as foUows: — 
 
 " Any undertenant liable to pay by equal instalments, not 
 less often than every actual or customary quarter of a year, a 
 rent which would return in any whole year the full annual 
 value of the premises (compare Hose v. Watson), or of such 
 part thereof as is comprised in the undertenancy." 
 
 The Act (sect. 5) does not apply to any undertenant where 
 the undertenancy is a breach of any agreement in writing, 
 or, where the undertenancy has been created, under a lease 
 existing on 21st Decelm^ber, 1908, contrary to the wish of the 
 landlord expressed in writing. 
 
 Lodgers. 
 
 Contrary to PhiUips v. Henson, sect. 9 provides that the 
 words "tenant" and "undertenant" do not include a lodger, 
 
92 THE HIRE-PURCHASK SYSTEM. 
 
 but, subject to this, the Act does not define a " lodger." The 
 question is one of fact (Nsss v. Stephenson; Morton v. 
 Palmer), but the person must sleep on the premises {Hea- 
 wood V . Bone) . The onus of proof is on the person asserting 
 that he is a lodger. {Thwaites v. Wilding; Sensing v. 
 Kumsey.) For other cases as to lodgers, see Ex parte 
 Harris; Torres v. Luckett ; Bradley v. BayUs ; Page v. 
 Vallis; Kent v. Fittall. 
 
 Goods of "any other person." 
 
 Sect. 1 (c) of The Distress Act, 1908, as set out above, is 
 an important provision from the point of view of owners of 
 hired goods, but, as lalready mentioned, the provision is quali- 
 fied by sect. 4, under which the eight classes of goods above 
 detailed are not protected. Of these classes, the first three are 
 of the chief importance, and as to these the following points 
 should be noticed: — 
 
 (1) Goods belonging to the husband or wife of the tenant 
 
 whose rent is in arrear. 
 
 Goods let under a hire-purchase agreemeait to the wife 
 of a tenant are not goods belonging to her within the above 
 words. (Shenstone v. Freeman; Rogers v. Martin.) 
 
 As to the privilege from distress of tools of trade, wearing 
 apparel, and bedding, see p. 112. 
 
 (2) Ooods comprised in any . . . hire-purchase agree- 
 
 ment . . . made by such tenant. 
 
 It wiU be observed that goods comprised in a simple hiring 
 agreement are not included in this class. 
 
 Even if goods are comprised in a hire-purchase agreement, 
 they may, under certain circumstances, be protected if they 
 are tools of trade, wearing apparel, or bedding. See p. 112. 
 
 The principle is that the mere fact that goods, which are 
 otherwise privileged from' distress, are included in a hire- 
 
DISTKESS FOK RENT, RATES AND TAXES. 93 
 
 puucliase agreement does not make them liable to distress. 
 Thus, machines which had become fixtures, and as such werQ 
 privileged from distress, were held not to be distrainable, 
 even though thej were in the possession of a tenant under a 
 hire-purchase agreemeiat. (Becker v. Riebold.) 
 
 Although the rule is that, where two statutes passed in the 
 same year appear to be repugnant, the one which is later in 
 date must prevail (British Columbia Electric Railtoay v. 
 Sten-art), and The Distress Act, 1908, was passed after The 
 Agricultural Holdings Act, 1908, still, on the principle of 
 Becker v. Riebold, the above-quoted words cannot take away 
 the protection given to hired machinery by sect. 29 (4) of 
 The Agricultural Holdings Act, 1908. 
 
 The effect of an ordinary grammatical construction of the 
 above-quoted words would appear to be that they do not 
 except from the protection of the Act goods let to a tenant, 
 but that their object is to protect a landlord from being de- 
 frauded by a tenant making a fictitious hire-purchase agree- 
 ment in respect of his oi<M goods, as was done in Re Watson 
 and other cases of that class cited under the heading " Bills 
 of Sale Acts" on p. 2. 
 
 In Shenstone v. Freeman, however. Darling, J., after 
 saying that he was not going to deal with an argument- to the 
 above efiect, held that the words really mean a hire-purchase 
 agreement to which the tenant is in some Way a party ; but, 
 in Rogers v. Martin (according to The Laio Jounml 
 Reports), Lord Alverstone said: — '" The only reasonable 
 ■ meaning of that sub-section is that goods are not to get the 
 benefit of sect. 1, if they are goods as to which the tenant 
 himself has made an arrangement, by which he has sought 
 to secure, for his ouni goods, the protection intended by the 
 Act to be given to the goods of other persons only." 
 
 In subsequent cases. Lord Alverstone's view appears to 
 have been overlooked, and the Courts, instead of directing 
 their attention to the question Avhether the hire-purchase 
 agreement is one which has been " made " by a tenant, have 
 apparently ignored this point and have simply considered 
 
94 THE HIKE-PURCHASE SYSTEM. 
 
 whether the goods are "comprised in" a hire-purchase 
 agreement. 
 
 In Hackney Furnishing Co. v. Watts, a hire-purchase 
 agreement entitled the owners to resumepossession of the goods 
 if the hirer (who was a tenant) made default in payment of 
 any of the instalments and in certain other events, but it did 
 not expressly empower the owners to terminate the agree- 
 ment and determi/ne the baihnent otherwise than by seizing 
 the goods. The owners wrote the hirer a letter purporting 
 to determine the agreement, but they did not seize the goods, 
 which were subsequently distrained upon. It was held by a 
 Divisional Court (who declined, on this point, to follow 
 London Furnishing Co. v. 8olonton, which had decided 
 exactly the contrary) that, notwithstanding the letter written 
 by the owners, the agreement was stiU in existence, and 
 that the goods when distrained on were comprised in a hire- 
 purchase agreement ■made by a tenfmt. 
 
 In Jay's Furnishing Co. v. Brand, it was stipulated 
 that if the hirer (who w'as a tenant) did not duly perform 
 and observe the agreement the same should ipso facto be 
 determined. The hirer being in arrear with his payments, 
 the owners gave him: notice that the agreement had ter- 
 minated, and demlanded and sent, for the goods, but could 
 not obtain them. Subsequently, the hirer's landlord dis- 
 trained, and the Divisional Court held that, notAvithstanding 
 the above facts, the goods were still comprised in a hire- 
 purchase agreement, because, as somie of the provisions of the 
 agreemfent were still effective, the agreement had not been 
 determined. Ridley, J., said that, although the agreement 
 stated that it was ipso facto to be determined, the same 
 clause went on to say that the owners should be at liberty 
 to enter the hirer's premises and retake the goods. If the 
 owners took possession of the goods under that clause, they 
 would be treating the agreement as still in existence, and, 
 in fact, they had tried to retake possession under it . 
 
 Apparently, both in the case just referred to and in Hack- 
 ney Furnishing Co. v. Watts, it was intended to decide that 
 
DISTRESS FOR RENT, RATES AND TAXES. 95 
 
 goods can cease to be comprised in a hire-purchase agreement 
 only when all its provisions have become void; but it is 
 submitted that this is not correct. 
 
 That this submission is well founded is proved by the 
 answer which must be given to the question: What (from the 
 point of view of the title to them') are the only goods which 
 can be comprised in a hire-purchase agreement ? The only 
 possible answer is that they must be goods in which the hirer 
 has (in the words of sect. 1 of The Distress Act, 1908) a 
 " right of property or beneficial interest." When the hiring 
 has determined through the hirer's default, the goods do not 
 answer this description, and therefore they are not goods 
 comprised in a hire-purchase agreement. 
 
 The fallacy of contending that goods must always remain 
 comprised in a hire-purchase agreement, so long as the whole 
 agreement is not void, will be obvious from the following 
 illustration: — A tenant enters into a hire-purchase agree- 
 ment, and duly and punctually performs every stipulation 
 on his part, so that the goods beoomte his absolute property. 
 The agreentent does not 'becoMe 'Mid. On the contrary, it 
 would be a very valuable existing document of title if the 
 original owner were so misguided as to bring an action in 
 detinue against the tenant. Shortly after becoming owner 
 of the goods, the tenant sells and delivers them bond fide and 
 legally to his lodger. Next, the tenant's landlord distrains 
 the goods in question. The lodger claims them as being 
 his property. "Oh! no," says the landlord, "the Act does 
 not apply to these goods because they are comprised in a 
 hire-purchase agreemtent which was made by my tenant and 
 has never become void." Could any argument be more 
 fallacious ? 
 
 After the hiring has determined through the hirer's 
 default, instead of the agreement being an existing hire- 
 purchase agreement in which the goods are comprised, it is, 
 ■so far as its functions as a hire-purchase agreement are con- 
 cerned, junctwm officio — a spent transaction. (Cookson v. 
 Smre. Compare Thornton v. France; and Be Moore.) 
 
96 THE HIRE-PUKCHASE SYSTEM. 
 
 Having regard to the attitude adopted by the Courts up 
 to the present, until it is definitely decided that a hire- 
 purchase agreement " made " by a tenant does not refer to 
 an agreement by which goods are let to him, it will be 
 necessary to draw a hire-purchase agreem'ent, to which a 
 tenant is a party, in such a form that, if possession of the 
 goods cannot be obtained before a distress is ilevied, the 
 goods can, before the distress, be caused to cease to be 
 "comprised in" the agreement. 
 
 It is difficult to say what will meet the requirements of 
 the judgments in Hackney Furnishing Co. v. Watts, and 
 Jay's Furnishing Co. v. Brand, but, in the first Precedent 
 in the Appendix, special clauses are suggested as affording 
 a way out of the difficulty. These clauses are further dealt 
 with in a note to the Precedent. 
 
 Substitution of Husband and Wife as Joint Tenants in 
 place of Husband as Sole Tenant. 
 
 It seems, from reports which appear from time to time in 
 the daily press, that for the purpose of endeavouring to 
 acquire a right of distress over goods which have been let 
 under a hire-purchase agreement to the wife of a tenant, 
 landlords are, in the case of small properties, purporting to 
 make the wife a tenant jointly with the husband, by the 
 simple expedient of adding the wife's name to the husband's 
 in the rent-book. 
 
 It is submitted that such a proceeding on the part of land- 
 lords cannot be effective. 
 
 In the first place, assuming that husband and wife are 
 legally joint tenants and the hire-purchase agreement is made 
 with the wife only, it can hardly be said that the hirer 
 purchase agreemient is made by the tenant whose rent is in 
 arrear. It seems only reasonable in such a case to hold that 
 the husband and wife together constitute the tenant to whom' 
 the Act refers, just as under sect. 2 (6) of The Settled Land 
 
DISTRESS FOR RENT, KATES AND TAXES. 97 
 
 Act, 1882, where bv-o or more persons are beneficially en- 
 titled to possession of settled land for life as joint tenants, 
 they together constitute the tenant for life. 
 
 Again, assuming that, originally, the husband alone is the 
 tenant, and the landlord desires to m'ake the husband and 
 wife joint tenants, the husband's sole tenancy must first be 
 got rid of. To show that this has been done, the landlord 
 must prove a notice to quit, or a surrender in writing under 
 sect. 3 of The Statute of Frauds, or by deed under sect. 3 
 of The Real Property Act, 1845, or a surrender by operation 
 of law. 
 
 In order that there may be a surrender by operation of 
 law, the new tenancy must be valid. {Doe v. Poole ; Doe v. 
 Courtenay.) 
 
 Further, there must be change of possession and occupa- 
 tion. Therefore, it must be shown that the husband has 
 ceased to occupy as sole tenant, and that the husband and 
 wife have taken possession and are occupyjing as joint 
 tenants. {WaMs v. Hands ; Fenner v. Blake.) 
 
 A leading case on surrenders by operation of law is Lyon 
 V. Reed, which is discussed at considerable length in the notes 
 to The Duchess of Kingston's Case in Smith's Leading 
 Cases. 
 
 The two cases of Hammerton v. Stead and Graham) v, 
 Wichelo deal directly with the point of adding a tenant 
 and should be referred to . 
 
 An important question in connection with a wife being 
 added as a tenant would be: What consideration did the wife 
 receive for becoming a joint tenant and altering her position 
 for the worse ? It would doubtless never be found, in such a 
 case, that the landlord created the joint tenancy, at the request 
 of the wife. 
 
 By way of precaution, when goods are let under a hire- 
 purchase agreement to the wife of a tenant, the agreement 
 might provide that the hiring shall immediately determine 
 if the hirer becomfes the tenant of any premises in which the 
 goods may for the time being be placed. 
 
 u. 7 
 
98 THE HIEE-PUECHASE SYSTEM. 
 
 In addition to the possibility of goods held on the hire- 
 purchase system being included in the above class, an owner 
 also runs the risk of finding them' embraced in the next class. 
 
 (3) Goods in the possession, order, or disposition of such 
 tenant, ba/ the consent and pePmdssion of the true 
 owner, under such circumstances that such tenant is 
 the reputed owner thereof. 
 
 The wording of this part of The Distress Act, 1908, is 
 the same as that of the order and disposition clause of The 
 Bankruptcy Act, 1883 (sect. 44, sub-sect. 2 (iii.)), except 
 that, under the last-mentioned section, the goods are required 
 to be in the possession, order, or disposition of the bankrupt 
 in Ms trade or business. The position thus created is very 
 similar to that which existed under sect. 15, sub-sect. 5, of 
 The Bankruptcy Act, 1869, which embraced all goods in the 
 possession, order, or disposition of the bankrupt, being a 
 trader, lexcept that The Distress Act, 1908, is not confined 
 to tenants who are traders. 
 
 As to tools of trade, wearing apparel, and bedding, see 
 p. 112. 
 
 There are collected below various bankruptcy and other 
 decisions which will be found useful in construing this part 
 of The Distress Act, 1908. 
 
 The cases of Storer v. Hunter; Bell v. Hamilton; and 
 Ex parte Rose, Be Keller, are important as showing that, if 
 there is any uncertainty as to ownership, the doctrine of 
 reputed ownership ought not to be applied. 
 
 The question of reputed ownership is one of fact. (Load 
 V. Oreen; Ex parte Atkin, Be Watson; Chappetl v. Harri- 
 son.) The last-cited case was under The Distress Act, 1908. 
 
 Evidence of acts and statements, both in support of and 
 against reputed ownership, is admissible, including evidence 
 as to the reputation in the neighbourhood . (Muller v . Moss ; 
 Gurry. Button^- Oliver v. Bartlett.) 
 
 In bankruptcy cases it has beem held that, in order to bring 
 goods within the clause, they must be in the sole possession 
 
DISTRESS FOR RENT, RATES AND TAXES. 99 
 
 ■of the bankrupt and in his sole reputed ownership . (Ex 
 parte Dofman, Re Lake ; Ex parte Fletcher, Re Bambridge.) 
 It would seem, therefore, that if husband and wife are both 
 tenants, but goods are hired to only one of them, or if goods 
 arc hired to both but only one is tenant, the order and dis- 
 position clause of The Distress Act, 1908, would not apply. 
 
 Upon the question of the possession of a tenant or his 
 wife, reference may be usefully made to Ramsay v. Margrett, 
 w^here it was held that, when it is equally consistent with the 
 facts that the possession of chattels im)ay be in one person 
 or in another, possession follows the title. (See also jB. v. 
 Murray, and Ex parte Salammi, In re Magnus.) 
 
 In Shenstone v. Freeman (a case under The Distress Act, 
 1908), it was held, by a Divisional Court, that a piano which 
 had been let under a hire-purchase agreement to the iinfe 
 of a tenant, and was in the house where the husband and wife 
 were living together, was not in the reputed ownership of the 
 husband. A similar decision was given by the Court of 
 Appeal in Rogers v. Martin. 
 
 Goods merely sent on approbation to a tenant, as a prospec- 
 tive hirer, would not be in his order and disposition. (Gibson 
 V. Bray.) 
 
 The onus of proving the consent of the true owner of hired 
 goods will be on the landlord. (Shenstone v. Freeman.) 
 Thus, in Lingard v. Messiter, it was held that the mere fact 
 that a bankrupt is in possession of goods, which never 
 belonged to him, is not of itself sufficient to raise a presump- 
 tion that the bankrupt is, by the public, considered to be 
 the owner of the goods, or that he is in fact the reputed owner 
 ■of them'. (And see Whitfield v. Brand.) 
 
 Determination of Consent. 
 
 An owner may be able to take the goods out of the order 
 and disposition of the tenant by some of the methods sug- 
 gested by bankruptcy cases, in which it has been held that 
 if, before the act of bankruptcy, or after it but without notice 
 
 7(2) 
 
100 THE HIEE-PUfiCHASE SYSTEM. 
 
 of it, and before the making of the receiving order, the true 
 owner does some act to determine his consent to the bank- 
 rupt's possession of the goods — as by seizing them', or bond 
 fide demanding them', whether the demand be successful or 
 not, or instructing an agent to take possession of the goods 
 —this will prevent the goods passing to the trustee in the 
 bankruptcy . (See the following cases : — Smith v . Topping ; 
 Ex parte Ward, Re Couston; Ex parte Montague, Re 
 O'Brien; Ex parte Cohen, Re Sparke; Ex parte Phillips, 
 Ex parte Alexander, Re Esliclc ; Ex parte Furness Finance 
 Co., Re Seamian.) 
 
 Friendly possession, being real, was held to take the goods 
 out of the order and disposition clause in bankruptcy. {Ex 
 parte National Guardian Assurance Co., Re Francis.) 
 
 The principle of the above bankruptcy decisions was 
 adopted in London Furnishing Co. y. Solomon, which was 
 followed on this point in Hackney Furnishing Co. v. Watts, 
 both cases being under The Distress Act, 1908. 
 
 If the owner of hired goods is entitled to their repossession, 
 but the same cannot be obtained, the hirer should be served 
 with a notice in the form and manner set out on p. 76, in 
 order that the determination of the consent of the owner 
 may be actively demonstrated. (Compare Ex parte London 
 and Universal Bank, Re Ginger (approved in Re Harvey, 
 also reported as HoUingshead\. Egan) ; and Ex parte Ward, 
 Re Weihking.) 
 
 Custom. 
 
 An owner may also be able to protect his goods by means 
 of the bankruptcy rule that where it can be shown, either 
 by evidence or reported decisions, that a custom exists for 
 persons in the bankrupt's position to have goods on simple 
 hire or on the hire-purchase system', the presumption that 
 such goods are in his possession, order, or disposition, in his 
 trade or business, by the consent and permission of the true 
 owner, will be rebutted. {Ex parte Powell, Re Matthews.) 
 
 In construing hire-purchase agreements and applying to 
 
DISTRESS FOR RENT, RATES AND TAXES., 101 
 
 them the notoriety, of trade custom, there is no distinction 
 between articles of luxurji and articles of commerce. (JEx 
 forte Crossley, Be Peel.) 
 
 It wiU not be worth while to set up a custom in respect of 
 goods let out on the hire-purchase systena' to a tenant if the 
 agreement under which they have been let has not been deter- 
 mined before the distress, because although, on the ground of 
 custom, the goods may not be in the order or disposition of 
 the tenant, they will be hit by the previous Words of the 
 section as being goods comprised in a hire-purchase agree- 
 ment made by the tenant, and so liable to distress on this 
 ground. These remarks, of course, do not apply to goods 
 let on simple hire. 
 
 Any custom' alleged to exist must be proved in each case, 
 unless the custom is so universally known and adopted that 
 the Court wiU take judicial notice of it. If it can be shown 
 by reported cases that the alleged custom' has been frequently 
 proved, the Court wiU take judicial notice of it, but other- 
 wise the question of the existence of the alleged custom' must 
 be tried as a question of fact. {Ex parte Fowell, Re Mat- 
 thews; Crmmour v. Salter ; Chappell v. Harrison.) 
 
 The anus of proof of the existence of a custom', when re- 
 quired, is on those who allege it. {Ex parte Nassaxi, Be 
 Horn.) 
 
 Custom as to Miscellaneous Goods. 
 
 A custom for persons to have hired goods in their posses- 
 sion has been proved in the following cases: — Barges (yVat- 
 son v. Peache); gas engine (Ex parte Crossley, Be Peel); 
 iron safes (Ex parte Poppleton, Be Lock) ; printing machi- 
 nery, but not type (Ex parte Hughes, Be Thackrah) ; rail- 
 way wagons (Leman v. Yorkshire,, Sc. Co. ; Manchester, 
 'dc. 'Baihmy Co. v. North Central Wagon Co.); sewing 
 machine {Ex parte Singer d Co., Be Blackmell); steam- 
 engine {Ex parte StooTce,. Be Bampfylde) . 
 
 A custom for persons to have the goods of others in their 
 custody has also been upheld in the case of coachbuilders 
 
102 THE HIRE-PURCHASE SYSTEM. 
 
 (Ex parte Wiggins); booksellers (Whitfield v. Brand); 
 farmers (Priestley v. Pratt); agistment (Ex parte Swansea 
 Mercantile Banlc, Re James); clockmakers (Bell v. Hmnil- 
 ton) ; wine mterchants (Ex parte Vaux ; Ex parte Watkins^ 
 Be Couston); malting agents (Harris y. Truman); horse- 
 dealers (Ex parte Wingfield, Be Florence); and hop mer- 
 chants (Ex parte Dyer, Be Taylor) . 
 
 No custom' has been proved of letting the following on 
 hire: — Cabs (Be Rill); grocers' vans (Ex parte Jensen, Be 
 Callow); or m'antle-dealers' stands or models (Sharman v.. 
 Mason) . 
 
 Custom as to Pianos. 
 
 In Ex parte Hattersley, Be Blanchard, the custom of 
 letting out pianos on hire was proved by the evidence of 
 numerous pianoforte dealers, and Chief Judge Bacon said: 
 " The existence of the custom' is in my opinion proved con- 
 clusively, and indeed it can scarcely be said to be called in 
 question at all by the respondents." 
 
 Notwithstanding Ex parte Hattersley, Be Blanchard, it 
 was held, in Chappellv . Harrison (a case under The Distress- 
 Act, 1908), that, in the absence of specific evidence of the 
 custom, the Court will not regard pianos as articles which 
 are so continuously let on hire as to rebut the reputed owner- 
 ship of tenants. 
 
 It should be noticed that the case of Chappell v. Harrison 
 was not a hire-purchase or simple hiring case. It related to. 
 a jDiano which had been lent to a tenant, who was a gratuitous, 
 bailee. This point was not argued, but, having regard to it, 
 the decision seem's to be contrary to that of the Irish case of 
 Ex parte Murphy, Be M'Parlatid, where it was held that a 
 piano left in the custody of a gratuitous bailee did not pass 
 to the assignee, on his being adjudicated bankrupt, in the- 
 absence of !a,nj evidence that he obtained credit by being 
 in possession of it. 
 
DISTRESS FOR RENT, RATES AND TAXES. 103 
 
 Custom as to Hotel and Boarding-house Furniture. 
 
 The hiring of hotel and boarding-house furniture seem to 
 be the only transactions in reference to which it has been 
 decided that judicial notice will be taken of a custom to hire 
 goods, unless possibly the saMe rule applies to ordinary 
 household furniture which is considered below. 
 
 In Crmccnur v. Salter, it was held that a custom for hotel- 
 keepers to hold their furniture on hire was so well established 
 that the Court was bound to take judicial notice of it; and, 
 in Ex parte Turquand,, Re Parker, it was held that the exist- 
 ence of such custom' excludes the idea of reputed ownership 
 altogether in regard to hotel furniture, and not merely where 
 the furniture is let by the true owner . 
 
 In Ex parte Whiteley, Be Chaprrian, the case of furniture 
 in a private boarding-house, where non-intoxicants only were ' 
 supplied, was held to be the sa'mb as in an hotel. (And see 
 Ex parte Steel, Re Eales.) 
 
 In Cunningham v. Philip, the jurj- found that the defen- 
 daiit, who kept a temperance hotel, was an innkeeper. 
 
 Custom as to Household Furniture. 
 
 The case of Ex parte Brooks, Re Foiiier, is frequently 
 cited in support of the proposition that no custom' for furni- 
 ture dealers to let out household furniture on hire has been 
 proved. 
 
 This proposition is based upon certain remarks made, 
 on the appeal in the case, by the JVIaster of the liolls, 
 who said: " I certainly should be surprised to hear that it is 
 so comWon for a man to hire a whole house full of furniture 
 that the public are not entitled to assume that a man is the 
 owner of the furniture in his house." These rem'arks were 
 not necessary for the decision of the case, which did not 
 involve the question of a trade custom'. 
 
 Having regard to Ex parte Poiuell, Re Matthews, and 
 Crait'cour v. Salter (which cover 'much wider ground than 
 
104 THE HIRE-PUKCHASE SYSTEM, 
 
 that of hotel furniture merely), and the decisions of Chief 
 Judge Bacon in Ex parte Emerson, Re HaioMns, and Ex 
 parte Brooks, Re Pointer, it is subtaiitted, notwithstanding 
 the rem'arks of Lord Alverstone in Chdppell v. Harrison, 
 that the decision of the Court of Appeal in Ex parte Brooks, 
 Re Fowler, is no authority whatever for the proposition that 
 no custom for furniture dealers to let out household furniture 
 on hire has been proved, but that it simply confirms Ex parte 
 Lovering, Re Jones, and decides that there can be no customi 
 for the owner of household f umitui-e to sell it and then hire it 
 back again from' the purchaser, and that the judgments of 
 Chief Judge Bacon, in Ex parte Emerson, Re Hawkins, and 
 Ex parte Brooks, Re Fowler, distinctly recognise the custom: 
 of furniture dealers letting out on hire household furniture^ 
 which they have not previously purchased from! the hirer. 
 
 It may not, perhaps, be strictly correct to say that the 
 Courts have decided that judicial notice will be taken of the 
 custom of hiring household furniture, but they have practi- 
 cally done so, and it would probably not be difficult at the 
 present day to obtain a decision to this effect, particularly 
 if the same class of evidence were tendered as was admitted 
 in Ex pai'te Powell, Re Mattheivis. 
 
 That the changes which take place in the customs and 
 usages of trade, as years roll by, affect the interpretation of 
 the doctrine of reputed ownership is strikingly shown by the 
 judgments in Belli v. Hamilton. 
 
 Declaration. 
 
 In order to obtain the protection of The Distress 'Act, 
 1908, it is necessary (as provided by sect. 1) for the person 
 claiming the goods to serve the superior landlord, or his 
 baiHff or other agent, with a declaration in writing, in the 
 form set out below. A fresh declaration must be made each 
 time that a distress is levied, or authorised, or threatened. 
 (Thwaites v. Wilding.) 
 
 The declaration need not be a "statutory declaration" 
 
DISTRESS FOR RENT, RATES AND TAXES. 105 
 
 ?iiad.e before a commissioner or other person authorised to 
 administer oaths, a simple statement in writing only being 
 required. {Rogers v. Martin.) 
 
 Sect. 1 of The Disil;ress Act, 1908, further provides that 
 -the declaration must be Trtade by the undertenant, lodger, 
 or other person. 
 
 Having regard to the judgment of Cotton, L. J., in Ex 
 parte Harris, as reported in the Law Reports, it is submitted 
 that the declaration must be signed and made by a claimant 
 personally, unless the claimant is a company. 
 
 The declaration may be made on behalf of a firm by one 
 partner signing in his own name. {Rogers v. Martin.) 
 
 Having regard to the judgment of Vaughan Williams, J., 
 in Bishop v. Balkis Consolidated Co., it would seem that a 
 -declaration by a company should strictly be sealed, but 
 probably the inference that the law confers upon a com- 
 pany the power to act by agent in such a case is applicable. 
 (Compare In re Midgley.) In Chappell v. Harrison, the 
 declaration was made on behalf of a company by one of the 
 staff, who was authorised by resolution . 
 
 An authority by a company to a person in its employ 
 to make the declaration might be in the following form: — 
 
 The Law of Distress Amendment Act, 1908. 
 
 A. B. & Co., Ltd., a joint stock company duly constituted, 
 and having its registered office situate at Street, , 
 
 in the county of , hereby authorises each of the following 
 
 persons in its employ, namely, D. E., P. G., and H. J., to 
 make, on behalf of the company, any declaration required to 
 be served under the provisions of The Law of Distress Amend- 
 ment Act, 1908. 
 
 Dated this day of , 19 . 
 
 The common seal of A. B. & Co., Ltd., s 
 
 was affixed hereto, pursuant to a reso- | rsEAL.l 
 
 lution of the Board of Directors, in j 
 
 the presence of / 
 
 ; I Directors. 
 
 , Secretary. 
 
106 THE HIRE-PURCHASE SYSTEM. 
 
 If any difficulty should be apprehended, the declaration 
 might be made by the undertenant or lodger, in a case in 
 which goods have been hired to one. 
 
 The declaration is required to set forth that the immediate 
 tenant has no right of property or beneficial interest in the 
 goods. 
 
 Where goods are let to an undertenant or lodger, or to 
 the husband or wife of the imtoediate tenant, the latter 
 obviously cannot have any right of property or beneficial 
 interest in them, provided the husband or wife, as the case 
 may be, is not merely the agent of the tenant. 
 
 Unless the agreement is properly drawn, however, it will, 
 in many cases in which goods are let op hire to an immediate 
 tenant, probably be impossible for an owner to declare that 
 the tenant has no right of property or beneficial interest in 
 the goods, because so long as the hiring is not determined 
 a hirer always has some right of property or beneficial in- 
 terest in the goods hired, to the extent of his bailment, and 
 if the owner cannot make the declaration on this ground he 
 will be unable to protect his goods. 
 
 If, however, the owner is, in accordance with the terms of 
 the agreement, entitled to the immediate possession of the 
 goods, because the hirer is in arrear with his payments, or 
 in consequence of the distress itself, or for some other reason, 
 then the hirer will have ceased to have any right of property 
 or beneficial interest in the goods {J elks v. Haytvard), and 
 the owner will be able. to make the declaration in the pre- 
 scribed form'. For these reasons it is desirable that the 
 agreement should provide that the hiring shall immediately 
 determine if the hirer becomes in arrear with his payments, 
 or if a distress is levied or is threatened to be levied on the 
 hirer's effects, or the hired goods. 
 
 The clause, which it is desirable to insert in hire-purchase 
 agreements, giving the hirer an option to purchase or resume 
 the hiring after the determination of the hiring, might be 
 held to give the hirer some right of property or beneficial 
 interest in the goods, and, in order to prevent such a construe- 
 
DISTRESS FOR RENT, RATES AND TAXES. lOIT 
 
 tioii, it should be provided that, until the hirer shall have 
 fully complied with the stipulations of the clause in question, 
 he shall not have, or be deemed to have, any right of pro- 
 perty or beneficial interest in the chattels. As to the effect 
 of giving an option to the hirer to purchase or resume the 
 hiring, see Rackney Ftirnishing Co. v. Watts. 
 
 The provision in sect. 1 of The Distress Act, 1908, requir- 
 ing the declaration of an undertenant or lodger to set forth 
 particulars as to his rent, seems to overrule Ex parte Harris 
 on this point. 
 
 An inventory must be annexed to the declaration and sub- 
 scribed by the claimant. As to this, see Oodlonton v., 
 Fiilhcem, <&c. Co. 
 
 The concluding words of sect. 1 of The Distress Act, 
 1908, as to the penalty for making a false declaration, are 
 now superseded by sect. 5 of The Perjury Act, 1911. 
 
 The following forms of declaration appear to meet the 
 requirements of The Distress Act, 1908: — 
 
 Declaration by Owner. 
 
 To Mr. A. B.j of, &o. [the superior landlord^], and his agent 
 and bailiff. 
 
 I [^name, address, and business of owner] do hereby, pursuant 
 to The Law of Distress Amendment Act, 1908, declare that 
 E. 3?., of, &c., your inunediate tenant, has no right of property 
 or beneficial interest in the furniture, goods, and chattels men- 
 tioned and described in the inventory hereunder written, and 
 being in the house known as No. , Street, , in 
 
 the county of , which have been distrained upon [or, are 
 
 threatened to be distrained upon] for arrears of rent due from 
 the said E. E. And I further declare that the said furniture, 
 ■ goods, and chattels are my property, and are not goods or live 
 stock to which the said Act is expressed not to apply, and that 
 the said furniture, goods, and chattels were let by me to G. E,, 
 the wife [or, to H. J., an undertenant; or, to E. L., a lodger; 
 or as the case may 6e] of the said E. E., under a hire-purchase 
 [or, hiring] agreement dated the day of j 19 ; and 
 
 made between myself, of the one part, and the said G. E. [or 
 as the case may &e], of the other part. 
 
108 THE HIRE-PURCHASE SYSTEM. 
 
 [// the declaration is made on hehalf of a company, the above 
 will he altered accordingly, and the following clause will he 
 added :~\ And I declare that I am duly authorised under the 
 seal of the said company to make this declaration on its behalf. 
 
 Dated this day of , 19 . 
 
 The Inventory above eefeered to. 
 \_8et out details of the furniture, <fcc.J 
 
 {^Signature of declarant. 1 
 
 Declaration by Undertenant or Lodger. 
 
 To Mr. A. B., of, &o. [the superior landlord'], and his agent 
 and bailiff. 
 
 I, 0. D.J of , in the county of {^profession or 
 
 occupation], do hereby, pursuant to The Law of Distress 
 Amendment Act, 1908, declare as follows: 
 
 1. I am an undertenant \or, lodger in the house] of your 
 immediate tenant, E. P., of, &c. 
 
 2. The said B. ~S. has no right of property or beneficial 
 interest in the furniture, goods, and chattels mentioned and 
 described in the inventory hereunder written, and being in 
 the house known as aforesaid, which have been distrained 
 upon [or, are threatened to be distrained upon] for arrears of 
 rent due from the said B. B. 
 
 3. The said furniture, goods, and chattels are my property 
 for, are in my lawful possession], and are not goods or live 
 stock to which the said Act is expressed not to apply. 
 
 4. I owe to the said E. B. the sum of £ , being one 
 month's rent, which became due on the 1st instant, and the 
 future monthly instalments of my rent, amounting to £ 
 each, will become due on the 1st proximo, and on the first day 
 of each succeeding calendar month. 
 
 5. I undertake to pay to you the rent so due from me as 
 aforesaid, and to become due from me, until the arrears of 
 rent in respect of which you have levied a distress [or, autho- 
 rised a distress to be levied] have been paid off. 
 
 Dated this day of , 19 . 
 
 The Inventory above eefeered to. 
 [Set out details of the furniture, &c.J 
 
 [Signature of declarant.] 
 
DISTRESS FOR RENT, RATES AND TAXES. 109i 
 
 A declaration by an undertenant or lodger should bear a 
 sixpenny stamp in respect of the undertaking to pay th& 
 rent, unless this does not aniount to £5 . 
 
 Service of Declaration. 
 
 Having regard to the fact that, in order to make a landlord 
 U'able for illegal distress, it is necessary, at common law, to 
 show that he either authorised or ratified it (Freeman v. 
 Rosher ; Becher v. Riebold), the declaration should be served 
 upon the landlord, as well as on the bailiS or other agent,, 
 if it is intended to bring an action against the landlord. 
 When the declaration has been served upon the landlord, the 
 concluding words of sect. 2 of The Distress Act, 1908, make 
 the landlord liable if the distress is proceeded with, even if 
 he did not distrain in person or did not authorise the acts 
 complained of. (Lowe v. Dorlinff.) 
 
 If the declaration is not served on the landlord, care should 
 be taken to see that it is served on the bailiff or other agent 
 emploijed to levy^ the distress, as if the declaration is served 
 only on an agent who was not engaged in the levy, e.g., an 
 auctioneer who is merely instructed to sell, the distress, 
 although proceeded with, possibly does not become illegal by 
 virtue of the Act. 
 
 The Distress Act, 1908, does not contain any direction as 
 to how service of the declaration is to be effected. In 
 Thwaites v. Wilding, Bowen, L. J., said: "I think it is 
 clear that the conditions by which the statute enacts that a 
 lodger may relieve himself from the ordinary stress of the 
 common law must be strictly complied with "; and, having 
 regard to the penalty im'posed upon a landlord and bailiff 
 for disregard of a declaration, knowledge of the service ought 
 to be clearly brought home to them. 
 
 Sect. 4 (2) (c) provides that the notice there im'entioned 
 shall be given in the same manner as a notice to quit, and 
 sect. 6 refers to a notice being given by registered post. 
 Adopting the principles of these provisions, it would seem' 
 
illO THE HIRE-PURCHASK SYSTEM. 
 
 to be a good working rule to either serve the declaration per- 
 sonally (compare Jarvis v. HerHndngs) or to send it by- 
 registered post, as may be done in the case of a notice to 
 ■quit. (See Papitton v. Brunton ; and Greshcan House, dc. 
 v. Rossa, dc.) 
 
 For other notes as to service, see under the heading 
 " ■Method of Service of Notices " on p. 77. 
 
 The declaration should be served within the five days men- 
 tioned in sect. 3 of The Distress Act, 1689. 
 
 If the superior landlord sells the goods before the expira- 
 tion of the five days, he will, irrespective of The Distress 
 Act, 1908, and even though the declaration has not been 
 served, be liable, in an action for irregular distress, to the 
 undertenant, lodger, or other person for any special damage. 
 {Sharp V. Fomle.) 
 
 By sect. 6 of The Distress Act, 1888, the .period of five 
 ■days mentioned in sect. 3 of The Distress Act, 1689, is 
 extended to fifteen days, if the tenant or owner of the goods 
 (see P erring d Co. v. Ewierson) so requests, and gives secu- 
 rity for the extra expense, but an owner of hired :goods 
 should not rely upon this extended time where it has been 
 given at the request of a tenant, because, by the same section, 
 the landlord may, at the request of the tenant, sell before 
 the expiration of the extended time. 
 
 Tender. 
 
 Pursuant to sect. 2 of The Distress Act, 1908, jf there 
 is any rent due from the undertenant or lodger at the date of 
 the declaration, it must be paid or tendered in accordance 
 with the undertaking. A tender may be made to the land- 
 lord or his authorised agent even after such landloi'd or agent 
 has signed a distress warrant. {Smith v. Goodmn ; Bennett 
 V. Bayes.) A bailiS acting under a warrant of distress (but 
 not the man in possession) has an implied authority to receive 
 the money. {Hatch v. Hale; Boutton v. Reynolds.) 
 
DISTRESS FOR RENT, RATES AND TAXES. Ill 
 
 Remedies of Owner, &c. 
 
 Under sect. 2 of The Distress Act, 1908, if, after the 
 requirements of sect. 1 have been complied with, the distress 
 is levied or proceeded with, an action for illegal distress may 
 be brought against the landlord, bailiff {Lowe v. Darling; 
 Shenstone v. Freeman), or other agent (Bennett v. Bayes), 
 and another remedy is provided in the form of an applica- 
 tion to a Court of summary jurisdiction for a restoration 
 order. The proviso to sect. 4, sub-sect. (2) also provides 
 for a peculiar method of procedure for determining whether 
 any goods are in fact goods covered by the sub-section. As 
 to this, compare Doner v . Child, from which it would appear 
 that if a decision were given under the proviso an owner 
 would be estopped from' bringing an action. 
 
 Restoration Order. 
 
 iWith reference to an application for the restoration of 
 goods, sect. 2 of The Distress Act, 1908, provides that a 
 stipendiary magistrate, or two justices, may inquire into the 
 truth of the declaration and inventory, and make such order 
 for the recovery of the goods or otherwise as to him or them 
 jnay seem just. 
 
 The stipendiary or justices cannot give damages for illegal 
 distress {Lowe v. Darling), but, as the Act provides that 
 they may make an order "for the recovery of the goods or 
 otherwise," they can probably make an alternative order for 
 the return of the goods, or payment of their value if they are 
 not returned. 
 
 The application should be made by summons. (Compare 
 Gill V. Bright.) 
 
 If a decision is given under sect. 2, the truth of the de- 
 claration and inventory may still be inquired into in an 
 .action at law against the landlord. 
 
112 THE HIRE-PURCHASE SYSTEM. 
 
 Injunction against Distress. 
 
 Although an injunction as to a distress is not favoured hy 
 the Courts (Carter v. Sdbmon), still an injunction may be- 
 obtained against an actual or threatened distress, but the- 
 rent "wiU be ordered to be brought into Court. (Sham v. 
 Jersey; Walsh \. Lonsdale.) 
 
 Appointment of Receiver before Distress. 
 
 See the case of Moore v. Austin, cited on p. 122, post. 
 
 Other Remedies. 
 
 In addition to the remedies for illegal distress above men- 
 tioned, there are also the summary proceedings under sect. 4 
 of The Distress Act, 1895, referred to below. 
 
 In the metropolitan police district, a summary remedy for 
 illegal distress, in the case of a weekly or monthly tenancy, 
 or where the annual rent does not exceed £15, is provided, 
 by sect. 39 of The Metropolitan Police Courts Act, 1839. 
 
 Tools of Trade, &c. 
 
 Irrespective of The Distress Act, 1908, ther& are certain: 
 common law and statutory rules, under which exemption from 
 distress for rent may sometimes be claimed for hired goods, 
 on the ground that they are tools of trade, wearing apparel, 
 or bedding. These rules have not been affected by The 
 Distress Act, 1908, which does not render liable to distress 
 goods which are otherwise privileged. Thus, tools of trade 
 and other goods otherwise privileged are not liable to dis- 
 tress for rent under sect. 4 of The Distress Act, 1908, 
 merely because they may be included in a hire-purchase 
 agreement made by a tenant. (Becker v. Riebold.) 
 
 At common law, goods in actual use are absolutely privi- 
 leged from distress. (Simpson v. Hartopp.) 
 
 At common law, also, tools and implements of trade are,. 
 
DISTEESS rOK EENT, BATES AND TAXES. 113 
 
 under certain circumstances, conditionally privileged from 
 distress, that is to say they are privileged when there is 
 other sufficient distress on the premises {Simpson v. Rar- 
 topp), the onus being on the landlord to prove the insuffi- 
 ciency of the other goods. {Nargett v. Nias.) 
 
 Under sect. 4 of The Distress Act, 1888, the wearing 
 apparel and bedding of a tenant or his family, and the tools 
 and implements of his trade, to the value of five pounds, 
 are absolutelij privileged from distress, but this section does 
 not extend to any case where the lease, term, or interest of 
 the tenant has expired, and where possession of the premises, 
 in respect of which the rent is claimed, has been demanded, 
 and the distress is made not earlier than seven days after such 
 demand. In connection with this proviso, it should be borne 
 in mind that The Landlord and Tenant Act, 1709 (as to 
 which, see p. 121, post), does not enable a landlord to distrain 
 on a tenant who holds over, if the tenancy is less than yearly. 
 
 Sect. 4 of The Distress Act, 1895, provides that a Court 
 of summary jurisdiction, on complaint that goods or chattels 
 exempt under sect. 4 of The Distress Act, 1888, from distress 
 for rent have been taken under such distress, may, by sum- 
 mary order, direct that the goods and chattels so taken, if not 
 sold, be restored; or, if they have been sold, that such sum as 
 the Court may determine to be the value thereof shall be paid 
 to the complainant by the person who levied the distress or 
 directed it to be levied. 
 
 The following decisions were, before the passing of The 
 Distress Act, 1908, given upon the question as to what are, 
 or are not, exemipt as being bedding and tools and implements 
 of trade within sect. 4 of The Distress Act, 1888. It should 
 be noted that hired goods are covered by the section, and, 
 as stated above, that the privilege from distress is not affected 
 by The Distress Act, 1908:— 
 
 A bedstead, as well as the articles of bedding on it, was 
 held to be exempt. (Dav^is v. Harris.) 
 
 A sewing machine in the possession of a tenant under a 
 hire-purchase agreement, and used by the tenant's wife to 
 
 E. 8 
 
114 THE HIRE-PURCHASE SYSTEM. 
 
 support the family, was held privi'legcd . {Masters v. 
 Fraser ; Churchward v. Johnson.) 
 
 A cab, valued at £25, hired bj a cab-driver and used by 
 him in his calling', being the onJi;y chattel upon the premises 
 capable ,of being seized under a distress for rent, was held 
 to be an " implement of trade," and so exempt from distress. 
 (Lavell V. Bitchinffs.) 
 
 A sample typewriter, in the possession of a traveller em- 
 ployed by a firm of typewriter manufacturers, was held not to 
 be a tool or implement of the traveller's trade. (Addison 
 V. Shepherd.) 
 
 The combined eliect of sect. 4 of The Distress Act, 1888, 
 and sect. 147 of The County Courts Act, 1888, is that, under 
 a distress for rent, the goods of the tenant which are exempt 
 from seizure are limited to goods of the description men- 
 tioned in the exception to sect. 147 of The County Courts 
 Act, 1888, to the total value of live pounds. Hence, where 
 under a distress wearing apparel and bedding, together of 
 the value of five pounds, were left on the demised premises, 
 it was held that all implements of trade (including a piano 
 hired by the tenant for the purpose of enabling his wife to 
 assist in maintaining and supporting his family and house- 
 hold by teaching music, and used for that purpose) were 
 liable to seizure. {Boyd v. Bilham.) 
 
 Where, in consequence of other goods to the value of £5 
 having been left, sect. 4 of The Distress Act, 1888, does 
 not apply, it will be necessary to rely on the common law, or 
 to adopt the procedure under The Distress Act, 1908, if 
 applicable. 
 
 In Bodley V. Reynolds (approved in Wood v. Bell), in 
 an action for conversion of carpenter's tools, the plaintiff 
 obtained judgment for £10 for the value of the tools and £10 
 as special damage. (See also Davis v. swell ; and Beckett 
 V. Toiver Assets Co.) 
 
DISTRESS FOK RENT, RATES AND TAXES. 115 
 
 General List of Goods Privileged from Distress. 
 
 If, in any pai-ticular case, it is found that protection cannot 
 be obtained upon anj' of the grounds above set out, it may be 
 possible to secure it by reference to other statutes and certain 
 decided cases applicable to various classes of goods, a list of 
 which is given below. This list is not exhaustive, but, 
 coupled with the law above considered, it probably contains 
 all the classes of goods as to which the question of privilege 
 from distress for rent is likely to arise in connection with 
 simple hiring and hire-purchase agreements . The list above 
 referred to is as follows: — 
 
 (A) Goods of ambassadors and other public ministers of 
 
 any foreign State, and of their servants, under 
 sect. 3 of The Diplomatic Privileges Act, 1708. 
 (Compare Re Republic of Bolivia.) 
 
 (B) Frames, looms, or machines, &c. hired to be used in 
 
 woollen, worsted, linen, cotton, flax, mohair, and 
 silk manufactures, under sect. 18 of The Hosiery 
 Act, 1843. 
 
 (C) Certain railway rolling stock, if it is not the actual 
 
 property of the tenant, but has upon it a distin- 
 guishing metal plate afiixed to a conspicuous part 
 thereof, or a distinguishing brand or other mark 
 conspicuously impressed or made thereon, suffi- 
 ciently indicating the actual owner thereof, under 
 sect. 3 of The Eailway Eolling Stock Protection 
 Act, 1872. The tenant's interest in the roUing 
 stock is not protected. (Boston Estate, dc. Co. 
 V. Western Wagon, dc. Co.) 
 
 (D) Gas meters and any fittings for the gas let on hire 
 
 by a gas company, under sect. 14 of The Gasworks 
 Clauses Act, 1847, and gas meters and any fittings 
 thereto let on hire by a gas company, under 
 sect. 18 of The Gasworks Clauses Act, 1871. A 
 gas stove is within the privilege conferred by the 
 8(2) 
 
116 THE HIRE-PURCHASE SYSTEM. 
 
 Act of 1847, but it is doubtful whether it is within 
 the Act of 1871. {Gas Light and Coke Co. >v. 
 Hardy.) 
 
 (E) Meters, instruments, pipes, and apparatus let on hire 
 
 bj a water company authorised by their special Act 
 to supply water by measure, under The Water- 
 works Clauses Acts, 1847, s. 44, and 1863, s. 14. 
 
 (F) Agricultural or other machinery, which is the pro- 
 
 perty of a person other than the tenant, and is on 
 the premises of the tenant under an agreement with 
 him for the hire or use thereof in the conduct of his 
 business, under sect. 29 (4) of The Agricultural 
 Holdings Act, 1908. This privilege is not taken 
 away by sect. 4 (1) of The Distress Act, 1908. 
 See the remarks upon this point on p. 92, ante. 
 (G-) The goods of a guest at an inn. (Crosier v. Tom- 
 
 kinson; Robinson \. Walter.) 
 (H) Goods warehoused in the ordinary course of business. 
 
 at a furniture depository. (Mites v. Furber.) 
 (I) Goods in the possession of a pawnbroker as security 
 for money advanced. 
 
 In an action by a pawnbroker in respect of 
 goods distrained for rent, the pawnbroker is en- 
 titled to recover tlie full value of the goods. 
 (Swire v. Leach. And see The Winkfield.) 
 (J) Electric lighting apparatus, under sect. 25 of The 
 Electric Lighting Act, 1882, and sect. 16 of The 
 Electric Lighting Act, 1909. 
 
 A local authority, which is authorised to 
 
 supply . electricity, has no power to supply 
 
 apparatus (Att.-Gen. v. Leicester Corporation ; 
 
 followed in Att.-Gen. v. Sheffield Corporation) y 
 
 unless it is authorised by its Private Act. 
 
 (K) Things delivered to a person exercising a public trade 
 
 to be carried, wrought, worked up, managed, or 
 
 dealt with in the way of his trade or employ. 
 
 (Sinrtpson v. Hartopp.) 
 
DISTRESS FOR RENT, RATES AND TAXES. 117 
 
 The protection afforded to goods of this class 
 has now been extended bj The Distress Act, 
 1908. 
 (L) Fixtures affixed to the freehold. {Rom v. Baker, 
 and the notes thereto in Smith's Leading Cases.) 
 A mere temporary removal of fixtures for the 
 purposes of neoessitj will not affect the privilege. 
 {Gorton v. Falhner.) 
 
 A gas engine, obtained bj a tenant under 3, 
 hire-purchase agreement, and which was laid on 
 a raised bed of concrete and screwed down on to 
 bolts sunk in the concrete and fastened into the 
 ground, was held to be a fixture, and therefore 
 not distrainable . {Crossley, v. Lee.) In this 
 case, the decision in Hellawell v. Eastwood was 
 not followed. (See also Provincial Billposting 
 Co. V. Lotv Moor Iron Co., and Becker v. Rie- 
 botd, the latter being a case of machines field 
 under a hire-purchase agreement.) 
 Even if goods are not absolutely or conditionally 23i"ivi- 
 leged from distress, and cannot be protected under tlie provi- 
 sions of any statute, still the landlord's riglit of distress may 
 be suspended, postponed, or lost, citlier as against tlie tenant 
 or a stranger, by an express or implied agreement not to 
 distrain, or by conduct on the part of the landlord inducing 
 the owner of chattels to helieve that the landlord will not 
 take them as a distress. If the landlord agree that goods 
 placed on the premises let shall not be liable to distress, he 
 will be liable to an action if he take the goods in breach of 
 the agreement. {Horsford y Webster; Giles v. Spencer; 
 Miles V. Furher.) 
 
 In the present state of tlie law, it would be wise for an 
 owner of hired goods to obtain from' the landlord an agree- 
 ment to the following effect: — 
 
 To Mr. {the owner']. 
 
 In consideration of your liiring a pianoforte to Mr. , 
 
 of , my tenant, I liereby agree not to distrain, seize, or 
 
118 THE HIRE-PURCHASE SYSTEM. 
 
 sell the same, or to' cause or allow the same to be distrained, 
 seized, or sold. 
 
 Dated this day of , 19 . 
 
 [_8ignature and address of landlord.^ 
 
 This agreement should be stamped with a sixpemiy stamp. 
 
 As a general rule, if a landlord distrains and sells goods 
 which are upon the premises let, some of wihich are and some 
 are not comprised in a bill of sale, the bill of sale holder is 
 entitled to stand in the landlord's place, and, under the doc- 
 trine of marshalling, to have the goods not comprised in the 
 biU. of sale first applied in payment of the rent. (Ex parte 
 Stephenson.) Under these circumstances, hired goods would 
 be primarily liable to distraint, but if the landlord has 
 signed such an agreement as is suggested above, the bill of 
 sale holder will not be entitled to have them' applied in pay- 
 ment of the rent, as he is only entitled to have so applied 
 those goods which are liable to distress. 
 
 Miscellaneous Notes as to Distress. 
 
 Below will be found some notes bearing upon various 
 points, in reference to which owners of hired goods fre- 
 quently come into conflict with landlords. 
 
 Tenancy Must Exist. 
 
 Unless there is a tenancy under which the occupier (in- 
 cluding a lodger) is entitled to the exclushte possession of 
 the premises, and not a mere licence, there is no right of 
 distress. {Provincial Bill/posUng Co. v. Low Moor Iron 
 Co. ; Newman v. Anderton; Wells v. Kinffston-upon-HuU ; 
 Smith V. Lambeth.) 
 
 A person, who lets premises to which he has no title, cannot 
 distrain upon goods which are the property of a third person 
 who does not claim under the itenant . {Tacknan v . Heninan . ) 
 
 An order for the winding up of a company does not, of 
 
DISTRESS FOR RENT, RATES AND TAXES. 119 
 
 itself, prevent a distress on goods which do not belong to 
 the company. {Re Regent, dc. Stores.) 
 
 Who May Distrain. 
 
 A distress may be levied by a landlord personally, or, 
 under sect. 7 of The Distress Act, 1888, and. sect. 2 of The 
 Distress Act, 1895, by his certificated bailiff named in the 
 warrant. (St/monds v. Kurtz.) If the landlord personally 
 levies, an uncertificated bailiff can complete the distress. 
 {Jackson v. Bennan.) The managing director of a com- 
 pany, unless certificated, cannot levy a distress. {Hogarth 
 V. Jennings.) 
 
 A distress levied by an uncertificated agent is void both 
 against the tenant and the owners of hired goods. {P erring 
 S Co. V. Emerson.) 
 
 When Distress may be Levied. 
 
 A distress can only be levied after sunrise and before sun- 
 set. {Tutton v Darke; Collier v. Nokes.) 
 
 Rent may lawfully be made payable on a Sunday . {Child 
 V. Edwards.) A distress may be levied on the day after the 
 rent becomes payable {Dibble v. Boiuater), but not on a 
 Sunday. {Werth v. The London and Westminster Loan 
 Co.) 
 
 Sect. 68 of The National Insurance Act, 1911, suspends a 
 right of distress during the period mentioned therein. 
 
 Rent in Advance. 
 
 The point does not appear to have been decided, but it is 
 submitted that, except where rent is payable in advance by 
 the custom of the country, the goods of a stranger, e.^r., hired 
 goods, cannot be distrained for rent in advance; because, 
 when a tenant agrees to pay rent in advance, he gives his 
 landlord a right or licence which the common law does not 
 confer, and although the tenant may give his landlord a 
 
120 THE HIRE-PURCHASE SYSTEM. 
 
 licence to seize the tenant's own goods, he cannot give him 
 a licence to seize the goods of third parties. (See and com- 
 pare Chapman v. Beechami; Pottitt v. Forest ; and Freeman 
 V. Edwards.) 
 
 By sect. 18 of The Bankruptcy Act, 1913, the power of a 
 landlord to distrain, after hankruptcy, for rent payable in 
 advance is taken away. 
 
 Effect of Tender. 
 
 A tender, before distress, of rent without any charges 
 makes the seizure illegal, even though the warrant lias been 
 delivered to the bailiff ; after seizure and before impounding, 
 a tender of rent and charges makes the detention illegal {Six 
 Carpenters' Case, and the notes thereto in Smith's Leading 
 Cases); and a sale after tender of rent and costs, made before 
 the expiration of the five days, though after impounding, is 
 wrongful within the equity of The Distress Act, 1689. 
 (Johnson v. Upham.) 
 
 As to the persons to whom a tender may be anade, see under 
 the heading " Tender," on p. 110. 
 
 Distress during Tenancy, &c. 
 
 A landlord can distrain only during the continuance of 
 the tenancy, unless the tenancy has expired in the ordinary 
 course of time, or by notice to quit, but not by disclaimer or 
 forfeiture {Grimwood v. Moss), or possibly suiTcnder, and 
 the case is within sects. 6 and 7 of The Landlord and Tenant 
 Act, 1709, which enact that in the case of a lease for life or 
 lives, or for years, or at will, the landlord may distrain after 
 the determination of the tenancy, provided the distress is 
 levied within six months of the determination, and during 
 the continuance of the landlord's title, and during the posses- 
 sion of the tenant from whom the arrears of rent are due. 
 
 The Act of 1709 applies where the holding over is tortious, 
 or where there has been an assent by the landlord to a eon- 
 
DISTRESS FOR RENT, RATES AND TAXES. 121 
 
 tinuauce of a possession which had begun under the old 
 tenancy; but it does not apply Avhere the continuance in 
 possession is referable to a new title in the tenant. {Leivis v. 
 Davies.) 
 
 Although there do not appear to be any decisions upon the 
 point, yet having regard to the cases decided upon the 
 corresponding words in sect . 1 of The Landlord and Tenant 
 Act, 1730, it would appear that the Act of 1709 applies to a 
 tenancy from' year to year, but that it does not apply to a 
 half-yearly, quarterly, monthly, or weekly tenancy. (Com- 
 pare Lake v. Smith; Wilkinson v. Hall; Sullivan v. 
 Bishop; smd. Llaydy. Rosbee.) 
 
 No Lien by Landlord. 
 
 If a tenant, whose tenancy has expired, vacate premises, 
 leaving hired goods behind, the landlord cannot detain those 
 goods from' the owner under any claim of lien. (Thompson 
 V. Lacy.) As to liens generally, see under the heading 
 " Liens for Repairs, &c.," on p. 50. 
 
 Goods m.ust be on Tenant's Premises. 
 
 Subject to certain exceptions, not material to be noticed, 
 the goods on which the distress is levied must be upon the 
 premises in respecJt of which the rent is due {Thornton v. 
 Adcnra ; Capely. Buszard), or standing on (but not merely 
 passing over), and not over the centre of, a road adjoining 
 the premises and included in the tenancy. {Hodges v. Law- 
 rence ; GilUngham v . Gimfer ; F erring d Co. v. Emerson.) 
 The last-cited case related to the removal, from a flat, of 
 furniture comprised in a hire-purchase agreement. 
 
 Entry to Levy Distress. 
 
 The methods of entry to levy a distress which are legal or 
 illegal will be found set out under the heading " What Acts 
 do, or do not, amount to Forcible Entries," on p. 65. 
 
122 THE HIRE-PURCHASE SYSTEM. 
 
 If an entry has been effected peaceably, an inner door may 
 be broken open; but an inner dbor, which is a lodger's outer 
 door, may not be broken open in order to distrain the lodger's 
 goods. (American Concentrated Must Co. y. Hendry.) 
 
 Notice of Distress. 
 
 After the bailiff has seized the goods, he should, under 
 sect. 2 of The Distress Act, 1689, serVe the tenant with notice 
 in writing of the distress, but, if such notice is not duly given, 
 the distress is. not illegal or invalid, but the sale will consti- 
 tute an irregular distress. (Wilson v. Nightingale; Trent 
 V. Hunt.) 
 
 Removal of Goods to avoid Distress. 
 
 Sect. 1 of The Distress Act, 1737, giving a landlord power 
 to foUow goods wihich have been clandestinely removed to 
 avoid a distress, only applies where the goods removed are 
 those of the tenant, and not where they belong to a third 
 party. {Thornton v. Adams; Fletcher v. Marillier ; Tom- 
 linson v. Consolidated Credit, dc. Corporation.) 
 
 A method of getting hired goods removed, for the pur- 
 pose of escaping an expected distress whilst an action is 
 pending, is suggested by the unreported case of Moore v. 
 Austin. In the notes to Order L. r. 3, in The Annual 
 Practice, it is stated that in this case, which was an action 
 brought for the return of a piano let on the hire syistem', 
 Scrutton, J., made an order, on the plaintiffs' ex parte appli- 
 cation, appointing the plaintiffs receivers for safe eustodiyi 
 of the piano, then in the defendant's possession, until after 
 the hearing of a summons for the delivery up of the piano. 
 
 Impounding' — Rescue — Poundbreach. 
 
 After seizure, it is necessary to " impound " the goods dis- 
 trained. For this purpose they may be taken off the pre- 
 mises, but it is provided, by sect. 10 of The Distress Act, 
 
DISTRESS FOR RENT, RATES AND TAXES. 12:3 
 
 1737, that a landlord may " impound or otherwise secure the 
 distress" upon the premises. 
 
 It is by no means certain as to what is meant by an im- 
 pounding on the premises under The Distress Act, 1737. 
 There is no direct authority upon ;the point. In most of 
 the pases, the fact of impounding seems to have been assumed, 
 and the question whether what has occurred amounted to a 
 legal impounding has not been definitely decided. 
 
 According to Washborn v. Black and Woods v. Durrani, 
 the only strict!}' correct method of impounding on the pre- 
 mises is for a particular room to be selected, and for all the 
 goods distrained to be locked up in it. In Srrdth v. Ash- 
 forth, Pollock, C. B., said that if goods distrained could not 
 be impounded on the premises without locking up the whole 
 of the premises, and so totally excluding the tenant, the 
 goods should be rem'oved to a proper pound. 
 
 Seizure and impounding are distinct acts, and the land- 
 lord must do something to denote the impounding. The 
 most usual method is to place a man in possession, the goods 
 not being locked up in a separate room', but left in their 
 custoniary positions in the house. Having regard, however, 
 to the judgments in Tennant v Field, it is very question- 
 able whether this is a legal impounding . 
 
 The decision in Jones v. Beirnstein — a "walking posses- 
 sion " case — is usually cited for the proposition that, when 
 the landlord has served the necessary notice on the tenant, 
 the goods are impounded, even if no one is left in possession 
 of them, but an examination of that case will show that it is 
 by no means an authority that what happened there would 
 be a legal impounding as against the owner of hired goods, 
 even if it would be against a tenant, the impounding being 
 rather assumed than decided as a matter of law. 
 
 Having regard to the authorities, it is submitted that a 
 house is only a " pound " when a bailiff is in it, or the goods 
 are locked up together in a room'. The view of the County 
 Court judge, in Jones v. Beirnstein, that, as against the 
 
124 THE HIEE-PUECHASE SYSTEM. 
 
 owner of hired goods, real possession is requisite, seems to 
 be sound and just. 
 
 " Eescue " is a forcible taking, by the owner or his agent, 
 of goods from the custody of the landlord after they have 
 been actually seized {Pool v. Lemn, Craivcour & Co.), but 
 before they have been mpounded. {Iredale v. Kendall.) 
 
 If a distress is illegal (as distinguished from' being merely 
 irregular or excessive) the owner may lawfully rescue the 
 goods before they are impounded {F erring d Co. v. Emer- 
 son); and, if a pound be left open, the owner of g'oods 
 illegally distrained may take them out, since there is no real 
 impounding. (Co. Litt. 47b.) 
 
 Poundbreach may be committed by breaking the pound 
 (of whatever it may consist), or by retaking goods, either 
 with or ^vithout force, after they are impounded. 
 
 When goods are impounded, they are deem^ed to be in 
 the custody of the law, so that poundbreach can never be 
 justified, even though no right to distrain existed (JParrett 
 Navigation Co. v. Stower ; Firth \. Purvis; E. v. Cotton); 
 and forcible rescue, involving a breach of the peace, and 
 poundbreach are indictable common law misdemeanours. 
 
 A landlord cannot bring an action against any person for 
 conversion in respect of poundbreach {Turner v. Ford), but 
 whether the goods are impounded on or off the premises 
 {Firth V. Purvis) a landlord whose rent is in arrear {Berry 
 V. Huckstable), but not the bailiff {Alwayes v. Broome), 
 may, under sect. 3 of The Distress Act, 1689, and sect. 2 of 
 The Limitations Act, 1842, bring a special action in which, 
 without proving special damage {Kemp v. Christmas), he 
 may recover treble damages and full costs against the offen- 
 der, but even if the goods have come back into the possession 
 of the owner, the latter cannot be sued if he was not a party 
 to the poundbreach. {Castl&man v. Hiclcs.) A tender after 
 impounding is no defence to the action. {Firth v. Purvis.) 
 The action is a penal one, and the plaintiff is not entitled to 
 an affidavit of documtents. {Jones v. Jones.) 
 
 The judge has no discretion as to the costs in an action 
 
DISTRESS FOR RENT, RATES AND TAXES. 125 
 
 for poundbreach. (Garnett v. Bradley.) As to the prin- 
 ciples on which the costs of such an action in the County 
 Court are to be taxed, see House Property/ Co.\. Whiteman. 
 
 In case of illegal rescue or poundbreach, the landlord may 
 also follow and retake the goods, wherever they may be, 
 provided he does so without com'mitting a breach of the 
 jDcace, and, in the case of an illegal rescue, upon fresh pur- 
 suit, i.e., without delay. (Rich v. Woolhy ; Turner v. 
 Ford.) ' , ' I ; 
 
 There is no liability for poundbreach, if the distress has 
 been abandoned. (Stoann v. Fakrioiith.) The question of 
 abandonment is one of fact. (Eldridge v Sfaeeij.) As to 
 what is not an abandonment, see the last-mentioned case, 
 and also Bannister v. Hyde and Kerhy v. Harding. In 
 Russell V. Rider, the fact that the man in possession left, 
 and the landlord did not attempt to re-enter for six days, 
 was held to be evidence that the distress had been abandoned. 
 
 Costs of Distress. 
 
 The Distress (Costs) Act, 1817, provided a scale of costs 
 and charges to be taken on a distress for rent for a sum' not 
 exceeding £20. This Act has not been repealed {Coster v. 
 Headland), but, according to Walker v. Retter, the scale 
 above mentioned is, in the case of distress for rent, super- 
 seded by the scale in The Distress for Rent Hules, 1888, 
 which also provide a scale applicable where the rent exceeds 
 £20. 
 
 The following cases relate to costs of distress: — Scott v. 
 Denton; R. v. Daly, Ex parte Newson; R. v. Bridport 
 County Court Jmdge ; Rohson v. Biggar ; Lumsden v. Bur- 
 nett (a "walking possession" case); Nott v. Bound. 
 
 Under the Act of 1817, the bailiff must give a copy of his 
 charges, and of all the costs and charges of the distress, 
 signed by him, to the person whose goods are distrained, 
 whether the rent distrained for exceeds £20 or not. This 
 provision does not apply if the goods have not been sold. 
 
126. THE HIRE-PURCHASE SYSTEM. 
 
 {Hills V. Street.) The landlord is not liable under the Act, 
 unless he personally levies or intervenes in the distress. 
 {Hart V. Lmch.) 
 
 Overplus. 
 
 Sect. 1 of The Distress Act, 1689, provides that, after 
 satisfying the rent and expenses of distress and sale, the 
 person distraining shaU. leave the overplus (if any) in the 
 hands of the sheriff, under-sheriff, or constable of the hun- 
 dred, parish, or place, for the owner's use. 
 
 Under the above section, it was held that when a landlord 
 did not leave the overplus in the hands of the sheriff, &c. an 
 action would not lie against him for money had and received, 
 the appropriate remedy being by a special action under the 
 statute, {l^on v. TomMes ; Yates v. Eastioood; Evans ' 
 V. Wriffht.) 
 
 In the last -mentioned case, a landlord, before the sale of 
 distrained goods, had notice from: third parties, the plain- 
 tiffs, to pay over the surplus to them as being the true owners, 
 and there was held to be no conversion on the part of the 
 landlord, who paid the overplus to the tenant and also re- 
 turned the unsold goods to hitn; the reasons given being that 
 the surplus should have been paid to the sheriff- and not to 
 the plaintiffs, and that the unsold goods were rightly replaced 
 where they were found. 
 
 By The Parish Constables Act, 1872, so much of The 
 Distress Act, 1689, as requires any sheriff, under-sheriff, or 
 constable to assist at any distress for rent, was repealed, but 
 this does not seem to have affected the law as to the dis- 
 position of the overplus. 
 
 Second Distress. 
 
 As a general rule, a landlord miay not distrain twice in 
 respect of the same rent. As to the circumstances under 
 which he may do so, see the following cases: — HutcMns v. 
 
127 
 
 Chambers; Thtraifes v. ]Vild4ng ; Woolaston v. Stafford; 
 Crosse v. Welch; Grunnell v. Welch. 
 
 Effect of Sale on Owner's Rig:hts. 
 
 jS'othing short of an actual and valid salie will divest the 
 true owner of his property in goods included in a distress. 
 The landlord cannot legally purchase them {King v. Eng- 
 land; Moore, NetUefoM d Co. v. Singer Manufacturing 
 Co.); if he does so and deals with them' as his own, he A^ill, 
 in an action for conversion, be liable to the true owner for the 
 full value of the goods. {Plas-y-Coed Collieries Co. v. 
 Partridge.) 
 
 If goods are sold under an illegal distress, the true owner 
 has a right of action against all parties concerned in the con- 
 version, including the purchaser {Swdth v. Wright); but 
 he has no such right against the purchaser on a, sale under 
 an irregular or excessive distress. (Whitworth v. Smith.) 
 
 The purchaser of a patented article sold under a distress 
 does not acquire the right to use the article in breach of the 
 patent rights. (British Mutoscope, <&c. Co. v. TLomer.) 
 
 Distress for Rates. 
 
 Hired goods are not liable to be seized by virtue of a 
 distress warrant issued, under a public statute, for rates 
 owing by the hirer. Only goods belonging to the person 
 rated can be seized. {Hutchins v. Chambers; Stevens v. 
 Evans. And see Prudential Mortgage Co. v. Marylebone 
 Borough Council, the facts of which are set out, under the 
 heading " Bills of Sale Acts," on p. 4.) 
 
 Under a local Act, it was held that the goods of a lodger 
 might be distrained for rates due from the landlord . {Pep- 
 percorn V. Hofman.) This case may act as a reminder that 
 various local authorities and gas and water companies have 
 power, under their private Acts, to recover rates, and gas and 
 water charges "by the same means as landlords are by law 
 
128 THE HIRE-PUECHASE SYSTEM. 
 
 entitled to recover rent in arrear," without obtaining a jus- 
 tice's Avarrant, and so can distrain and sell hired goods, un- 
 less the provisions of The Distress Act, 1908, are complied 
 with. By means of inquiries from the local authorities, 
 the Author has ascertained that this power exists in Bir- 
 mingham, Coventry, Glossop, and Walsall as to gas charges, 
 in Blackburn, Oldham, and York as to gas and water rates, 
 and in Liverpool as to water rates and rents and other local 
 rates, and as to gas for a small part of the city. Similar 
 powers doubtless exist in many other places. In some cases, 
 the goods only of the person from' whom' the money is due 
 can be seized, and, in others, the goods of an incoming tenant 
 are exempted. Upon the point generally, see Ex parte 
 Harrison, Re Pedke, and the cases there cited. 
 
 Replevin lies for goods improperly taken for rates. (See 
 London d N . W. RaiJkffay^ Co. v. BucJcmaster, and the cases 
 there cited.) 
 
 Distress for Taxes. 
 
 Hired goods are liable to be distrained for taxes, charged 
 upon the premises in which the goods are placed at the time^ 
 of the distress, e.g., property tax, land tax, and inhabited 
 house duty, even though the person by whom the taxes are 
 payable has, on the premises, goods of his own sufficient to- 
 satisfy the distress; but hired goods are not liable to be 
 distrained for taxes charged only upon the person liable and 
 not upon his premises, e.ff., income tax, and taxes in respect 
 of male servants, carriages, dogs, &c. (See sect. 86 (1) of' 
 The Taxes Management Act, 1880; Jusan v. Dixon; 
 Shafteshury y. Russell; and Macgregor v. Clamp.) 
 
 The privilege from' distress which, in the case of distress 
 for rent, is given by The Distress Act, 1888, to the wearing 
 apparel and bedding of a tenant or his family, and the tools 
 and implements of his trade, to the value of £5, does not 
 apply in the case of a distress for taxes, nor are tools or im- 
 plements of trade privileged, by the common law, from such 
 a distress. (Macgi'egor v. Clamp.) Upon the principle of 
 
DISTRESS FOE RENT, RATES AND TAXES. 129 
 
 this case, The Distress Act, 1908, does not apply to a distress 
 for taxes. 
 
 In Reading v. Chew, a lease of premises from Christmas, 
 1896, was granted- to the plaintiff in April, 1897, when he 
 took possession. An assesstoient to property tax under 
 Schedule (A) had been made for the previous year ending 
 oth April, 1897, during which period the premises were un- 
 occupied. The plaintiff was distrained on for the tax, and 
 it was held, by Bruce, J., that no action lay against the 
 collector of taxes. 
 
 A dwelling-house, furnished and ready for habitation, is 
 chargeable to inhabited house duty, even though no person 
 has actiiaUy lived, dwelt, or slept in it during the year of 
 assessment. {Smith v. Dauney.) 
 
 By The Distress (Costs) Act, 1827, it is provided that the 
 provisions and penalties of The Distress (Costs) Act, 1817 
 (which provides a scale of bailiff's charges), shall apply to 
 any distress for taxes, where the sum due shall not exceed 
 £20. As to the costs of distress, see the cases cited under 
 the heading " Costs of Distress," on p. 125. 
 
130 THE HIRE-PURCHASE SYSTEM. 
 
 CHAPTER III. 
 
 LANDLOBDS', MORTGAGEES', AND DEBENTURE HOLDERS' 
 CLAIMS TO FIXTURES. 
 
 The law as to fixtures is of great importance to owners of 
 chattels let out on hire, especially as regarding such articles 
 ■as machinery which, through being attached to buildings, 
 may, by operation of law, cease to be chattels and become 
 fixtures, under which description it is possible they may, to 
 the owner's loss, be taken possession of by the hirer's land- 
 lord or mortgagee. 
 
 Fixtures as between the Landlord of the Hirer's 
 Premises and the Owner of Hired Chattels, 
 
 The general rule as to fixtures is set forth in the maxim, 
 Quicquid plantatw solo, solo cedit, but this has been so 
 relaxed that the present law of fixtures, as between land- 
 lord and tenant, practically consists of exceptions from' the 
 maxim in favour of tenants, with the result that, generally 
 speaking, in the absence of any stipulation to the contrary, 
 all fixtures erected for the purposes of trade, ornament, or 
 domestic use may, subject to certain conditions, be removed 
 by a tenant. 
 
 -Where there is an express covenant as to fixtures, the rights 
 of the parties must depend upon its term's, so that a tenant 
 may lose his right to remove fixtures through entering into 
 the ordinary repairing and other covenants com'monly in- 
 serted in leases (Hitchman v. Walton; Burt v. Haslett ; 
 Metropolitan Covmties Assurance Society \. Brown; Moicats 
 V. Hudson); but if it is intended to restrict the general right 
 
landlords', etc. claims to fixtures. 131 
 
 of the tenant, the language used must be perfectly plain 
 and not leave the matter doubtful. {Leschallas v. Woolf ; 
 Lambourn v. McLellan.) 
 
 If, with a view to taking a new lease, a tenant surrenders 
 an existing lease, then, in the absence of a stipulation to the 
 contrary, he loses his right to remove fixtures, since the 
 surrender prima facie includes fixtures. {Leschallas v. 
 Woolf.) 
 
 Except in the case of agricultural and market garden fix- 
 tures (which are governed by sect. 3 of The Landlord and 
 Tenant Act, 1851, and sect. 21 of The Agricultural Holdings 
 Act. 1908; and see Smith v. Richmond and Mears v. Callen- 
 der), the general rule is that, in order to prevent fixtures 
 being absorbed by the landlord, the tenant must remove thorn 
 during the tenxmcy {LyAe v. Russell), or during such fur- 
 ther period as he justifiably {Bnrffy. Frohyn) holds the pre- 
 mises under a right to still consider himself the tenant. 
 (Weetony. Woodcock; Leader v. Homewood.) 
 
 The only exceptions to the rule that a tenant must, as 
 against the landlord and the latter's new tenant, remove fix- 
 tures during the currency of his tenancy are whei*e there is a 
 stipulation to the contrary in the lease (Stansfeld v. Mayor 
 of Portsmouth ; Sumner v. Bromilow; Ex parte Gould, Re 
 Walker), or where there is a licence, under seal, to enter and 
 sever the fixtures at a future date {Ruffey v. Henderson), or 
 (as against the landlord only and so long only as he is in 
 possession, or the premises are unlet) a special contract. 
 {Thomas v. Jennings.) 
 
 It was held, in Pugh v . Artan, that the rule that a tenant 
 must remove fixtures during the continuance of the tenancy 
 applies even where the landlord has re-entered for breach of 
 ■covenant, but, in In re Glasdir Copper Mines,. Joyce, J., 
 held that since, when a tenant surrenders his lease to the 
 landlord, a mortgagee or purchaser from the tenant has a 
 right to remove fixtures within a reasonable time after the 
 surrender, so where a company had forfeited a lease by pass- 
 ing a resolution for a voluntary winding-up, in which resolu- 
 
 9(2) 
 
132 THE HIRE-PURCHASE SYSTEM. 
 
 tion debenture holders did not concur, the latter had a similai*-' 
 right to remove fixtures within a reasonable time. 
 
 It is submitted that the position of an owner of chattels- 
 let on hire to a tenant ought to be quite as good as that of the 
 tenant's purchaser, mortgagee, or debenture holders, and- 
 that, therefore, if the tenancy comfes to an end suddenh-, 
 the owner will be entitled to remove the chattels within a 
 reasonable time afterwards . 
 
 The above submission, however, was not adopted in 
 British Economical Lamp Co. 'v. Ewqnre Mile End, where- 
 the plaintiffs let electric light filament lamps on hire to the 
 lessees of a theatre. The lamps were affixed to their brackets 
 by the bayonet attachment in common use for this purpose. 
 The defendants, who were the owners of the theatre, re- 
 entered for non-payment of rent, the lamps being then still' 
 on the premises. Shortly afterwards, the plaintiffs claimed 
 the lamps from the defendants and, as the latter did not give 
 them up, brought an action in detinue, but it was held, by a ' 
 Divisional Court (distinguishing Ex parte Asthury, Re 
 Richards), that the plaintiffs were not entitled to recover,, 
 either in detinue or for conversion. 
 
 This decision does not seem' to be satisfactory, because if' 
 the lamps were fixtures they would appear, on the principle 
 of In re Glasdir Copper Mines, to have been removable by 
 the plaintiffs, and if they were merely chattel's which had 
 never become fixtures, they were removable either during- 
 or after the determination of the tenancy, and an action in 
 detinue or for conversion ought to have been successful.. 
 (Anthony v. Haney ; Thorogood v. Robinson; Ruffey v.. 
 Henderson.) 
 
 If the landlord has mortgaged the premises but, as between 
 the landlord and the tenant, the tenant has the right to- 
 remove fixtures, the right can be enforced against the land- 
 lord's mortgagee (Sanders v. Davis, approved in Gough v. 
 Wood), so long as the removal takes place during the ' 
 tenancy. (Thomas v. Jennings.) 
 
 Prom- the foregoing, it will be seen that when an owner 
 
landlords', etc. claims to fixtures. 133 
 
 lets on hire, to a tenant, chattels which are intended to be 
 iixed to the premises, it would, for the purpose of safeguard- 
 ing the owner's rights, be desirable to get the landlord to 
 ■concur in the agreement, as was done in Gough v. Wood. 
 The terms of the agreement with the landlord might be 
 •drawn upon the lines suggested below in the case of an agree- 
 zaent between an owner of hired chattels and the mortgagee 
 of a hirer's own premises. 
 
 Fixtures as between the Mortgagee of the Hirer's Own 
 Premises and the Owner of Hired Chattels. 
 
 Any sale or mortgage of, or charge on, premises belong- 
 ing to a hirer will, without their being mentioned, have the 
 same effect (upon fixtures affixed to the j)remis6s as it has 
 upon the premises. This rule applies to fixtures affixed after 
 the date of the mortgage or charge, and also to substituted 
 fixtures . 
 
 The question whether the owner of hired chattels, which 
 liave been affixed to premises belonging to the hirer in such 
 a way as to have become fixtures, is, as against a mortgagee 
 of the premises, entitled to remove the chattels depends, 
 according to the circumstances of the particular case, upon 
 whether the mortgage is a legal or an equitable mortgage; 
 ■U'hether the mortgagee took his security with notice of the 
 existence of the hire-purchase agreement ; whether the mort- 
 gagee has, or has not, entered into possession of the mort- 
 gaged premises ; and whether or not there has been an actual 
 •or implied assent on the part of the mortgagee to the removal 
 •of the chattels . These points will be elucidated by the cases 
 to be now considered. 
 
 In Cumberland, dc. Co. v. Maryport, a limited company, 
 who were lessees of a colliery for a term of fifty years, in 
 1883 demised it to their bankers, by way of legal mortgage, 
 together with all fixed machinery and machines then stand- 
 ing or thereafter to stand upon the mortgaged premises. In 
 July, 1889, the company entered into an agreement with 
 certain vendors for the erection by them at the colliery of a 
 
134 THE HIRE-PURCHASE SYSTEM. 
 
 machine. The purchase-money for the machine was to be 
 paid by anonthl)- instalments, and it was also provided that, 
 imtaodiately on the vendors receiving payment of 'the 
 balance, the machine should become the property of the com- 
 pany, but that, until fully paid for, it should remain the 
 property of the vendors. The machine was erected and 
 commenced working in August, 1890. The company paid 
 the first two instalm'ents of the purchase-money, but failed 
 to pay any further instalments. In February, 1891, the 
 bankers brought an action to enforce their security, and a 
 receiver was appointed, who entered into possession of the 
 colliery and the plant, including the machine erected by the 
 ^■endors. The vendors gave notice of motion, in the mort- 
 gagees' action, asking for leave to rem'ove the machine, which 
 was granted. 
 
 In Gough v . Wood, one Edmonds held some land on lease 
 from a person named Moon. Edmonds was a nurseryman, 
 and he carried on business on the land in question. By an 
 agreement in writing dated the 1st of November, 1889, and 
 made between Edmonds, the defendants, and Moon, the 
 defendants agreed to put up some hot water apparatus for 
 Edmonds for £96 19s., payable by quarterly instalments. 
 It was agreed that the apparatus should be hired by Edmonds 
 for a year, that until payment of the last instalment the 
 apparatus should remain the exclusive property of the de- 
 fendants, and that in default of payment they should be at 
 liberty to enter and remove the apparatus. The agreement 
 further stated that Moon joined in the agreement for the 
 express purpose of giving the defendants power to enter and 
 remove the apparatus pursuant to the agreement, and that 
 Moon agreed not to distrain upon the apparatus to the detri- 
 ment of the defendants. Upon payment of the whole of the 
 instalments, the apparatus was to become the {)roperty 
 of Edmonds. On the 12th November, 1889, Edmonds 
 executed a legal mortgage of his land to the plain- 
 tiff, who had no notice of the hire-purchase agreement. 
 Shortly afterwards, whilst Edmonds was in possession, the 
 
landlords', etc. claims to fixtures. 135 
 
 defendants, who had no notice of the mortgage, put up the 
 hot -water apparatus. After this, the plaintiff made 
 Edmonds a further advance, but whether with or without 
 notice that the apparatus had been put up did not appear. 
 Edmonds made default in paying the instalments under the 
 hire-purchase agreement, and the defendants thereupon en- 
 tered and r,e!moved the apparatus. This was done while the 
 mortgagor was stiU in possession. The mortgagee then 
 brought this action a'gainst the defendants for wrongfullj: 
 removing part of the property mortgaged to him, but the 
 Court of Appeal held that the mortgagee must be taken to 
 have given implied authority to the mortgagor to agree to 
 the removal of the apparatus by the defendants, and therefore 
 could not maintain an action against the latter for such 
 removal. 
 
 In EEis V. Glover, a mortgagor executed a legal mort- 
 gage to the plaintiff of freehold premises, and all fixtures 
 then or thereafter to be affixed to the premises, and cove- 
 nanted not to remove the fixtures without the plaintiff's 
 written consent. The mortgagor remained in possession, and 
 afiixed to the premises certain trade fixtures, which he had 
 obtained under a hire-purchase agreement made with the 
 defendants, by the terms of which the defendants, as between 
 themselves and the mortgagor, became entitled to remove, 
 and did remove the same while the mortgagor was still in 
 possession. The mortgagee brought an action against the 
 defendants to recover damages for such removal, and proved 
 that the value of the property mortgaged to him had been 
 depreciated by the removal and his security diminished, and 
 it was held, firstly (by the m'ajority of the Court of Appeal), 
 that, as a general rule, no authority ought to be implied from 
 a mortga^gee to a mortgagor in possession to remove trade 
 fixtures afiixed to the mortgaged premises; and, secondly 
 (by aU the members of the Court), that, whatever the general 
 rule might be, the express covenant by the mortgagor against 
 removal precluded the implication of any such authority in 
 that case. 
 
136 THE HIRE-PURCHASE SYSTEM. 
 
 After the decision in Oough v. Wood, it was generallj 
 considered that that case was an authority for the proposi- 
 tion that a mortgagee of business premises, by leaving the 
 mortgagor in possession, impliedly authorises him to carry on 
 his business, and to do everything which is usual and proper 
 for that purpose, and, consequently, allows him' to permit 
 the owner of chattels hired by the mortgagor to remove them 
 from the mortgaged premises at any time before the mort- 
 gagee enters into possession. It appears, however, from' the 
 decision of the Court of Appeal in Huddersfield Banking 
 Co., LimdtedY. Lister and the decision of the majority of the 
 Court of Appeal in Ellis v. Glover, that the above proposi- 
 tion, based on Gough v. Wood; is unfounded, and that the 
 law is that a mortgagor in possession is not entitled to remove 
 fixtures, except in cases where the assent of his mortgagee 
 to his so doing can be im'plied; and that, as a general rule, 
 no authority ought to be implied tfrom a mortgagee to a mort- 
 gagor in possession to remove trade fixtures affixed to the 
 mortgaged premises, but the question must be determined 
 upon the circumstances of each particular case. 
 
 It is of importance to note that, according to the judgment 
 of Farwell, L. J., in EUis v. Glover, the rule that a mort- 
 gage of premises will pass the fixtures does not necessarily 
 prevent the mortgagor, while in possession, from dealing 
 with such fixtures, since, if the mortgagee does not take pos- 
 session, he would fail to obtain an injunction to restrain the 
 removal of the fixtures, unless he proved that his security 
 was deficient or would become so by such removal. 
 
 In Lyon v. London City^ and Midland Bank, Limited, 
 an action was brought for the recovery of certain chairs, 
 alleged to be the property of the plaintiffs, which were placed 
 in the Brighton Hippodrome, of which building the defen- 
 dants were legal mortgagees. The plaintiffs had let on hire 
 to the owner and occupier of the Hippodrome a number of 
 chairs, the hirer to pay £20 a week for their use and to have 
 the option of purchasing them within three months for £676 . 
 The chairs were constructed on iron frames, each chair being 
 
landlords', etc;, claims to fixtures. 137 
 
 separate, but so made as to be capable of being fastened to 
 ■any other so as to form a row of seats. Each chair had two 
 standards with holes at the feet for screws, and, in accordance 
 with the requirements of the local authority, the chairs were 
 fastened by screAvs to the floor. The hirer, who did not 
 ■exercise his option of purchase, executed a legal mortgage 
 of the Hippodrome to the defendants, together with all the 
 fixtures. The mortgagees having taken possession of the 
 Hippodrome, it was held, by Joyce, J., that the chairs did not 
 pass to the mortgagees. This decision was approved by the 
 House of Lords, in Reynolds v. Ashby, as being correctly 
 decided upon the special facts of the case, the point being 
 that, under the peculiar circumstances of the case, the chairs 
 had not in law become fixtures, but remained chattels. 
 
 In Hohsmi v. Gorringe, a gas engine was let by the plain- 
 tiff under a hire-purchase agreement by which no property 
 would pass to the hirer until the stipulated payments were 
 made. The hirer, who was the owner in fee of a saw-mill, 
 erected the engine on his premises in such a way that, in 
 the opinion of the Court of Appeal, it becam'e part of the 
 freehold. The hirer shortly ^afterwards executed a legal 
 mortgage of the freehold property to the defendant, who 
 had no notice of the agreement, and in a short time became 
 bankrupt. The hirer had not kept up the payments due 
 Under the hire-purchase agreement. After the hirer liad- 
 become bankrupt, the defendant lawfully entered and took 
 possession of the mortgaged premises, together 'with the gas 
 engine which he found there. The plaintiff then brought an 
 action against the defendant to recover the engine, and it was 
 held by the Court of Appeal that the authorities conclusively 
 established that the engine had ceased to be a chattel, and had 
 become part of the freehold, and so passed to the defendant 
 as mortgagee in fee of the hirer's property. 
 
 In Reynolds v. Ashby, the lessee for a term' of years of a 
 factory mortgaged the factory with the fixtures, machinery, 
 and fittings, by an assignment of the whole term to the defen- 
 dants. Subsequently, the lessee obtained from' the plaintiff, 
 
138 THE HIEE-PURCHASE SYSTEM. 
 
 under a hire-purchase agreejneirt, certain carpenter's 
 machines, which were set upi in the factory. By the hire- 
 purchase lagreemtent the property in the machines was to 
 remain in the plaintiff until all the hire instalments were 
 paid, when the property was to vest in the hirer (the lessee of 
 the factory) . The plaintiff was to be at liberty to determine 
 the hiring, and to retake possession of the m'achines, on the 
 happening pf certain events. The defendants having taken 
 possession of the premises under their mortgage, the plain- 
 tiff, on the happening of an event entitling him to retake 
 possession under the hire-purchase agreement, by notice in 
 writing to the mortgagor, determined the hiring, and de- 
 manded the return of the machines, which was refused, by the 
 mortgagees, who claimed the machines as fixtures passing 
 under their mortgage. The plaintiff then brought this action 
 against the mortgagees to recover the machines or their value, 
 and damages for their wrongful detention. At the trial, 
 Lawrance, J., held, upon the authority of Hobson v. Gor- 
 ringe, that the m.achines were fixtures which passed to the 
 mortgagees, and that there was no question for the jury. 
 The plaintiff appealed, and it was held by the Court of 
 Appeal that the machines were so annexed to the land that 
 the presumption was that they were fixtures which passed 
 with the land to the mortgagees, and that the hire-purchase 
 agreement was not evidence to rebut that presutnption. This 
 decision was affirm'ed by the House of Lords. 
 
 In the cases cited above, where the mortgagee of the hirer's 
 premises succeeded in a contest with the owner of chattels 
 let on hire to the mortgagor, the mortgage was a legal mort- 
 gage, and such mortgage either preceded the hire-purchase 
 agreement, or, where the hire-purchase agreement came first, 
 the mortgagee took without notice of such agreement, but, 
 in the case of In re Allen, the hire-purchase agreement pre- 
 ceded the mortgage, which was an equitable mortgage, and, 
 although the mortgagee had no notice of the hire-purchase 
 agreement, the rights of the equitable mortgagee were post- 
 poned to those of the owners of the chattels. 
 
landlords', etc. claims to fixtures. 139 
 
 In this case of In re Allen, machinery, obtained by a 
 company under a hire-purchase agreement, was fixed to its 
 business premises. Subsequently, the company gave to a 
 bank an equitable mortgage o£ its premises . The bank had 
 no notice of the hire-purchase agreement. On default in 
 paymtent by the company under the hire-purchase agreement, 
 the owner of the miachinery gave notice demanding the 
 return of the miaohinery;, and it was held that the bank, being 
 an equitable mortgagee, took subject to the hire-purchase 
 agreement ; that such agreement created an equitable interest 
 by which a subsequent purchaser, who had not the legal estate, 
 was bound ; and that the interest of the bank under its equit- 
 able mortgage was postponed to the interest of the owners 
 of the machinery under the hire-purchase agreemtent. 
 
 hi re Alien was followed in Be Morrison, where trade 
 machinery, consisting of an automatic sprinkler for protec- 
 tion against fire. Was supplied to a com'pany and affixed to its 
 premises under a hire-purchase agreement in respect of which 
 payments became in arrear. Subsequently to the date of 
 the agreement, the company granted debentures by a deed 
 which constituted a floating charge on its business and assets . 
 The trustees for the debenture holders, who were equitable 
 mortgagees, had no notice (other than constructive) of the 
 hire-purchase agreement. A receiver was appointed on 
 behalf of the debenture holders and took possession. On 
 application by sumtaions, the owners of the machinery were 
 authorised to remove it from the company's premises, the 
 trustees for the debenture holders being given an option to 
 keep the machinery on payment of the unpaid balance and 
 the costs, charges, and expenses of the applicants outside the 
 application, as well as the costs of the application. (See also 
 I?i re Maidstone Pahce of Varieties, and Becker v. RieboM.) 
 
140 THE HIRE-PURCHASE SYSTEM, 
 
 Suggestions for the Protection of an Owner against the 
 Claims of a Mortgagee of the Hirer's Own Premises. 
 
 Seeing the risks which an 0A\'iier runs of having his chattels 
 absorbed by a mortgagee of the hirer's own premises, it is 
 desirable to consider what may be done for the owner's 
 jDrotection. 
 
 If the intending hirer states that his premises are not 
 mortgaged, he should be asked to make a statutory declara- 
 tion under The Statutory Declarations Act, 1835, in the "form' 
 given in Part III. of the Appendix, post. Making a false 
 declaration is a misdemeanour, under sect. 5 of The Perjury 
 Act, 1911. 
 
 The hire-purchase agreement should also contain a state- 
 ment that the premises are not mortgaged, and that the 
 chattels are hired upon this express representation. If this 
 representation should turn out to be untrue, the hirer would 
 be liable to a criminal charge of obtaining chattels by false 
 pretences, under sect. 88 of The Larceny Act, 1861. 
 
 The hire-purchase agreement should further contain an 
 undertaking by the hirer not to mortgage his premises 
 without the consent of the owner, and also an undertaking 
 to give to the owner a month's notice of any proposed mort- 
 gage, with fuU particulars. The above suggested provisions 
 are included in the clause in Part III. of the Appendix. 
 
 If, after receiving notice of the proposed mortgage, the 
 owner objected to its going through, but the hirer persisted, 
 there would be a breach of the hire-purchase agreement, and 
 the owner would be able to protect himself by removing the 
 chattels before the mortgagee could acquire the right to take 
 possession of the miortgaged premises. The owner could 
 jarevent the mortgagee taking such proceedings against him 
 as those in 'Ellis v. Olover by giving notice of the hire- 
 purchase agreement to the proposed mortgagee, before the 
 execution of the mortgage. 
 
 If, on the other hand, the owner were willing for the pro- 
 posed mortgage to proceed, he might get clauses inserted in 
 
landlords', etc. claims to fixtures. 141 
 
 the mortgage in the form set out in Part III . of the Appen- 
 dix, and notice of the hire-purchase agreement should be 
 endorsed on the mortgage. The proposed covenant by the 
 mortgagee would estop him from claiming the hired chattels 
 as fixtures, and, being a negative covenant, would run with 
 the land, and would be notice to any purchaser, or transferee, 
 from the mortgagee. (Hohson v. Gorringe; In re Nisbet 
 and Potts.) 
 
 If a mortgage should be in existence at the time of the 
 proposed hire-purchase agreement, the mortgagee should 
 enter into an agreement, under seal, with the owner of the 
 chattels, upon the lines of the clauses in Part III. of the 
 Appendix, and notice of- such agreement, and of the hire- 
 purchase agreement, should be endorsed upon the mortgage. 
 
 When the intending hirer is a company, the provisions 
 of The Companies (Consolidation) Act, 1908, should be 
 borne in mind. Sect. 100 of that Act requires every com- 
 pany to keep a register of all mortgages and charges speci- 
 iically affecting property of the company, and such register 
 is, under sect. 101, open to inspection by any person. 
 Sect. 93 of the Act also provides for the filing, at Somerset 
 House, of particulars of certain mortgages and charges men- 
 tioned in that section. 
 
142 THE HIRE-PURCHASE SYSTEM. 
 
 CHAPTEE IV. 
 
 CIVIL PROCEEDINGS BY OWNER AGAINST HIRER AND THIRD 
 
 PARTIES, INCLUDING DETINUE, CONVERSION, ILLEGAL 
 
 DISTRESS, AND TRESPASS TO GOODS. 
 
 The principal actions which an owner will find it necessary' 
 to institute will be actions against hirers for liquidated 
 money claims and claims for breaches of agreement; actions 
 against hirers and third parties, including second-hand 
 dealers, and other purchasers, and pawnbrokers, for detinue, 
 conversion, and trespass to goods; and actions against land- 
 lords, bailiffs, and other agents, for illegal, irregular, and 
 excessive distress. 
 
 ACTION IN DETINUE. 
 General Principles. 
 
 "Detinue" is the old technical name given to an action 
 brought to recover the possession of personal cha.ttels wrong- 
 fully detained by the defendant. The main and principal 
 object of the action is to obtain the actual return of specific 
 goods. 
 
 Plaintiff's Title. 
 
 In order to maintain an action in detinue, the plaintiff 
 must have a right of property in the goods detained {e.g., as 
 owner or hirer), together with a right of present possession, 
 and, unless both these rights concur, the action will not lie. 
 {Gordon v. Harper ; Gledstone v. Hemtt ; Lord v. Price; 
 Nyburg v. Handelaar; Jetks v. Hay ward; Attenborough 
 ^r. Solomon.) ' 
 
CIVIL PROCEEDINGS BY OWNEK. J 43 
 
 Mere possession (whether rightful or wrongful) is suffi- 
 cient to maintain an action ,a,gainst a wrongdoer who possesses 
 no title in himself, and therefore, if the plaintiff was in 
 possession of the goods at the date of the wrongful act, the 
 defendant cannot set up as a defence a jus tertii {i.e., the 
 title of a third party) unless he claims and proves to have 
 acted under it. {Armory v. Delamirie ; Jefferies v. Great 
 Western RUf. Co.; Barker v. Furlo)iff ; The WinhfieJd; 
 Glenwood Livmiber Co. v. PhilMps.) 
 
 In Burton v. Hughes, the plaintiff, who was a bailee of 
 furniture, was held to be entitled to sue wrongdoers who liad 
 seized it, without giving in evidence the written agreement 
 under which he held it. 
 
 If the plaintiff was not in possession of the goods at the 
 date of the alleged wrongful act, the defendant miay set up a 
 jus tertii, oven though he does not claim' under the third 
 person, and the onus is then on the plaintiff to prove his right 
 to the possession of the goods. {Leake v. Loved ay ; Gads- 
 den V. Barrow ; Richards v. Jenkins.) 
 
 But, as a general rule, a bailee {e.g., a hirer) is personally 
 estopped from' denying the title of his bailor. He cannot, 
 therefore, as a defence to an action by the latter, set up a 
 jus tertii, unless he claims and proves that he has acted under 
 it, and is defending upon the right and title and by the 
 authority of the third party; or unless the bailment has 
 been determined by what is equivalent to an eviction by 
 title paramount {Biddle v. Bond; Rogers v. Lambert; 
 Henderson v. Williams), and even in these circumstances 
 he will probably be liable on his contract of bailment . (Ross 
 v. Edwards.) 
 
 Moreover, if a bailee accepts the bailment with full know- 
 ledge of an adverse claim', he cannot afterwards set up the 
 existence of such claim, as against his bailor. {Ex parte 
 Davies, Re Sadler.) 
 
 As will be seen from the foregoing remarks, the chief 
 essential to the right of an owner of hired goods to bring an 
 action in detinue is that he must have the right to the imme- 
 
144 THE HIKE-PURCHASE SYSTEM. 
 
 diate possession of the goods, through the hiring having 
 determined in some way. 
 
 When a bailee does an act ■wholLj inconsistent with the 
 contract of bailment {e.g., sells the goods), so that it must 
 be taken from his doing it that he has renounced the contract,, 
 the hiring is determined. But where the act, though un- 
 authorised, is not so repugnant to the contract as to show 
 a renunciation o£ it, the law is otherwise. (JDonaM v. Suck- 
 Ung.) 
 
 Demand and Refusal. 
 
 Tlie gist of an action in detinue is the detainer, i.e., the 
 wrongful refusal of a demand for the goods, and a plaintiff 
 cannot succeed in such an action unless he proves that the 
 defendant (whether a bailee or not) wrongfully refused tO' 
 deliver up the goods, when demanded prior to the commence- 
 ment of the action. (Gledstone v. Hewitt ; Jones v. Dowle ; 
 Wilkinson v. Verity; Clayton v. Le Roy.) 
 
 After the determination of a bailment, the bailor can,, 
 without any demand on the bailee, bring an action to re- 
 cover damages for breach of contxact to redeliver the goods, 
 if the contract of bailment contains an undertaking to re- 
 deliver; but, even if the contract does contain such an under- 
 taking, the bailor cannot bring an action in detinue until, by 
 a demand of, and a refusal or neglect to return, the goods, 
 the breach of contract is turneid into a wrongful detainer. 
 In other words, " what begins in contract, a non-performance 
 of what the party undertakes to do, or a bare non-delivery 
 of what he undertakes to deliver, is not to be considered as- 
 of itself a tortious conversion." {Cullen v. Barclay.) 
 
 The intended defendant should, before any action in 
 detinue is commenced, be served with a notice of demand 
 in writing in the form and manner set out on p. 76 of 
 Chapter I. 
 
 An express or implied refusal of the demand, before 
 action, must be shown. (Clayton v. Le Roy.) A refusal 
 wiU be implied on the ground of the defendant's silence or 
 
CIVIL PROCEEDINGS BY OWNER. 145 
 
 non-compliance with the demand. (Anthony v. Eaney ; 
 Watkins v. WooUeij ; Wilson v. Andcrton; Burroicghes v. 
 Bm/ve.) 
 
 Action ag^ainst Hirer. 
 
 In an action in detinue, different considerations will apply; 
 according to whether the action is brought against the hirer 
 himself or against a third person to whom the hirer has dis- 
 posed of the goods. 
 
 If the action is against the hirer himseK, after the termina- 
 tion of the hiring, the procedure is simple. 
 
 A hirer (except an infant) is liable in detinue under his 
 contract of bailment, so that, in such an action, it is no 
 defence for the hirer to show that the goods were not in his 
 possession when demanded, if he has wrongly parted with 
 or lost them. (Jones v. Doivle ; Reeve v. Palmer ; Bristol, 
 &c. Bank v. Midland Ely. Co.) 
 
 The last-quoted case also shows that, although an altera- 
 tion has taken place during the hiring in the ownership of 
 the goods, no defence is afforded by the fact that the wrong- 
 ful act of the hirer was done before the new owner becamfe 
 entitled to the goods . 
 
 As to whether it is necessary to prosecute a hirer before 
 suing him in detinue, see the notes under the heading " Prose- 
 cution of Hirer " on p. 78. 
 
 Action against Hirer's Transferee. 
 
 If, instead of the action being brought against the hirer, 
 it is brought against a person who has purchased or lent 
 money on the security of the goods, complicated questions 
 may arise. 
 
 If the hirer does an act wholly inconsistent with the con- 
 tract of bailment (such as selling the goods), the hiring is 
 thereby "determined (Bryant v. War dell; Fenn v. Bit- 
 tleston; Nyburg v. Handxlaar), and until the passing of 
 The Factors Act, 1889, and The Sale of Goods Act, 1893, 
 
 10 
 
146 THE HIRE-PURCHASE SYSTEM. 
 
 tlie universal rule was that the true owner of the goods 
 might, in such a case, sue the purchaser in detinue or for 
 conversion, oven though the purchase was bond fide {Cooper 
 V. Wiltomatt ; Loeschman v. Machin), unless the goods had 
 been sold in irtarlcet overt, and the hirer had not been con- 
 victed. I 
 
 But, according to the decisions considered in Chapter I., 
 sect. 9 of The Factors Act, 1889, and sect. 25, sub-sect. 2 
 of The Sale of Goods Act, 1893, give a good title to anj 
 person who, in good faith and without notice of the owner's 
 rights, under any sale, pledge, or other disposition thereof, 
 obtains from' a hirer goods held by the latter under a hire- 
 purchase agreement, which is in such a form that it makes 
 the hirer a person "who has agreed to bujr " within the 
 meaning of the Acts, and, consequently, in such a case, the 
 owner cannot recover the goods from the purchaser, or sue 
 him for damages. 
 
 If goods are let on hire under an agreement in the form of 
 the first Precedent in the Appendix, which does not amount 
 to a contract on the part of the hirer to buy, then, if the 
 hirer wrongfully dispose of them, the old law will apply, 
 and the owner will be entitled to recover the goods from the 
 person who obtains them from the hirer, unless the goods 
 have been sold in market overt, and the hirer has riot been 
 convicted . 
 
 For notes upon the law of market overt, see p. 16. 
 
 Damages. 
 
 The owner of a chattel, who is wrongfully deprived of its 
 use, may recover substantial damages for the deprivation, 
 although he may have incurred no out-of-pocket expenses 
 consequent thereon. (The Medianu. See also The Mar- 
 pessa; The BodleioeU; The Astrakhan; and The Tugela.) 
 
 If the goods are returned after action brought, the action 
 will proceed at the plaintiff's peril, and, unless he recovers 
 substantial damages, he will have to pay the costs of the 
 
CIVIL PROCEEDINGS BY OWNER. 147 
 
 action subsequent to the return of the goods. {Hiort v. 
 L. d N. W. Railway Co.; Forster v. Farquhar.) On the 
 goods being given up, the Court may stay the action on such 
 terms as it thiuks fit {Tuclier v. Wright), but it will not do 
 ^0 where special damage is claimed. (Bodley v. Reynolds.) 
 The damages may include not only those for the original 
 wrongful detention, but also damages for all subsequent 
 wrongful detention until re-delivery. (Serrao v. Noel.) 
 
 Exemplary Damages. 
 
 The juiy, in estimating the damages, may take into con- 
 sideration all the circumstances attending the committal of 
 the wrong-^expressions used, insulting circumstances, high- 
 handed action, &c. — and may give exemplary damages from 
 the character of the wrong and the way in which it was done . 
 (Emblen v. Myers ; Bell v. Midland Baihaay Co.) 
 
 The doctrine of exemplary damages, which is founded on 
 malice, does not apply to cases where the person sued is not 
 the actual wrongdoer, but is only responsible on the ground 
 of respondeat superior {Black v. North British Ecdlivay.) 
 
 Special Bamage. 
 
 Special damage is recoverable, if claimed and proved. 
 (Crossfield v. Such; Peruvian Guano Co. v. Dreyfus.) 
 
 As compared with "general damage," "which denotes the 
 damage which the law assumes to be the natural or probable 
 consequence of the defendant's act, "special damage" de- 
 notes that damage arising out of the special circumstances of 
 the case which, if properly pleaded, may be superadded to 
 the general damage which the law implies in every breach of 
 a contract and every infringement of an iabsolute right. 
 (Batcliffe v. Evans.) 
 
 The principle upon which special damage is recoverable is 
 explained in France v. Gaudet. (See also Thurston v. 
 
 Charles.) 
 
 10(2) 
 
148 THE HIRE-PUECHASE SYSTEM. 
 
 In Bodley v. Reynolds (approved in Wood v. Bell), ia 
 an action for conversion of carpenter's tools, the plaintiff 
 obtained judgment for £10 for the value of the tools, and 
 £10 as -special damage. (See also Davis v. Oswell, where 
 the expense of hiring other goods was recovered as special 
 damage; and Beckett v. Tower Assets Co., an action for 
 trespass and conversion of tools and furniture. 
 
 General damage need not be alleged or proved, but special 
 damage must be alleged and proved, both in the High Court 
 and County Court. (RatcUffe v. Evans.) 
 
 Particulars of special damage will be ordered, but not 
 particulars of general damcage. (Sec the notes to Order XIX. 
 r. 6, in The Annual Practice.) 
 
 Statute of Limitation. 
 
 Under sect. 3 of The Limitation Act, 1623, an action in 
 detinue must be brought within six years after the cause of 
 action arises. 
 
 The Court rule, that acts to be done on a Sunday may 
 be done on the day on which the offices may next be open,, 
 has no effect on the operation of The Limitation Act. 
 (Geimmi v. Moriggia.) 
 
 Although a bailee may have converted the goods, and an 
 action for conversion against him' would be barred, yet he 
 cannot set up The Limitation Act in an action of detinue^ 
 notwithstanding the fact that the goods are not in his posses- 
 sion. (Granger v. George ; Wilkinson v. Veriti/ ; Spackman- 
 V. Foster; Miller v. Dell.) 
 
 HIGH COURT PRACTICE IN DETINUE. 
 
 In the following notes, it is proposed to direct attention ta 
 some points of practice which are of importance to an owner 
 of hired goods who is endeavouring to recover them in specie 
 from a person who is wrongfully detaining them'. 
 
CIVIL PROCEEDINGS BY OWNER. 149 
 
 Preservation or Inspection, &c. of Chattels. 
 
 Order L. r. 3, relating to the detention, preservation, and 
 inspection of property which is the subject of an action, may 
 sometimes be found very useful. As to the intention and 
 scope of this rule, see Chaplin v. Bamett, and Coomes v. 
 Ray ward. 
 
 In the notes in The Annual Practice to the above rule, it 
 is stated that in an unreported case of Moore v. Austin, 
 which was an action brought for the return of a piano let on 
 the hire system, Sorutton, J. (in chambers, on the 14th June, 
 1910), made an order, on plaintiffs' ex parte application, 
 under the above rule, appointing the plaintiffs receivers for 
 safe custody of the piano, then in the defendant's possession, 
 until after the hearing of a summons for the delivery up of 
 the piano. 
 
 This procedure may be usefullj^ adopted in an action in 
 detinue against a hirer who is the tenant of the premises in 
 which the chattels are placed, if it is anticipated that, before 
 judgment can be obtained, the chattels may be seized under 
 a distress froBi which they would not be privileged. 
 
 It is also conceivable that the assistance of the rule might 
 be invoked for the purpose of enabling a plaintiff, when the 
 identity of the chattels is somewhat doubtful, before much 
 expense has been incurred, to determine whether chattels in 
 the possession of the defendant and alleged to belong to the 
 plaintiff are really the property of the latter or not. 
 
 Payment into Court. 
 
 In an action of detinue, money may be paid into Court, 
 under Order XXII., in respect of the damages claimed for 
 the detention (Cross field v. Such), but not in respect of the 
 claim for the return of the goods or their value. (Eherles 
 Hotels y. Jonas.) 
 
150 THE HIKE-PUKCIIASE SVSTEM. 
 
 Form of Judgment. 
 
 The form of the judifment and its effects are the most im- 
 portant points in an action in detinue. 
 
 The judgment may be signed either in default of appear- 
 ance or defence, or after trial. 
 
 Rules J, 6, and 7 of Order XIII. prescribe the special pro- 
 cedure in case of default of appearance, and Rules 4, 5, ahid 
 6 of Order XXVII. in case of default of defence. 
 
 Forms of judgment in default have been prescribed . The^, 
 will bo found in Appendix F to The Supreme Court Rules 
 in The Aimual Practice, and, in connection with them, the 
 provisions of sect. 16 of The Bankruptcy Act, 1913, as to 
 " final orders," should be noted. 
 
 The ijractice on signing judgment in default and enforc- 
 ing the same by a writ of delivery is vcr}- complicated, and 
 the rules above mentioned, with the notes thereto in The 
 Annual Practice, should be referred to for details. 
 
 The forms of judgment, in default do not provide for the 
 costs of the action if the plaintiff does not proceed to have 
 the value of the chattels and the dama,ges assessed, a course 
 which he need not {H^/mas v. Offden) and probably would 
 not adopt where, as is usually the case, he wishes to issue a 
 writ of delivery in order to obtain possession of the chattels 
 themselves. The costs of the writ of delivery are, under 
 the same circumstances, not provided for. In order to secure 
 the costs in question, the procedure would appear to be, on 
 the principle of In re Fisher and Dartford Brewery v. Mose- 
 ley, to apply on summons, under sect. 5 of The Judicature 
 Act, 1890, for an order for taxation and payment by the 
 defendant . 
 
 There is no prescribed form of judgment after trial, but 
 such judgment (after reciting the certificate of the associate) 
 is to the following effect: — 
 
 ThereforSj it is adjudged that the plaintiff do have a return 
 of the said chattels in the statement of claim mentioned and 
 described as [descri-ption of chattels'], or do recover against the 
 
CIVIL PROCEEDINGS KV OWNEK. 15] 
 
 defendant £ , their value, and do also recover against the 
 
 defendant £ , for damages for the detention of the said 
 
 chattels, and costs to be taxed. 
 
 It is often stated that a judgmtent in detinue gives the 
 defendant the option of returning a chattel or paying its 
 value. This is not correct. It is at the option of the plain- 
 tiff to require, not of the defendant to offety the chattel itself 
 or its value, and that this is the legal effect of the judg-ment 
 is made absolutely clear by the judgments in Btirrojughes v. 
 Bayne; Eberles Hotels v. Jomis ; Trotter v. Windham; and 
 Hymas v. Ogden. 
 
 The form of judgment after trial in an action of detinue, 
 which is based on the com'mon law only, seems to be defec- 
 tive in several respects, and does not give the plaintiff all the 
 remedies to which he is entitled, and the same remarks apply 
 to the form of judgment to be signed in default of appear- 
 ance or defence. 
 
 In order that the judgment may be enforced by attach- 
 ment, in case the writ of delivery proves abortive, it ought 
 to contain an express direction that the defendant shall de- 
 liver the specific chattels to the plaintiff. This was done in 
 Petre v. Ferrers, and is clearly contemplated b}' the forms 
 of the writ of delivery. 
 
 The judgment should also limit the time in which the 
 chattels are to be delivered. (Order XLI. r. 5.) 
 
 The judgment should, in fact, be a combination of the 
 form of decree for delivery up of specific chattels used by 
 the old Court of Chancery (compare Wood v. Rowcliffe, a 
 case relating to ordinary household furniture) and the old 
 common law judgment in detinue. (See Hymns v. Ogden, 
 where Collins, M.E,., said: "It seems perfectly clear to me 
 that, in a common law action of detinue, the High Court has 
 power to order a defendant to hand over the specific goods 
 in question, and that if he wilfully disobeys that order to 
 commit him for such disobedience.") 
 
 The judgment, in an action in detinue against a hirer, 
 
152 THK HIKE-PUKCHASE SYSTEM. 
 
 ought also to provide for a liquidated claim, as, in such an 
 action^ there will generally be a claim for arrears of hire rent. 
 
 A plaintiff seems entitled, according to the authorities, to 
 include all the above matters in the judgment. 
 
 Having regard to the above observations, the judgment 
 after trial should read as follows (and the judgment in 
 default of appearance or defence might be amended to the 
 same effect) : — 
 
 Therefore, it is adjudged that the plaintiff do have a return 
 of the said chattels in the statement of claim jnentioned and 
 described as [description of chattels], or (if the said chattels 
 cannot be found) do recover against the defendant £ , 
 
 their value, and do also recover against the defendant £ , 
 
 for damages for the detention of the said chattels. 
 
 And it is further adjudged that the plaintiff recover against 
 the defendant £ [i.e., the amount of the liquidated claim] 
 
 and costs to be taxed. 
 
 And it is ordered that the defendant do return the said 
 chattels to the plaintiff on the day of , 19 , or 
 
 subsequently within four days after service of this judgment. 
 
 In order to ground proceedings for attachment, which are 
 often found very effective in securing the delivery up of 
 chattels, the judgment and the copy of it served on the defen- 
 dant should, under Order XLI. r. o, be endorsed with the 
 following memorandum: — 
 
 "If you, the v?-ithin-named A. B., neglect to obey this judg- 
 ment [or, order] by the time therein limited, you will be liable 
 to process of execution for the purpose of compelling you to 
 obey the same judgment [or, order]." 
 
 According to Pawly v. Roily and Sandford v. Alcoek, 
 where several chattels are detained and an assessment of their 
 value is made, the value of each should be separately assessed, 
 in case some of them cannot be found. 
 
 The writ of delivery is obtained under Order XL VIII. 
 r. 1. Under this rule, the Court has a discretion as to the 
 issue of the writ, but practically it is issued as a matter of 
 course. 
 
CIVIL PUOCEEDINGS BY OWNER. lo'S 
 
 The writ might be refused if there were evidence that the 
 chattels were not in the defendant's possession or had been 
 destroyed, but, except for some such reason, it is difficult to 
 see on what ground the -writ could be refused, particularly 
 having regard to the judgments in Eberles Hotels v. Jonas 
 and Trotter v. Windham. 
 
 A writ of assistance will be required if the writ of de- 
 livery does not produce the chattels. (Wyman v. Knight, 
 followed in Re Taylor.) 
 
 Instead of the above writs, a plaintiff may have a writ 
 of delivery providing in the alternative for the return of 
 the chattels or, if they cannot be found, the levying' of their 
 assessed value together with the levying, in either case, of 
 damages and costs. The plaintiff may have a separate writ 
 of ^. fa. for damages and costs. 
 
 If a writ of delivery does not have the effect of producing 
 the return of the chattels, attachment and sequestration may 
 be resorted to, even while the writ of delivery stands unexe- 
 cuted — the remedies are not alternative, but accumulative. 
 (Hymas v. Ogden.) 
 
 In an action against husband and wife jointly, both may 
 be attached for wilful disobedience to a judgment for de- 
 livery up of specific chattels. (Be Turiibull.) 
 
 Costs. 
 
 In Turner v. StalUbrass,. it was held that an action by a 
 bailor against a bailee for reward, for a breach of his common 
 law duty to keep safely the thing entrusted to his care (as 
 distinguished from' an action for a breach of an undertaking 
 in the contract of bailment) was an action of tort, within 
 sect. 116 of The County Courts Act, 1888. 
 
 In Bryant v. Herbert, it was held that an action of detinue 
 is an action founded upon tort, but, according to Du Pasquier 
 V. Oadbury and Trotter v. Windham, where, in a High 
 Court action in detinue, jjudgtaent is obtained for the return 
 of the specific goods, or they are handed over in the course 
 
154 THE HIRE-PURCHASE SYSTEM. 
 
 of the action through the exigency of the writ, the action is 
 outside sect. 116 of The County, Courts Act, 1888, altogether, 
 and the plaintiff is entitled to High Court costs, however 
 small the value of the goods or the amount of the damages 
 may be. 
 
 County Court Practice in Detinue. 
 
 Under sect. 89 of The Judicature Act, 1873, a County 
 Court has, as regards all actions in detinue within its juris- 
 diction, the same powers as the High Court. (Ht/mas v. 
 Ogde7i.) 
 
 Detinue is a "personal action" within sect. 56 of The 
 County Courts Act, 1888. The value of the goods detained 
 must aiot exceed £100. If, in the course of the trial, the 
 goods are shown to be of a greater value than £100, the 
 jurisdiction of the Court is ousted. {Taylor v. Addyman; 
 Leader v. Rhys.) 
 
 A breach, by a hirer, of his contract to deliver up the 
 chattels at the owner's address, will (after a demand for the 
 chattels has been duly made) enable the owner to bring an 
 action in detinue, against the hirer, in the County Court of 
 the district in which the owner carries on business. {Walsh 
 V. lonides ; Cullen v. Barclay.) 
 
 Even if there is no contract by the hirer to deliver up the 
 chattels at the owner's address, yet if, in addition to suing 
 in detinue, the owner claim's for arrears of hire, this will 
 enable him' to sue in the County Court of the district in which 
 he carries on business, as being the district in which the 
 " cause of action or claim wholly or in part arose ." (Northet/ 
 V. Gidney.) 
 
 Amongst the Court Forms in the Appendix will be found 
 an affidavit in support of an application for leave to issue 
 an ordinary summons out of the district, in an action in 
 detinue against a hirer. 
 
CIVIL PROCEEDINGS BV OWNER. 155 
 
 Payment into Court. 
 
 In an action in detinue, money nia\- bo paid into Court, 
 under sect. 107 of The County Courts Act, 1888, in respect 
 of the damages claimed for the detention (CrossfieM v. 
 Such), but not in respect of the claim for the return of the 
 goods or their value. {Eherles Hotels v. Jonas.) 
 
 Preservation and Inspection of Chattels. 
 
 See Order XII. r. 3, of the County Court Rules, the notes 
 on p. 149, ante, on the corresponding Supreme Court Order, 
 and Moore v. Austin, there cited. 
 
 Documents (Proof of). 
 
 As to proof of documents in a County Court action, see 
 the notes under the heading " Attesting Witness " on p. 25. 
 
 Form of Judgment. 
 
 The right of a plaintiif in a County Court action in detinue 
 to liave a judgment for the specific return of a chattel, and 
 the form And effect of such judgment, depend upon the same 
 principles as in High Court actions, and the above notes upon 
 the latter should be referred to as to these points. 
 
 The form of judgment (No. 292) in the Appendix to 
 the County Court Rules can be improved upon considerably, 
 and the form' given below, which was drafted by the Author 
 and has been found to work very satisfactorily in practice, 
 is suggested for use . It may be pointed out that a variation 
 of the prescribed forms is permitted hj Order XLV. r. 22. 
 
 It should be borne in mind that, in order to ground pro- 
 ceedings for attachment, a sealed copy of the judgment must, 
 under Order XXIII. r. 9, and Order XXV. r. 58, be sei-ved 
 personally on the defendant, being endorsed with the follow- 
 ing memorandum: — 
 
 To 0. D., of 
 
 Take notice that unless you obey the directions contained in 
 
166 THE HIRE-PURCHASE SYSTEM. 
 
 this ordcr^ you will be guilty of a contempt of Court, and will 
 be liable to be committed to prison. 
 Dated this day of , 19 . 
 
 , Segistrar. 
 
 The following is the Author's form of judgment which 
 it is suggested should be used: — 
 
 The day of , 19 . 
 
 Upon the trial of this action at a Court holden this day^ It is 
 adjudged that the plaintiff do recover against the defendant 
 the sum of £ [^amount of liquidated claim, if any] for 
 
 debt. 
 
 And it is adjudged that the plaintiff do recover against the 
 defendant the following goods and chattels wrongfully detained 
 by the defendant, that is to say [here describe the chattels 
 which the Court decides to have been detained^ or (if the same 
 cannot be found by the bailiff under the warrant of delivery 
 hereinafter mentioned) the sum of £ (being the value of 
 
 the said goods and chattels), and also the sum of £ for 
 
 damages for the detention of the said goods and chattels, and 
 also the plaintiff's costs of this action to be taxed according to 
 column of the scales of costs. 
 
 Tbid it is ordered that the defendant do pay the said sums of 
 £ [liquidated claim] and £ [damages for detention] 
 
 to the registrar of this Court on the day of , 19 , 
 
 and do also pay the amount of the said costs, when taxed, to the 
 registrar of this Court, within fourteen days after the date of 
 the certificate of taxation. 
 
 And it is further ordered that the defendant do return the 
 said goods and chattels to the plaintiff on the day of , 
 
 19 , or subsequently within four days after service of this 
 judgment [see Order XXIII. r. 9], and that, in default of his 
 so doing, a warrant of delivery do issue for the delivery of the 
 said goods and chattels, and such warrant shall provide that, if 
 the said goods and chattels cannot be found, the bailiff shall 
 distrain the defendant by all his lands and chattels within the 
 district of the Court of which the bailiff is the bailiff, till the 
 defendant delivers the plaintiff's said goods and chattels; or, 
 at the option of the plaintiff, the warrant shall provide that, if 
 the plaintiff's said goods and chattels cannot be found, the 
 bailiff shall cause to be made of the defendant's goods the sum 
 of £ , being the assessed value of the plaintiff's said 
 
CIVIL PKOCEEDINGS BY OWNEK. 157 
 
 goods and chattels. [// the defendant is a married woman, 
 widow, or divorced woman, one of the forms, numbered 151a, 
 in the Appendix to the County Court Rules, should be added.l 
 
 Warrants of Delivery. 
 
 The various forms of warrants of delivery are numbered 
 293, 294, and 295 in the Appendix to the County Court 
 Rules . 
 
 The warrant numbered 293 is not complete, in tliat it does 
 not give the plaintiff the option of having- the value of the 
 chattels levied if they cannot be found, and, in practice, it 
 should be amended, in this respect, so as to carry out the pro- 
 visions of Order XXV r. 69. This omission is provided 
 for in the above form of judgment. 
 
 If it is desired to issue a warrant for the delivery only of 
 the chattels, without the option of having their value levied 
 if the chattels cannot be found, such value need not be 
 assessed by the judgment {HyifHas V. Ogden), but if the 
 plaintiff desires to be able to exercise the option (which is a 
 useful power) the value must be assessed. 
 
 By Order XXV. r. 70, when a warrant of delivery is 
 issued, the plaintiff shall, either by the samfe or a separate 
 warrant of execution, be entitled to have made, of the defen- 
 dant's goods, the damages and costs awarded. 
 
 Attachment. 
 
 A County Court judge has jurisdiction to issue a warrant 
 of attachment, notwithstanding that an absolute warrant of 
 delivery has been issued and remains unexecuted. (Hymas 
 V. Ogden.) 
 
 A married woman may be attached for wilful disobedience 
 to an order to deliver up a specific chattel, as may also her 
 husband, if he is a joint defendant. (Be Turnhull.) 
 
 The procedure as to attachment is set out in Order XXV. 
 rr. 57—63. 
 
158 THE HIKE-PURCHASE SYSTEM. 
 
 ACTION FOR CONVERSION. 
 
 All action for conversion is an action brought not to obtain 
 the return of goods, but to recover damages for their loss . 
 
 All explanation of the origin and nature of this action 
 wiU be found in the judgments in Burroughes v. Bayne 
 and Hollins v. Foioler. 
 
 " Conversion " of goods may be dciined as an unauthorised 
 act (such as taking, detaining, destroying, transferring, scU- 
 ing or buying) having the effect of depriving the true owner 
 of his goods, either permanently or for an indefinite time. 
 (Stephens v. ElwaU; Heald v. Carey; Hiort v. Bott ; 
 Hollins V. Foioler ; Consolidated Co. y. Curtis.) Numerous 
 instances of conversion have appeared in the preceding 
 tjhapters . 
 
 A warehouseman, with whom goods have been deposited, 
 is guilty of no conversion by keeping them or by restoring 
 them to the person who deposited them with him, if he does 
 so ill ignorance of the title of the true owner and before the 
 latter demands possession of them, although the person who 
 deposited the goods turns out to have had no authority from 
 the true owner. And the same rule applies to carriers, 
 wharfingers, and packers, Avho merely purport to change the 
 yiosition of goods, and not the properly in them. (Hollins 
 V. Fowler ; Unioti Credit Bcmlc v. Mersey Docks Board.) 
 
 If goods are not in the possession or under the control of a 
 person when demanded, he is not (except when a bailee) 
 liable for conversion, unless he has actually done some act 
 of conversion (Smith v. Young, ■ Y err all v. Robinson; Heald 
 V. Carey), or unless he has by his own wrongful act put it out 
 pf his power to hand over the goods (Jones v. Dowle ; Beeve 
 y. Pahner ; Bristol, dc. Bank v. Midland Railway Co.), or 
 unless he is estopped from asserting that the goods were not 
 in his possession. (Hall v. White; Seton v. Lafone.) 
 
CIVIL PROCEEDINGS BY OWNER. 159 
 
 Plaintiff's Title. 
 
 As to the title which a person unust possess to enable him to 
 bring an action for conversion of goods, and as to the defen- 
 dant setting up a jus tertii, see the cases cited, in reference 
 to an action of detinue, under the heading "Plaintiff's Title," 
 p. 142, the principles of which are applicable to an action 
 for conversion. 
 
 From the decisions above referred to, it will be seen that, 
 in order to maintain an action for conversion, a plaintiff 
 must be entitled to the immediate possession of the goods. 
 Hence, the owner of a reversionary interest in a chattel let 
 on hire, having parted with the right of possession, cannot 
 sue for conversion, though he may bring an action for 
 damages for negligence in respect of the permanent injury- 
 done to his reversion. {Gordon v. Harper ; Tancred v. All- 
 good; Mears v. L. (& S. W Railway Co.) 
 
 As to whether it is necessary to prosecute a hirer before 
 bringing an action against him' for conversion, see under the 
 heading " Prosecution of Hirer " on p. 78. 
 
 As to the law of market overt, see p. 16. 
 
 Evidence of Conversion — Demand and Refusal. 
 
 .V conversion is usually proved by evidence of a direct 
 act of conversion, such as a wrongful taking or sale. In such 
 a ease, it is not necessary to demand the goods before com- 
 mencing an action for conversion. {Granger v. Bill; Ed- 
 wards v. Hooper.) 
 
 If, however, the original possession of the goods was ob- 
 tained lawfully, and there has been no subsequent act of 
 conversion, the intended defendant should be served before 
 action {Clayton v. Le Roy) with an unconditional {Rush- 
 worth V. Taylor) notice demanding specific goods {Ahington 
 V. Lipscomb) in the form and manner set out on p. 76. 
 
 An express or implied refusal of the demand must be 
 shown . 
 
160 THIO HIRE-PUKCHASK SYSTEM. 
 
 A refusal of the demand is not by itself a conversion, but 
 is presumptive evidence of a conversion, and 'may be rebutted. 
 (Balme v. Huttoii.) 
 
 An unqualified refusal is almost always conclusive evi- 
 dence of a conversion ; but if some reason (other than a claim 
 to the goods) is given for the refusal, the question then is 
 whether the reason given is justifiable. {Alexander v. 
 Southey ; Claijton v. Le Bot/.) 
 
 If the ground of the refusal is insufficient, the demand and 
 refusal will furnish evidence of a conversion. (Thorogood 
 V. Robinson; Wilton v. Girdlestone ; Davies v. Vernon.) 
 
 If the refusal is in disregard of the plaintiff's title, and 
 for the purpose of claiming the goods, either for the defen- 
 dant or a third person, it is a conversion. If the refusal is 
 by a person who does not know the plaintiff's title, and, 
 haAdng a bond fide doubt as to it, detains the goods for a 
 reasonable time for clearing up that doubt, it is not a con- 
 version. {Solomans v. Dawes; Lee v. Bayes; BurrougJies- 
 V. Bayne ; Hotlins v. Fowler ; Clayton v. Le Roy.) A re- 
 fusal will be implied on the ground of the defendant's 
 silence, or non-compliance with the demand. (Anthony v. 
 KaJiey ; Watkins v. Woolley ; Wilso)i v. Andcrton; Bur- 
 rougJies V. Bayne.) 
 
 A demand and refusal may be sufficient evidence of a 
 conversion, if the refusal is under a claim' of right, even 
 although it is retracted or not persisted in, if the defendant, 
 having the power to do so, does not in a reasonable time give 
 up the goods, or enable the plaintiff to obtain and take them 
 away. {Burroughes v. Bayne.) 
 
 A servant may be possessed of sufficient authority to make 
 a refusal by him evidence of a conversion by his master, as 
 weU as by himself. {Jones v. Hart; Wilson v. Anderton.) 
 But merely stating that he must take his master's instruc- 
 tions is not a conversion. (Lee v. Bayes; Alexander v. 
 Southey.) 
 
CIVIL PROCKEDINGS BY OWNER. 161 
 
 Damages. 
 
 In ail action for conversion, the general rule is tbat the 
 value of the goods to the owner is the measure of damages 
 {Mulliner v. Florence), but this is not necessarily the limit, 
 the damages being compensation for the loss actually sus- 
 tained by the wrongful act. {Finch v. Blount ; Hiort v. L. 
 <& N. W. Railivay Co.; Davis v. Artingsall; Thurston v. 
 Charles.) In the last case, substantial damages were re- 
 covered. 
 
 The price, at the date of the conversion, at which the owner 
 could purchase similar goods is the measure of damages, 
 when based on the value of the goods. (Henderson v. 
 Williams ; Rhodes v. Moules.) 
 
 The owner of a chattel, who is wrongfully deprived of its 
 use, is also entitled to a sum' for the deprivation of the use 
 of the goods, even though he cannot prove a tangible 
 pecuniary loss, such as ,out-of -pocket expenses. (The 
 Mediana. See also The Marpessa; The Bodlewell; The 
 Astrakhan ; andTAe Tugela.) 
 
 Exemplary damages may be awarded. As to these, see 
 p. 147. 
 
 Special damage may also be recovered, if claimed and 
 proved. For notes upon this, see p. 147. 
 
 J%\ Armory v. Delamirie, it was laid down that, where 
 a person who has wrongfully converted property will not. 
 produce it, it shall be presumed, as against him, to be of the 
 best description. 
 
 Under sect. 29 of The Civil Procedure Act, 1833, damages, 
 in the nature of interest, over and above the value of the 
 goods at the time of the conversion, may be given by the 
 jury: and a judge sitting alone has the same power. 
 (London, C.SD. Railway, Co. v. South E. Railway Co.) 
 
 A conversion cannot be purged. Therefore, if a conver- 
 sion has been committed, the plaintiff is entitled to some 
 damages. But a return of the goods may always be proved 
 in mitigation of damages. If the goods are returned after 
 
 11 
 
162 THE HIRE-PUECHASE SYSTEM. 
 
 action brought, the action will proceed at the plaintiff's peril, 
 and unless he recovers substantial damages he will have to 
 pay the costs of the action subsequent to the return of the 
 goods. {Riort v. L. d N. W Railimy Co.; Forster v. 
 Farquhar.) On the goods being given up, the Court may 
 stay the action, on such termis as it thinks fit {Tucker v. 
 Wright), but will not do so where special damage is claimed. 
 {Bodley v. Reynolds.) 
 
 Statute of Limitation. 
 
 By sect. 3 of The Limitation Act, 1623, an action .for 
 conversion of goods is barred after six years from' the con- 
 version, and this is so even if the owner does not become 
 aware of the conversion during the six years, if he has not 
 been prevented by fraud from' ascertaining the fact of the 
 conversion. {Granger v. George.) 
 
 If a person, other than a bailee, who is liable for conver- 
 sion, has comKiitted successive acts of conversion, the period 
 of limitation runs from the date of the first act of conversion, 
 and no subsequent demand and refusal will constitute a 
 second conversion. {Wilkinson v. Verity.) But if the only 
 act of conversion, of which the defendant has been guilty, 
 consists of a refusal to hand over goods on demand, The 
 Limitation Act runs from the date of the refusal, notwith- 
 standing the fact that the defendant was not the first person 
 who converted the goods. {Spademan v. Foster, explaining 
 M'Combie v. Davies ; Miller v. Dell. And see Gelmini v. 
 ■Moriggia, cited on p. 148.) 
 
 Practice Notes. 
 
 If, in an action for conversion in the High Court, the de- 
 fendant intends to deny the plaintiff's title to the goods, as 
 well as the conversion, he must plead the point specifically. 
 (Order XIX. rr. 15 and 17; Finch v. Blount.) 
 
 In a High Court action for conversion, judgment may be 
 
CIVIL PROCEEDINGS BY OWNER. 163 
 
 signed in default of appearance (Order XIII, rr. 5, 6, 
 and 7) or defence (Order XXVII. rr. 4, 5, and 6), as well 
 as after trial. 
 
 The defendant is not entitled to ask for the judgment to 
 he entered against him subject to its being reduced to a 
 nominal sum on his returning the goods {M'Leod v. 
 M'Ghee); but if he does return the goods after judgment, 
 and the plaintiff accepts them, the judgment Avill be reduced. 
 (Plevin r Henshall.) 
 
 An action for conversion is an action founded upon tort 
 within sect. 116 of The County Courts Act, 1888. (Clap- 
 ham V. Oliver ; Cohen v Foster.) 
 
 The re-marks on p. 154, as to an oAvner being able to bring 
 an action in detinue against a hirer in the Countjr Court of 
 the district in which the owner carries on business, are 
 applicable to an action for conversion. 
 
 As to proof of documents in a County Court, see under the 
 lieading "Attesting Witness" on p. 25. 
 
 ACTION FOR ILLEGAL DISTRESS. 
 
 The various circumstances under which an action for 
 illegal distress will lie are fuUj' considered in Chapter II. 
 
 The action wiU usually take the form of an action of 
 idetinue or conversion, but an action for trespass (as to whicli, 
 -see p. 167) may be brought. {Keen v. Priest.) 
 
 The general features of actions in detinue and for con- 
 version are dealt with in (earlier parts of this cliapter and 
 should be referred to. The following remarks deal more 
 particularly with those actions as connected with the sub- 
 ject of illegal distress. 
 
 The person Avho brings the action, whether it is the owner 
 or the hirer, must be entitled to the immediate possession 
 •of the goods. 
 
 An owner of hired goods cannot, whilst the hiring con- 
 tinues, bring the action, because he has parted with the 
 possession of the goods, and has not the immediate right to 
 
 11(2) 
 
164 THE HIRE-PURCHASE SYSTEM. 
 
 possession. {Gordon v. Harper ; Fenn v. Bittleston; Lord 
 V. Price.) 
 
 But if, owing to events which have happened, the owner 
 has, as against the hirer and the landlord, beconie entitled 
 to the immediate possession, he can sue. (Jelks v. Hay- 
 ward.) 
 
 If an action cannot be brought by the owner because he- 
 is not entitled to the immediate possession, it may be brought 
 by or in the name of the hirer (unless he is debarred by The 
 Distress Act, 1908), since the latter has a special property 
 in the goods sufficient to enable him to sue {NichoUs v. Bas- 
 tard), and the hirer may recover damages, including the full 
 value of the goods (Smre v. Leach) and interest, which 
 may be given by the jury (The Civil Procedure Act, 1833^ 
 s. 29), or by a judge sitting alone (London, C. d D. Raihoajf 
 Co. y. South E. Railway Co.); but the hirer must account 
 to the owner for the latter' s proportion of the damages re- 
 covered. (The Winkfield.) 
 
 In every case of illegal distress the bailiff is liable to an 
 action, but this is not necessarily so as regards the landlord, 
 who, except as provided by The Distress Act, 1908, is liable 
 only if he authorised the distress, or, with knowledge of the 
 facts, subsequently assented to it. (Freeman v. Rosher ; 
 Carter v. St. Mary Abbots; Becker v. Riebold.) 
 
 The concluding words of sect. 2 of The Distress Act, 1908,. 
 make the landlord liable, if the distress is proceeded with 
 after the declaration has been served upon him', even if he 
 did not distrain in person, or did not authorise the acts 
 complained of. (Lowe v. Dorling.) 
 
 If the agent of a landlord authorises an illegal distress^ 
 such agent is liable (Bennett v. Bayes), as he also is if he 
 permits the distress to proceed, after being served with a 
 declaration . 
 
 Damages. 
 
 The form' of judgment, and the amount of the damages 
 and interest recoverable, will run on the samfe lines as in 
 
CIVIL PROCEEDINGS BY OWNER. 165 
 
 actions in detinue and for conversion, as set out in the earliea* 
 parts of this chapter, and as mentioned below, according to 
 the form which the action takes. 
 
 Tn the case of an illegal distress, in an action by a tenant 
 (when there is rent due), the value of the goods sold, without 
 any deduction for rent, is the measure of damages. (Keen 
 T. Priest; Attack y. Brmriwell.) 
 
 Where there had been a wrongful seizure and a man had 
 been placed in possession for some days, a tenant was held 
 entitled to recover substantial damages, although he had had 
 the use of the goods all the time. {Bayliss v. Fisher.) But 
 in a case where the tenant's goods Avere detained for a short 
 time only, and were released upon payment of the rent due, 
 it was held that only nominal damages could be recovered for 
 the trespass. {Hogarth v. Jennings.) 
 
 Where the iUegaL distress consists of the removal of fix- 
 tures, their cost to the tenant, or their value to an ingoing 
 tenant, may be awarded as damages, and not merely the 
 amount they realise when sold as severed. (Moore v. Drink- 
 water.) 
 
 If no rent is in arrear, the owner of goods which are dis- 
 trained and sold is entitled, under sect. 5 of The Distress 
 Act, 1689, to recover double the value of the goods and fuU 
 costs. (Masters v. F arris. See also Sntith v. Enright, as 
 an illustration of special dam'age recovered.) 
 
 For instances of actions for illegal distress brought by 
 persons who were not tenants, see Sioire v. Leach; Sharp v. 
 Fowle; Perring d Co. v. Emerson; Shenstone v. Freeman; 
 and Rogers v. Martin. 
 
 ACTION FOR IRREGULAR DISTRESS. 
 
 An action for an irregular distress must be distinguished 
 from' an action for an illegal distress. In an irregular dis- 
 tress, the distress itself is legal, but some irregularity occurs 
 subsequently, such as the omission to serve a written notice 
 of the distress. 
 
166 THE HJRE-PUKCHASE SYSTEM. 
 
 Where a bailiff has distrained the right goods of the tenant, 
 which it was meant he should distrain, the landlord, having 
 authorised the distress, is liable for any irregularity/ of the 
 bailiff in conducting such distress to a sale, although com- 
 mitted by the bailiff without the knowledge or sanction of 
 the landlord. {Haseler v. Leinoijne.) 
 
 In an action for irregular distress, the party aggrieved 
 can, under sect. 19 of The Distress Act, 1737, recover only 
 the special damage sustained by him, and, if he does not prove^ 
 any, the defendaiit is entitled to judgment (Rodgers v. 
 Parker); and, by sect. 20 of the statute, no tenant .shall 
 recover in any such action, if tender of amends has been 
 made before action brought. 
 
 In a case of irregular distress, the owner of the goods- 
 sold has no right of action against the purchaser. (Whit- 
 worth V. Smith.) 
 
 ACTION FOR EXCESSIVE DISTRESS. 
 
 Damages for excessive distress cannot bo recovered in am 
 action in which the only claim' is for illegal distress. (Mac- 
 gregor v. Clanwp.) 
 
 An action for excessive distress may be brought under 
 practically the samte conditions a,s those ,applying to an ir- 
 regular distress, except that the plaintiff will at least be 
 entitled to nominal damages. {Chandler v. Doulton.) 
 
 In Fell V . Whitaker, where the plaintiff was a tenant and 
 had the use of furniture which was not his property, it was- 
 held that he was entitled to recover the amount which he- 
 was obliged to pay in excess of the rent due plus a sum as- 
 damages for the inconvenience to which he had been put by 
 the interference with his enjoyment of the goods. 
 
 If part only of the goods distrained belong to the plain- 
 tiff, he recovers his proportion of the whole value of the 
 goods. (Bail v. Mellor.) 
 
 .The owner of goods sold under an excessive distress ha& 
 
CIVIL PROCEEDINGS BY OWNER. 167 
 
 no right of action against the purchaser. {Whihvorth V. 
 Smith; Macgregor v. Clamp.) 
 
 ACTION FOR TRESPASS TO GOODS. 
 
 Anj- wrongful interference with a person's possession of 
 goods is a trespass. {Bushell v. Miller ; Hartley/ v. Mox- 
 hctm; Kirk-v. Gregory.) 
 
 Every act of conversion is generaUy a trespass, and as an 
 action of conversion (considered in j)revious pages) is now 
 the usual method of obtaining damages for the wrongful 
 taking of chattels (the plaintiff being said to "waive the 
 trespass") the question of trespass to goods is not of much 
 practical importance, except as to the damages recoverable. 
 In trespass, the damages may be merely nominal, whilst in 
 an action for conversion the value of the goods can at least 
 be recovered. 
 
 The cases of Bushell v. Miller and Foulds v. Willoughby 
 illustrate clearly the distinction between trespass and con- 
 version . 
 
 If goods are taken out of the possession of the holder, this 
 is an asportation; but the possession need not be changed in 
 order that the act may amount to trespass — any trifling 
 injury to a chattel, such as scratching the panel of a carriage, 
 would be a trespass, as might also be a mere touching of the 
 chattel, but these acts would not am'ount to conversion. 
 (Foulds v. Willoughhy .) 
 
 When it is doubtful whether a given act amounts to con- 
 version or to trespass only, it is material to consider the 
 defendant's intention. {Foulds v. Willoughhy.) 
 
 Trespass will lie in respect of an illegal distress {Keen v. 
 Priest), but not in respect of an irregular or excessive dis- 
 tress, as in the latter cases the taking is not wrongful. 
 {Whitworth v. Smith.) 
 
 A person who knowingly receives, from another, a chattel 
 which the latter has wrongfully seized, and afterwards on 
 demand refuses to give it back to the owner, does not thereby 
 
168 THE HIRE-PURCHASE SYSTEM. 
 
 become a joint trespasser, unless the chattel was seized for 
 his use or benefit, although he would be liable in detinue or 
 for conversion. (Wilson v. Barker ; Winter v. Bancks.) 
 
 An action for trespass may be brought against a corpora- 
 tion. (Maund v. Monmouthshire Canal Co.) 
 
 " The plaintiff in an action of trespass must, at the time of 
 the trespass, have possession, actual or constructive, or a legal 
 right to immediate possession of the goods." (Per Lord 
 Esher, M. B,., in Johnson v. Diprose. See also Brierley v. 
 Kendall.) 
 
 In an action for trespass to goods, the rules as to possession 
 being sufficient title against a wrongdoer, and as to setting 
 up a jus tertU as a defence, are as stated on p. 143. 
 
 If the plaintiff has lost his goods, the rules as to the 
 damages — general, exemplary, and special — recoverable in an 
 action for trespass are practically the same as those relating 
 to an action in detinue, as to which see p. 146. (And see 
 Smith V. Enright.) 
 
APPENDIX. 
 
 PAET I. 
 PRECEDENTS. 
 
 Note. — It is desirable in drawing hire-purchase agreements that 
 -one general form should he followed, as regards all classes of goods, 
 so far as the clauses common to all are concerned. No good is 
 ^one by attempting to express the same object in difEerent words, 
 merely because the goods dealt with differ in kind. By adopting 
 one general form, uniformity and consistency will be secured in 
 the construction put upon hire-purchase agreements by the Courts. 
 For these reasons, separate Precedents for different kinds of goods 
 have not been provided. 
 
 The first Precedent of hire-purchase agreement sets out prac- 
 tically every clause likely to be wanted in an ordinary transaction, 
 and is equally applicable to a sewing-machine, a bicycle, a piano- 
 forte, or a houseful of furniture, and such like; and by making a 
 few variations and adding clauses from Parts II. and III. of this 
 Appendix, it will be found quite sufficient for transactions of larger 
 value, such as motor cars, aeroplanes, and machinery. 
 
 It will not be necessary (especially in small transactions) to use 
 ■the first Precedent of hire-purchase agreement in its entirety in 
 «very case. The draftsman should adopt such clauses, or parts 
 of clauses, as he may think suitable to the particular transaction 
 ■with which he is dealing. 
 
 A general form of hire-purchase agreement, settled by the Author, 
 printed on foolscap (No. 263), can be obtained from Messrs. 
 Waterlow & Sons, Ltd., London Wall, London, E.G., and Temple 
 Eow, Birmingham; price, 5s. per quire, 3s. Gd. per dozen, single 
 ■copies 4d. each. 
 
170 APPENDIX. 
 
 Precedent No. 1. 
 
 HIEE-PUECHASE AGEEEMENI. 
 
 [This Precedent can be readily converted into an agreement for 
 simple }iire.~\ 
 
 THIS AGEEEMENT, made the day of , 19 , 
 
 Between [Name^ address, and business of owner. If the owner 
 is a limited company, describe it thus: — A. B. and Company, 
 Limited, a Joint Stock Company duly constituted and having its 
 Begistered Office situate at Street, , in the County 
 
 of , by C. D. of &c. [or, by the undersigned Director of 
 
 the Co.], the duly authorised Agent of the Co.] (hereinafter called 
 " the owner," which expression shall, where the context admits,, 
 include the executors, administrators, and assigns, and successors 
 in business [or, in the case of a limited company, the successors 
 and assigns] of the owner, so that this agreement shall be binding 
 on the hirer notwithstanding any alteration in the partnership, 
 proprietorship, or constitution of the owner's firm, or their assigns,, 
 any rule of law or equity to the contrary notwithstanding) of the 
 one part, and [Name, address, and profession or occupation of 
 hirer'^^ (hereinbefore and hereinafter called " the hirer," which 
 expression shall, where the context admits, include the executors,, 
 administrators, and permitted assigns [or, in the case of a limited 
 company, the successors and permitted assigns] of the hirer) of' 
 the other part. 
 
 Whereas the owner is now the sole, absolute, and beneficial 
 owner of the chattels hereinafter described, and the same are hereby 
 expressly admitted by the hirer to be now in good [and perfect 
 working] order and condition (the owner not being responsible 
 for any warranty), and are also admitted by the hirer, for the 
 purposes of this agreement, to be of the present total value of 
 £ 
 
 And wheeeas the hirer has requested the owner to let ;the 
 said chattels on hire to the hirer and the owner has agreed so to do, 
 at the rent, and upon the terms and conditions hereinafter 
 appearing. 
 
 Now THIS Agheement ■WITNESSETH that, pursuant to the said 
 request, and in consideration of the sum of £ (to be credited 
 
 as hereinafter mentioned) now paid by the hirer to the owner for 
 the option of purchase hereinafter contained (the receipt whereof 
 is hereby acknowledged), and also in consideration of the rent 
 hereinafter reserved, and of the provisions and stipulations herein- 
 
PRKCEDENTS. 171 
 
 after contained, it is mutually agreed between the parties hereto^ 
 as follows: — 
 
 1. The owner will let on hire to the hirer as a bailee, and the 
 hirer, as a bailee, will take on hire from the owner, f rohi the 
 
 day of , 19 , until the hiring shall be terminated or shall 
 
 determine as hereinafter mentioned, ^Description of chattels. For 
 the purposes of idenUfication they should be fully described as in a 
 Bill of Sale. If they are numerous a Schedule is desirable, in 
 ■which case say : — more particularly described in the Schedule here- 
 under written] (hereinafter referred to as "the said chattels"). 
 
 2. The hirer will, during the continuance of the hiring, punc- 
 tually pay to the owner, at the address for the time being of the 
 owner, and without previous demand, as rent for the hire of the 
 said chattels [the yearly sum of £ , payable by equal quarterly 
 paj'ments on the day of , the day of , 
 the day of , and the day of , in every 
 year, the first of such quarterly payments to be made on the 
 
 day of , 19 J or [the sum of £ every calendar month, 
 
 the first payment to be made on the day of , 19 , 
 
 and each subsequent payment on the day of every suc- 
 
 ceeding calendar month] [And the hirer will pay to the owner the 
 sum of £ per annum for tuning the said pianoforte four 
 
 times yearly] . 
 
 3. If the hirer shall duly observe and perform the provisions and 
 stipulations of this agreement, which on the part . of the hirer 
 ought to be observed and performed, and shall, in the manner 
 described in Clause 2 of this agreement, pay to the owner rents 
 amounting in the aggregate with the sum paid on the signature 
 of this agreement to the sum of £ , and shall also pay to the 
 owner all other moneys which shall become payable by the hirer 
 under this agreement, the hiring shall determine, and the owner 
 will assign all his interest in the eaid chattels to the hirer, but, 
 until all the said payments shall have been made, the said chattels 
 shall remain the sole property of the owner, and the hirer shall 
 not be deemed to have bought or agreed to buy the same, but is 
 and shall remain the bailee thereof only, notwithstanding any judg- 
 ment or judgments which the owner may at any time, or from 
 time to time, obtain against the hirer for any sum or sums for the 
 time being owing by the hirer to the owner under this agreement. 
 
 4. The hirer may, at any time, terminate the hiring and become 
 the purchaser of the said chattels by paying to the owner the 
 sum of £ , and all moneys due from the hirer to the owner 
 
 under the provisions of this agreement, and in that event credit 
 shall be given by the owner to the hirer for the amount paid by the 
 
172 APPENDIX. 
 
 hirer upon the signature of this agreement as aforesaid and also 
 for all payments made in respect of rent. [And if the hirer shall, 
 as provided by this clause, become the purchaser of the said chattels, 
 the owner will return to the hirer a sum equal to £4 per cent, per 
 annum to be calculated upon the total amount of rent, the payment 
 of which by such purchase shall be accelerated by the hirer] or 
 [And if the hirer shall desire to pay ofE the balance of the purchase 
 price at the end of the first year of the hiring, discount at the rate 
 of [ten] per cent, shall be allowed on such balance, or if the balance 
 remaining at the end of the second year of the hiring shall be then 
 paid off, discount at the rate of [five] per cent, on such balance 
 shall be allowed.] Provided that the option given to the hirer 
 by this clause shall not prejudice any, right of action, or other 
 remedy of the owner, in respect of any breach by the hirer of the 
 terms of this agreement. 
 
 5. The hirer may, at any time, terminate the hiring by deliver- 
 ing up the said chattels to the owner, at the address for the time 
 being of the owner, at the hirer's own risk and cost, without pre- 
 judice to any claim the owner may have against the hirer for arrears 
 of rent [or tuning charges] or damages, but, in the event of the 
 hiring being terminated by the hirer under this clause within 
 [six] calendar months from the commencement of the hiring, the 
 minimum amount which shall be payable by the hirer to the owner 
 on such termination of the hiring shall be a sum which, with the 
 amounts previously paid by the hirer to the owner, shall equal 
 the amount of [six] calendar months' rent [and tuning charges] and 
 the charges, expenses, and payments of the owner of and incidental 
 to the original delivery and the return of the said chattels. 
 
 6. The hirer will, during the continuance of the hiring, keep the 
 said chattels in his own custody, at his above-mentioned address, or 
 at such other premises as may be authorised in writing by the 
 owner, and will not sell, or oSer for sale, or assign, pledge, mort- 
 gage, underlet, lend, or otherwise part, or attempt to part with the 
 possession of the said chattels, or the hirer's interest therein, or 
 contract or purport so to do, or assume the ownership of the said 
 chattels, or remove the said chattels, or cause or permit the same 
 to be removed from the above-mentioned address of the hirer, or 
 other authorised premises as aforesaid [except in the usual course 
 of business] without the previous consent in writing of the owner. 
 And will punctually pay all rents, rent-charges, rates, taxes, and 
 other outgoings due and payable in respect of the premises in 
 which the said chattels may for the time being be placed, and will 
 take receipts therefor, and will, when demanded in writing or 
 otherwise, forthwith produce to the owner or his agent the receipt 
 
PRECEDENTS. 173 
 
 for tlie last payment due in respect of such rents, rent-charges, 
 rates, taxes, and other outgoings respectively. And will permit the 
 owner and his agents, at all reasonable hours, to enter upon the 
 premises in which the said chattels may from time to time he 
 placed to inspect the condition of the same. 
 
 7. The hirer will, during the continuance of the hiring, at his 
 own expense, keep the said chattels in good and substantial order 
 and repair [and perfect working order and properly painted] [fair 
 wear and tear thereof excepted] and insured against damage by fire 
 to the full value thereof, and will indemnify the owner against 
 all loss of or damage to the said chattels from whatever cause 
 arising. Provided that the hirer shall not have or be deemed 
 to have any authority to pledge the owner's credit for the repairs 
 of the said chattels, or to create a lien upon the said chattels in 
 respect of such repairs, or in respect of any other matter, but, 
 if the said chattels shall be required to be repaired, the hirer shall 
 request the owner to execute the repairs at the hirer's expense, 
 and the owner shall be entitled to the possession of the said chattels 
 for such purpose. 
 
 8. If the hirer do not punctually pay the rent mentioned in 
 Clause 2 hereof (whether the same shall have been demanded or 
 not), or do not observiO and perform, pr shall (commit a breach of, any- 
 of the other foregoing terms and conditions of this agreement,, 
 or if a receiving order in bankruptcy is made against the hirer, or 
 if the hirer shall convene any meeting of creditors, or if th© 
 hirer shall execute any assignment for the benefit of creditors, or- 
 arrange or compound with the greater part in number or value 
 of them, or if the hirer shall execute a bill of sale or preferential 
 security of the hirer's effects, or of the said chattels, or any of them 
 [7/ the hirer is a limited company, instead of the foregoing pro- 
 visions as to bankruptcy, say: — or if the hirer shall enter into, 
 liquidation, whether compulsory or voluntary (not being a volun- ^ 
 tary liquidation merely for the purpose of reconstruction)], or' 
 if a distress shall be levied, or be threatened to be levied, upon the 
 hirer's effects or the said chattels for rent, rent-charge, rates, or- 
 taxes, or if the said chattels or the hirer's term or interest therein 
 shall be seized or taken in execution, or if the hirer shall allow any 
 judgment against Mm to remain unsatisfied, then and in any of' 
 the said cases, and from time to time as often as any of them 
 shall happen, the hiring shall immediately determine (without any 
 prior notice or demand, or other act on the part of the owner, 
 and although the owner may not have taken advantage of some 
 previous default of a like nature), and thereupon all payments 
 
] 74 APPENDIX. 
 
 previously made by the hirer, under the terms of this agreement, 
 shall be forfeited to the owner. 
 
 9. If the hiring determines under clause 8 of this agreement, the 
 hirer shall forthwith deliver up the said chattels, at the hirer's 
 own risk and cost, to the owner, at the address for the time being 
 •of the owner, and, in default of such delivery, the owner, his agents, 
 servants, or others in his employ, or on his behalf, may (so far as 
 the hirer can give authority for such purpose), without previous 
 notice, enter upon any premises occupied, or apparently occupied, 
 by the hirer, or of which the hirer is or appears to be the tenant, 
 and seize and take away the said chattels, and resume possession 
 ■of the same, and for that purpose, or for any other purpose con- 
 nected therewith, the owner, his agents, servants, or others in his 
 -employ or on his behalf, shall have, at all reasonable times, full 
 liberty of ingress, egress, and regress, into and from any of the 
 premises whereon or wherein the said chattels, or any of them, 
 may be placed, or may be supposed to be placed, and every part 
 thereof {The following words "may legally he inserted, hut should 
 not he adopted as a matter of course. The insertion or omission 
 ■of the luords will depend upon the nature of the particular trans- 
 action. As a inatter ofpolioy, the words are hest omitted, especially 
 in small transactions: — Vith power, if necessary, to break open 
 any gates and any outer and inner doors and any windows and 
 skylights of the said premises] without any molestation or inter- 
 ruption by the hirer or any person acting or purporting to act 
 on his behalf, and without being liable for any damage that may 
 be caused by any such entry, or to any action or other proceedings 
 •on the part of the hirer, or any person claiming through, under, 
 or in trust for the hirer in respect thereof, or in respect of the 
 temporary occupation or possession of the premises whereon or 
 wherein the said chattels or any of them may for the time being 
 be placed, or be supposed to be placed, for such time as may be 
 reasonably occupied in effecting such seizure, taking possession 
 and removal, or attempting so to do. And the owner may at any 
 time, either before or after the determination of the hiring, pay 
 any sum or sums which the owner may deem it advisable to pay 
 for the protection of the said chattels, or for the purpose of re- 
 gaining possession of the same, and thereujpon all such payments 
 (made in respect of money lawfully owing by the hirer to third 
 parties) [together with interest thereon at the rate of £5 per cent, 
 per annum] shall forthwith become due and payable by the hirer 
 to the owner. 
 
 10. If the hiring determines under clause 8 of this agreement, 
 the owner may, notwithstanding the seizure of the said chattels 
 
PRECEDENTS. 175 
 
 or the return of the same, either by the act of the hirer or under 
 process of law, recover by action from the hirer all rent in arrear 
 at the date of the determination of the hiring, and also a sum 
 equivalent to the further amount of rent which would have accrued 
 if the hiring had not determined, calculated to the date of the 
 seizure or return of the said chattels, and any costs, expenses, and 
 payments incurred or made by the owner in connection with tracing 
 and obtaining possession of the said chattels, or otherwise, and 
 all other moneys due from the liirer to the owner under this agree- 
 ment, and also all loss and damage which the owner may sustain 
 in consequence of any breach by the hirer of the terms of this 
 agreement, and the hirer shall not, on any ground whatever, be 
 entitled to any allowance, return, or set-ofE. 
 
 11. If the hiring determines under clause 8 of this agreement, 
 and if, immediately upon such determination, the hirer delivers up 
 the said chattels to the owner, or permits the owner to retake 
 possession of the same without molestation or interruption, then 
 the hirer shall have the right either to purchase the said chattels, 
 provided he pay to the owner, within twenty-one days of such 
 determination, a sum which together with the sum paid by the 
 hirer on the signing of this agreement and the sums paid by him 
 for rent will amount to £ , or to resume the hiring upon 
 
 terms and conditions similar to those of this agreement, and as if 
 no breach of this agreement had been committed by the hirer, 
 provided the hirer, within twenty-one days of such determination, 
 produce a guarantor to the satisfaction of the owner for the due 
 performance of the terms of a fresh agreement to be entered into 
 between the parties. Provided also that, in either case, the hirer 
 shall, within twenty-one days of such determination, also pay to 
 the owner all moneys due from the hirer to the owner under this 
 agreement at the date of such determination, and also pay to the 
 owner all costs, charges, payments, and expenses incurred, made, 
 or sustained by the owner in or about tracing, seizing, taking and 
 obtaining possession of the said chattels, and in or about the re- 
 moval, carriage, warehousing and re-delivery of the same. Provided 
 also that, until the hirer shall have fully complied with the stipu- 
 lations of this clause, the hirer shall not (after the hiring hasi 
 determined under clause 8 hereof) have, or be deemed to have, any 
 right of property or beneficial interest in the said chattels. 
 
 [_N.B. — Before adopting the following clause, read the note 
 at the foot of this Precedent.'] 
 
 12. If the hiring determines under clause 8 of this agreement; 
 and if, at the date of such determination, the hirer shall be the 
 tenant of the premises in which the said chattels sihall then be 
 
176 APPENDIX. 
 
 placed, and if, upon a demand for the said chattels being made by, 
 or on behalf of the owner (which demand, if verbal, may be made- 
 upon any person at the said premises, or, if in writing, may be 
 served upon the hirer personally, or left for the hirer at the last- 
 known place of abode or business of the hirer in the United 
 Kingdom, or affixed or left for the hirer on the said premises, or 
 sent by post addressed to the hirer at the aforesaid place of abode 
 or business, or at the said premises), the hirer (being such tenant 
 as aforesaid) shall not immediately deliver up the said chattels to- 
 the owner, or permit the owner to retake possession of the same 
 without molestation or interruption, this agreement, on the part of 
 the owner and the hirer, shall, ipso facto, cease and determine'- 
 and become absolutely void. 
 
 In witness whereof the said parties hereto have hereunto set 
 their hands [or, the owner hath caused its common seal to be, 
 hereunto affixed and the hirer hath hereunto set his hand and 
 seal; or, the said , or, the said Director (on behalf of the: 
 
 owner) and the hirer have hereunto set their hands]. 
 
 The Schedule above referred to. 
 
 [To contain detailed particulars of the chattels.} 
 
 [Signature of owner.] 
 Signed by the owner ) 
 in the presence of ' 
 
 [Signature of hirer.]' 
 Signed by the hirer ) 
 in the presence of .' 
 
 If the agreement is sealed by a company, the attestation will be 
 in the following or such other form as may be required by the: 
 articles of association: — 
 
 The Common Seal of A. B. & Co., Ltd., 
 was affixed hereto, pursuant to a 
 Eesolution of the Board of Directors, 
 in the presence of 
 
 J Directors.. 
 
 , Secretary. 
 
 Note. — Whether the hirer is a tenant or not, all the clauses of' 
 the above Precedent may be used. 
 
 After clause 11, in the present uncertain state of the law, as 
 explained on p. 92, ante, and following pages, it will be advisable 
 
PRECEDENTS. 177 
 
 to attempt to draw a hire-purchase agreement in such a form that, if 
 the hirer is a tenant, the chattels can be made to cease to be com- 
 prised in the agreement. 
 
 If it should hereafter be held that a hire-purchase agreement 
 " made " by a tenant does not mean an agreement by which goods 
 are let to a tenant, clause 12 will be omitted. 
 
 The chief effect of clause 12 will be that, after the agreement is 
 determined, the owner will not possess any express licence to enter 
 to seize the goods. It should, however, be carefully considered 
 whether the facts in any particular case may not confer upon the 
 owner an implied licence. See the notes on this point on p. 64, 
 ante. 
 
 If no implied licence exists, the owner will have to recover his 
 goods by means of an action in detinue, which he can bring under 
 the condition implied at common law that, on the determination of 
 a bailment, the goods shall be restored by the bailee. 
 
 The demand of the goods, which is a necessary preliminary tO' 
 an action in detinue, will (if possession of the goods is not obtained) 
 take them out of the order and disposition of a hirer who is a 
 tenant. 
 
 Precedent No. 2. 
 
 HIKE-PUECHASE AgbEEMENT — GuARANTOE JOINING. 
 
 THIS AGEEEMENT made the day of , 19 , 
 
 Between [^Name, address, and business of owner. If the oivner 
 is a limited company, describe it as in Precedent No. l.J (herein- 
 after called "the owner") of the first part, [iVame, address, and 
 profession or occupation of hirer~\ (hereinafter called "the hirer") 
 of the second part, and [Name, address, and profession or occupation 
 of guarantor'] (hereinafter called "the guarantor") of the third 
 part. 
 
 Whereas the owner is now the sole, absolute, and beneficial 
 owner of the chattels hereinafter described, and the same are hereby 
 expressly admitted by the hirer and the guarantor to be now in 
 good [and perfect working] order and condition (the owner not 
 being responsible for any warranty) and are also admitted by the 
 hirer and the guarantor, for the purposes of this agreement, to 
 be of the present total valxie of £ 
 
 And whereas the hirer and the guarantor have requested the 
 owner to let the said chattels on hire to the hirer, and the owner 
 has agreed so to do, at the rent and upon the terms and conditions 
 hereinafter appearing. 
 
 Now THIS Agreement witnessbth that, pursuant to the said 
 
 12 
 
178 APPENDIX. 
 
 requests, and in consideration of the sum of £ (to be credited 
 
 as hereinafter mentioned) now paid by the hirer to the owner 
 for the option of purchase hereinafter contained (the receipt 
 whereof is hereby acknowledged), and also in consideration of the 
 rent hereinafter reserved, and of the agreements and undertakings 
 •on the part of the hirer and the guarantor hereinafter contained, 
 it is mutually agreed between the parties hereto as follows: — 
 {_Insert such of the clauses 1 to 12, in Precedent No. 1, as 
 may be desired.'] 
 
 13. The guarantor, in consideration of the agreements on the 
 part of the owner hereinbefore contained, hereby agrees and under- 
 takes that he will pay to the owner, on demand, at the address for 
 the time being of the owner, all and every such sums and Sum of 
 money as shall from time to time, or at any time hereafter, become 
 due to the owner from the hirer under the terms of this agreement, 
 and also will indemnify the owner against all loss, damage, and 
 expenses which the owner may sustain or incur by reason or on 
 account of any breach, neglect, misperformance, or non-performance 
 on the part of the hirer, of the terms of this agreement, or any of 
 them. 
 
 14. The neglect or forbearance of the owner to require or enforce 
 payment of any money due under this agreement from the hirer to 
 the owner, or the giving of time by the owner to the hirer [or any 
 alteration in the partnership, proprietorship, or constitution of the 
 owner's firm, or their assigns], shall not prejudice the owner's, 
 strict rights, or aflect the liability of the guarantor, under this 
 agreement, any rule of law or equity to the contrary notwith- 
 standing. 
 
 15. The expressions " the owner," " the hirer," and " the guaran- 
 tor " used in this agreement shall, where the context admits, include 
 the executors, administrators, and assigns, and successors in busi- 
 ness of the owner, and the respective executors and administrators 
 of the hirer and the guarantor, and the permitted assigns of the 
 hirer. 
 
 [Signature of owner.] 
 
 [Signature of hirer.] 
 [Signature of guarantor.] 
 
 Signed .by the owner in 
 the presence of 
 
 Signed by the hirer in ) 
 the presence of ) 
 
 Signed by the guarantor 
 in the presence of 
 
PRECEDENTS. 179 
 
 Precedent No. 3. 
 
 Guarantee to Owners of Hired Goods by separate Document. 
 
 To \^Name, address, and business of owners^. 
 
 In consideration of your letting on hire [or, on the hire-purchase 
 system] at my request to [^Name, address, and profession or occupa- 
 tion of hirer'] (hereinafter called " the hirer ") \^JDescription of 
 chattels'], I, the undersigned [^Name, address, and profession pr 
 ■occupation of guarantor], hereby guarantee the payment to you 
 •of all and every such sum and sums of money as shall, from time to 
 time or at any time hereafter, become due from the hirer under 
 the terms of his agreement with you. And I also undertake to 
 indemnify you against all loss, damage, and expenses which may 
 be sustsiined or incurred by reason or on account of any breach 
 neglect, misperformance, or non-performance on the part of the 
 -hirer of the terms of his agreement or any of them. And I autho- 
 rise you to grant or allow any time, relaxation, or indulgence to 
 the hirer, and to make any composition with him as you may 
 tliink fit. And I declare that the giving of such time, relaxation, 
 and indulgence, or compounding, shall not discharge my liability 
 to you. And I further declare that this guarantee is given to your 
 jpresent firm, and any future members or proprietors thereof, and 
 shall continue in force notwithstanding any alteration in the part- 
 jiership, proprietorship, or constitution of your firm. 
 
 Dated this day of , 19 . 
 
 ^Signature of guarantor.] 
 
 Signed by the said ^guarantor] ) 
 in the presence of ) 
 
 PAET II. 
 
 Alternative and Additional Clauses for insertion in the 
 Precedents in Part I. 
 
 Note. — The use of some of these clauses may make it impossible 
 to determine the agreement when the hirer is a tenant. 
 
 Alternative Clause as to Payment of Eent by reference to a 
 
 Schedule. 
 
 Instead of the provisions as to payment of rent in clause 2 of 
 the first Precedent in Part I., the following clause is sometimes 
 Jound convenient: — 
 
 The hirer will, during the continuance of the hiring, punctually 
 
 12(2) 
 
180 
 
 APPENDIX. 
 
 pay to the owner, at the address for the time being of the owner, and 
 without previous demand, as rent for the hire of the said chattels, 
 the respective sums mentioned in the first column of the [Second] 
 Schedule hereto, upon the respective dates mentioned in the second 
 column of such Schedule. 
 
 The Schedule, containing particulars ,pf the rent, will follow 
 the Schedule {if any) containing the description of the chattels,-and 
 will be as follows: — 
 
 The [Second] Schedule above referred to. 
 
 Amount of Rent payable. 
 
 Dates when payable. 
 
 £ s. d. 
 50 6 8 
 
 2nd January, 1914. 
 
 50 6 8 
 
 2nd July, 1914. 
 
 50 6 8 
 
 2nd January, 1915. 
 
 50 6 8 
 
 2nd July, 1915. 
 
 50 6 8 
 
 2nd January, 1916. 
 
 98 6 8 
 
 2ud July, 1916. 
 
 ;£.350 
 
 Eent to be secured by Bills or Pkomissory Notes. 
 
 The respective [quarterly] payments of the said rent shall (sub- 
 ject to the rights of the hirer under clauses 4 and 5 hereof) be 
 secured by the delivery to the owner from time to time, at the 
 request of the owner, of bills of exchange or promissory notes, 
 accepted or signed by the hirer. Provided that the delivery of 
 such bills of exchange or promissory notes shall be by way of 
 collateral security only and not as conditional payment, and such 
 bills of exchange or promissory notes shall not be deemed to be 
 discharges for the said respective [quarterly] payments of rent 
 until they shall have been honoured, and the said respective [quar- 
 terly] payments of rent shall be deemed to be made on the respective 
 dates on which the said bills of exchange or promissory notes shall 
 be respectively paid, and not on the respective dates on which the 
 same shall be delivered to the owner. Provided also, that if the 
 hiring is terminated or determines under clause 5 or clause 8 of 
 this agreement, the owner shall re-deliver to the hirer any bills 
 
PRECEDENTS. 181 
 
 of exchange or promissory notes previously delivered by the hirer 
 to the owner and accruing due after such termination or deter- 
 mination of the hiring, or, if any of such bills of exchange or 
 promissory notes have been discounted, shall indemnify the hirer 
 against the same. Such discounting shall in no way prejudice 
 the right of the owner to retalte possession of the' said chattels under 
 any power conferred by this agreement. 
 
 Interest to be Paid on Eent in Aree.^e. 
 
 If default is made in payment of any [quarterly] payment of the 
 said rent, the hirer shall pay to the owner interest on the [quarterly] 
 payment in respect of which default is made at the rate of £5 per 
 cent, per annum from the day on which such [quarterly] payment 
 shall become due until actual payment, but this provision shall 
 in no way prejudice the right of the owner to retake possession 
 of the said chattels under any power conferred by this agreement. 
 
 Owner's Name-plates. 
 
 The hirer will, during the continuance of the hiring, keep the 
 said chattels marked as being the property of the owner in such 
 manner as the owner may require, and the plates attached to the 
 said chattels inscribed with the words "A. B., London, Owner and 
 Lessor," shall be kept attached thereto for the purpose of making 
 the ownership publicly known, and such plates shall not be re- 
 moved or defaced by the hirer [or, the hirer will allow plates to be 
 fixed, and any number or mark put on the said chattels, with the 
 name and address of the owner as owner and lessor thereon, and 
 will allow such plates, numbers, and marks to remain, and will keep 
 the same so put and fixed thereon]. If any such plate shall be 
 injured or defaced, the hirer shall forthwith restore the same to 
 its former condition. 
 
 Eire Insurance. 
 
 Full General Clause. 
 
 The hirer will insure and keep insured the said chattels against 
 loss or damage by fire, to the full value thesreof , in the name of the 
 owner, in some insurance office approved by the owner, and will 
 punctually pay all premiums and other sums of money necessary 
 for effecting and keeping up the said insurance, and will deliver 
 to the owner the policy of such insurance and the receipt for every 
 premium payable in re.spect thereof. Provided that, in case default 
 
182 APPENDIX. 
 
 shall at any time be made by the hirer in effecting or keeping on 
 foot such insurance, the owner may insure and keep insured the 
 said chattels in the full value thereof, and all monies expended 
 for that purpose by the owner, together with interest thereon at 
 the rate of £5 per cent, per annum, shall on demand be repaid by 
 the hirer to the owner. And in case the said chattels or any of 
 them shall be damaged or destroyed by fire, the owner shall bei 
 entitled to and shall be paid the amount recoverable under or by 
 virtue of the said insurance, and such amount, so far as the sam.e 
 will extend, shall be credited to the hirer on account of his liability 
 to the owner, under clause 7 of this agreement, to indemnify the 
 owner against all loss of or damage to the said chattels. 
 
 Pike Insurance. 
 
 Special Clause as to Motor Car. 
 
 The hirer will forthwith insure and keep insured the said motor 
 car, lamps, accessories, fittings, and spare parts, against risk of 
 accidents to the public, damage by accidental collision or impact 
 with any object, or by malicious injury, loss by burglary, house- 
 breaking, and theft, and damage and loss by fire, lightning, ex- 
 plosioii, and self -ignition, to the full value of the same, in the 
 name of the owner, in some insurance office approved by the owner, 
 and will punctually pay all premiums and othei; sums of money 
 necessary for effecting and keeping up the said insurance, and 
 will deliver to the owner the policy of such insurance and the 
 receipt for every premium payable in respect thereof. And the 
 hirer will not do any act, or suffer anything to be done whereby or 
 by reason whereof the policy of insurance may be rendered void or 
 voidable, or the premium increased. Provided that, in case default 
 shall at any time be made by the hirier in effecting or keeping on 
 foot the said insurance, the owner may insure and keep insured 
 the said motor car, lamps, accessories, fittings and spare parts, 
 in the full value thereof, and all monies expended for that purpose 
 by the owner, together with interest thereon at the rate of £5 per 
 cent, per annum, shall on demand be repaid by the hirer to the 
 owner. And in case of any damage, loss, or destruction by acci- 
 dent, malicious injury, burglary, housebreaking, theft, fire, light- 
 ning, explosion or self-ignition, the owner shall be entitled to and 
 shall be paid the amount recoverable under or by virtue of the 
 said insurance, and such amount, so far as the same will extend, 
 shall be credited to the hirer on account of his liability to thei 
 owner, under clause 7 of this agreement, to indemnify the owner 
 
PRECEDENTS. 18!^ 
 
 against all loss of or damage to the said motor car, lamps, acces- 
 sories, fittings, and spare parts. And the hirer will indemnify 
 and save harmless the owner against all liabilities for claims by 
 third parties in respect of any damage caused by the said motor 
 car whilst in the possession of the hirer. 
 
 If Chattels seized by Third Pabty, Hirer to give Notice to 
 
 Owner. 
 
 If the said chattels, or any of them, are seized, removed, or taken 
 out of the possession of the hirer, the hirer shall, within twenty-four 
 hours, give written notice to the owner of such seizure, removal, or 
 taking, and shall also furnish the owner with the address of the 
 place to which the said chattels, or any of them, are removed. 
 
 PAET III. 
 Clauses, &c. relating to Mortgage of Hirer's Premises. 
 
 Clause foe insertion in Hire-Pueohase Agreement. 
 
 The hirer hereby declares, and it is hereby agreed, that the said 
 chattels are let on hire to him by the owner upon this express repre- 
 sentation that the premises situate and being No. , Street, 
 in the Parish of , in the County of , which are the property 
 of the hirer and in which the said chattels are intended to be placed, 
 are not mortgaged, charged, or incumbered in any way, and are 
 not subject to any deed or document by which any person, other 
 than the hirer, may become entitled to take possession of the said 
 premises. And if the hirer shaj.1, du(ring the hiring, propose to 
 [if desired, the words sell, exchange, lease, might he inserted'] 
 mortgage or charge the said premises or any other authorised 
 premises wherein the said chattels may for the time being be placed, 
 he shall give notice in writing of his intention in that behalf to the 
 owner, by posting a registered letter containing a notice, setting, 
 forth full particulars of the proposed transaction, and addressed 
 to the owner at the address for the time being of the owner, every 
 letter under this clause being posted not less than one calendar 
 month before the making by the hirer of the proposed [sale, ex- 
 change, lease] mortgage, or charge, or a contract for the same. 
 And if the intended mortgage or charge shall be effected, the 
 hirer will forthwith supply to the owner, in manner aforesaid, 
 written particulars setting forth the date of the document, with 
 the full names, addresses, and professions or occupations of the 
 
184 APPKNDIX. 
 
 parties to the same, together Tvith the amount of the principal 
 sum, and the rate of interest thereon, secured by such mortgage or 
 ■charge, and the dates on which such interest is made payable, and 
 ihe hirer shall, in the case of a further charge or transfer of a; 
 mortgage or charge, immediately upon the execution thereof, 
 furnish to the owner similar particulars in a like manner. And 
 the hirer will regularly and punctually pay the said interest, and 
 take receipts therefor, and will, when demanded in writing or other- 
 wise, produce to the owner, or his agent, the receipt for the last 
 payment due in respect of such interest. And will not do, or 
 suffer to be done, any act whereby a legal or equitable mortgagee 
 may become entitled to take possession of the said premises, OD 
 the said chattels or any of them. And in case the principal sum 
 secured by any mortgage or charge shall be called in, or any action, 
 suit, or other proceeding shall be commenced against the hirer in 
 respect thereof, or if any mortgagee or other person shall become 
 entitled to take possession of the said premises, the hirer will 
 forthwith give notice of the facts to the owner in manner afore- 
 said. Provided always that no such [sale, exchange, lease] mort- 
 gage, charge, or further charge, shall be effected by the hirer 
 without the consent in writing of the owner first had and obtained. 
 
 Statutory Declabation by Hiebr that his Premises are not 
 
 Mortgaged. 
 IStamp 2s. 6d.'] 
 
 I l^Name, address, and business of hirer] do solemnly and sin- 
 cerely declare as follows: — 
 
 1. That I am about to sign a Hire-Purohase Agreement, already 
 prepared and engrossed, and intended to bear even date with this 
 my Statutory Declaration, and made between IName, &c. of owner} 
 of the one part and myself of the other part, whereby the said 
 [owner] agrees to let and I agree to hire certain fixed and move- 
 able machinery, implements, appliances, and effects, which are in- 
 iended to be placed in and about the mill and factory situate 
 in Street, in the Town of , in the County of 
 
 and commonly called "The Mill," and which said chattels 
 
 are more particularly described in the [First] Schedule to the said 
 Agreement. 
 
 2. That I am now seised of tjie said hereditaments called 
 " The Mill " aforesaid for an absolute estate of inheritance 
 in fee simple in possession, and that the same are not subject to 
 any mortgage, charge, debenture, debenture trust deed, or other 
 incumbrance. 
 
PRECEDENTS. 185 
 
 3. That I have requested the said [owner] to let the said chattels 
 on hire to me upon the express representation of the truth of 
 each and all of the statements in this Declaration contained. 
 
 4. And I make this solemn Declaration conscientiously believing 
 the same to be true and by virtue of the provisions of The Statutory 
 Declarations Act, 1835. 
 
 [Signature of hirer.] 
 Declared at , in the County 
 
 of , this day of , 
 
 19 , 
 
 Before me, 
 
 A Commissioner for Oaths. 
 
 Clauses foe insektion in a Moetgage op the Hiker's Premises, 
 IN WHICH Chattels comprised in a Hire-Puechase Agree- 
 ment ARE PLACED, WITH THE OBJECT OF PREVENTING THE 
 
 Chattels passing to a Mortgagee, &c. 
 
 And the mortgagee for himself and his heirs, executors, ad- 
 ministrators, and assigns, and with intent to bind all persons in 
 whom the said hereditaments shall for the time being be vested, 
 hereby covenants with the mortgagor and the persons claiming 
 under him, that if the mortgagor shall, at any time during the 
 continuance of this security, obtain from the owner thereof, under 
 any hire-purchase agreement, any machinery, erection, or other 
 chattels, and shall place, erect, or affix the same in, on, or to the 
 said hereditaments hereinbefore described and expressed to be 
 hereby conveyed, or use the same in, on, or about the said heredita- 
 ments in such a manner that the said chattels would in law be 
 deemed to have become fixtures passing with the said hereditaments 
 under any conveyance or other assurance thereof, such chattels 
 shall not be deemed to be fixtures until they shall have become the 
 property of the mortgagor, but shall be deemed to remain chattels, 
 removable by the owner for the time being thereof or by the mort- 
 gagor without the consent of the mortgagee, and shall not become 
 the property of the mortgagee or of any other person by virtue of 
 these presents, or in consequence of the mortgagee entering into 
 possession of the said hereditaments, or obtaining a foreclosure 
 order, or by virtue of any conveyance or other assurance of the 
 said hereditaments. And if there shall be any breach or non- 
 performance by the hirer of the provisions of the said hire-purchase 
 agreement, the owner for the time being of the said chattels may 
 at any time, and from time to time, enter upon the said heredita- 
 
186 APPENDIX. 
 
 ments and seize, sever, and remove the said chattels therefrom. 
 And the mortgagee hereby irrevocably appoints the mortgagor his 
 attorney to do all acts and things necessary for the purpose of 
 enabling the owner for the time being of the said chattels to seize, 
 sever, and remove the same as aforesaid. Provided always, that 
 in the removal of the said chattels no unavoidable damage shall 
 be done to the said hereditaments, or any part thereof, and that 
 immediately after the removal of the said chattels the mortgagor 
 shall make good all damage occasioned to the said hereditaments 
 by such removal and shall indemnify the mortgagee against the 
 same. Peovidbd also, that the said chattels or any of them shall 
 not be removed without the owner for the time being thereof, or 
 the mortgagor, giving to the mortgagee one calendar month's pre- 
 vious notice in writing of the intention to remove. And pbovided 
 ALSO, that at any time before the expiration of the notice of removal, 
 the mortgagee, by notice in writing given by him to the owner of 
 the said chattels, or to the mortgagor, may elect to purchase the 
 said chattels, which shall then not be removable, but shall' become 
 the property of the mortgagee upon payment by him to the o-w;ner 
 of the said chattels, within one calendar month of the election to 
 , purchase, of the amount which would be then payable to such 
 owner by the mortgagor under the said hire-purchase agreement, 
 if the mortgagor were then to elect to become the purchaser of 
 the said chattels. And it is heeeby declared that, for the pur- 
 pose of the foregoing covenants and provisoes relating to a hire- 
 purchase agreement as aforesaid, the expressions " the mortgagor," 
 " the mortgagee," and " the owner " include, besides the mortgagor, 
 the mortgagee, and the owner, their respective heirs, executors, 
 administrators, and assigns, and the successors in business of the 
 owner. 
 
 PAET IV. 
 HIGH COURT FORMS. 
 Indorsements of Writ. 
 
 Arrears of Hire. 
 
 The plaintiff's claim is for arrears iof rent for the hire of 
 machinery, under an agreement in writing dated the 2nd day of 
 January, 19 , and made between the plaintiff of the one part and 
 the defendant of the other part. 
 
HIGH COURT FORMS. 187 
 
 Particulars: — 
 
 19 . £ 
 
 2 February — One month's rent due this day 30 
 
 2 March— The like 30 
 
 Amount due £60 
 
 Guarantee. 
 
 Against Principal and Ouarantor. 
 
 The plaintifi's claim is against the defendant A. B. as principal, 
 and against the defendant 0. D. as guarantor, under an agreement 
 in writing dated the 2nd day of January, 19 , and made between 
 the plaintiff of the first part, the defendant A. B. of the second 
 part, and the defendant 0. D. of the third part, for arrears of 
 rent for the hire of machinery. 
 Particulars: — 
 
 19 . £ 
 
 2 February — One rdonth's rent due this day 30 
 
 2 March— The like 30 
 
 Amount due £60 
 
 GUABANTEE. 
 
 Against Guarantor Alone. 
 
 The plaintiff's claim is against the defendant as guarantor for 
 A. B., of, &c., under an agreement in writing dated the 2nd day 
 of January, 19 , and made between the plaintiff of the first part, 
 the said A. B. of the second part, and the defendant of the third 
 part, for arrears of rent for the hire of machinery. 
 Particulars: — 
 
 19 . £ 
 
 2 February — One month's rent due this day 30 
 
 2 March— The like 30 
 
 Amount due £60 
 
 Money Paid. 
 
 Owner against Hirer. 
 
 The plaintiff's claim is against the defendant for money paid by 
 the plaintiff for the defendant, at the request and by the authority 
 
188 APPENDIX. 
 
 of the defendant, under an agreement in writing dated the 2nd 
 day of January, 19 , and made between the plaintiff of the one 
 part, and the defendant of the other part. 
 Particulars: — 
 
 19 . £ 
 2 March — Amount paid by the plaintiff to A. B., of, &g., 
 to redeem from distress goods let on hire by 
 the plaintiff to the defendant under the above- 
 mentioned agreement 
 
 Or, 
 2 March — Amount paid by the plaintiff to 0. D., of, &c., 
 to release from a lien, wrongfully created by 
 the defendant, goods let on hire by the plain- 
 tiff to the defendant under the above-men- 
 tioned agreement 
 
 Amount due £ 
 
 MoTOE Oak. 
 
 Option — Lien — Repairs — Owner against Purchaser. 
 
 The plaintiff's claim is £66 4s. Id., as to £20 for the agreed, 
 price of one month's option granted by the plaintiff to the defen- 
 dant for the purchase, of a motor car, and alternatively for one 
 month's use of the said tnotor car, and as. to thetemainder for money 
 paid to release garage proprietor's lien on tiie said motor car and 
 the costs of repairs to the same, for which the defendant agreed to 
 be responsible. 
 Particulars: — 
 
 19 . £ s. d. 
 
 2 March — To sum agreed to be paid by the defen- 
 dant for one month's option (for purchase 
 of motor car belonging to the plaintiff, 
 or alternatively for use of the said oar 
 
 for one month from this date 20 
 
 14 April — To amount paid to proprietors of garage 
 where the defendant had placed the said 
 
 car to release their lien thereon 23 17 6 
 
 14 April — To expenses incurred by the plaintiff in 
 repairing damage done to the said car 
 for which the defendant agreed to be 
 responsible 22 6 7 
 
 Amount due 66 4 1 
 
HIGH COUKT FORMS. 18& 
 
 Detinue. 
 Owner against Hirer. 
 
 The plaintiff's claim is against the defendant for the return of 
 \_For the purpose of identification describe the chattel specifically 
 thus'], a grand pianoforte in rosewood case, manufactured by 
 BechsteiBj and numbered 999, wrongfully detained by the defen- 
 dant, or (if the same cannot be found) its value, and for damages 
 for its detention. 
 
 [To provide for the contingency of being unable to obtain judg- 
 ment for the return of the specific chattel, an alternative claim 
 for conversion may sometimes be thought desirable, thus : — ] In the 
 ■alternative, the plain tiif claims damages for wrongiuUy depriving 
 him of the said pianoforte. 
 
 {The following liquidated claim may also he endorsed: — ] The 
 plaintiff also claims, under an agreement in writing dated the 2nd 
 day of January, 19 , and made between the plaintiff of the one 
 part and the defendant of the other part, the sum of £10 for 
 arrears of rent for the hire of the said pianoforte. 
 
 Particulars: — 
 
 19 . £ 
 
 2 June — One month's rent due this day 5 
 
 2 July— The like 5 
 
 £10. 
 
 [The claim for rent will, of course, be only for arrears accrued 
 due before the wrongful detention. '\ 
 
 Detinue. 
 Owner against Hirer's Transferee. 
 
 The plaintiff's claim is against the defendant for the return of a 
 grand pianoforte in rosewood case, manufactured by Bechstein, 
 and numbered 999, wrongfully detained by the defendant or (if 
 the same cannot be found) its value, and damages for its detention. 
 
 [In the alternative, the plaintiff claims damages for wrongfully 
 depriving him of the said pianoforte.] 
 
 CONVBESION. 
 
 Owner against Hirer. 
 
 The plaintiff's claim is against the defendant for damages for 
 wrongfuUy depriving plaintiff of a pianoforte. 
 
190 APPENDIX. 
 
 \The following liqmdated claim may also be endorsed in respect 
 ■of arrears of rent accrued due before (he conversion : — ] The plain- 
 tiff also claims, under an agreement in writing dated the 2nd 
 day of January, 19 , and made between the plaintiff of the one 
 part, and the defendant of the other part, the sum of £10 for 
 arrears of rent for the hire of the said pianoforte. 
 Particulars: — 
 
 19 . £ 
 
 2 June — One month's rent due this day 5 
 
 2 July— The like 6 
 
 £10 
 
 Conversion. 
 
 Owner against Hirer's Transferee. 
 
 The plaintiff's claim is against the defendant for damages for 
 wrongfully depriving plaintiff of a pianoforte. 
 
 Weongful Distebss. 
 
 The plaintiff's claim is for damages for improperly distraining. 
 
 [This is the form given in Appendix A to the Supreme Court 
 Mules, where it is stated that it shall be sufficient whether the 
 ■distress complained of be wrongful, or excessive, or irregular, and 
 whether the claim be for damages only or for double, value. It 
 is, of course, not applicable where the action takes the form, of ■■one 
 for detinue, as to which see above.] 
 
 Trespass to Goods'. 
 
 The plaintiff's claim is against the defendant for wrongfully 
 .sfeizing and taking away plaintiff's furniture, and depriving plain- 
 tiff of the use of and injuring the same. 
 
 COUNTY COURT FORMS. 
 Particulars of Claim, &c. 
 
 Combined Money Claims. 
 
 The plaintiff's claim is £39, the amount due to him from the 
 defendant in respect of a pianoforte belonging to the plaintiff 
 and let on hire by him to the defendant under an agreement in 
 writing dated the 2nd day of January, 19 . 
 
COUNTY COURT FORMS. 191 
 
 Particulars: — 
 
 £ s. d. 
 2nd January, 19 . — Three months' rent due to this 
 
 date at £3 per month 9 
 
 Charges for one year's tuning 10 
 
 Damages caused to the pianoforte by damp 5 
 
 Messrs. Carpenter & Co.'s bill for repairing the 
 
 pianoforte 3 
 
 Expenses incurred by the plaintifE in tracing the 
 
 pianoforte 2 
 
 Expenses of representative attending to demand the 
 
 return of the ]pianof orte 1 
 
 Men's time and horse and van removing the piano- 
 forte 2 
 
 Eailway carriage 1 
 
 Depreciation in value of pianoforte 10 
 
 General damages for breach of the agreement 5 
 
 Amount claimed £39 
 
 Detinue. 
 Affidavit ■for Leave to issue Summons out of the District. 
 
 No. of Plaint— A. 854. 
 In the County Court of Gloucestershire holden at Cheltenham. 
 
 I, A. B., of Street, Cheltenham, in the County of Gloucester, 
 
 Commercial Clerk, make oath and say as follows:^ 
 
 1. That [Name, address and profession or occupation of pro- 
 posed defendant'] (hereinafter referred to as the proposed defen- 
 dant) is justly and truly indebted to [_Name, address and occupa- 
 tion of proposed plaintiff] in the sum of £2 17s. 9d. for hire and 
 tuning of a pianoforte, and the proposed plaintifi also claims to be 
 entitled to recover from the proposed defendant the said pianoforte 
 and also the sum of £5 5s. as damages for its detention. 
 
 2. That the cause of action, in respect of which the proposed 
 defendant is proposed to be sued, arose wholly or in part at Chelten- 
 ham, within the district of this Court. 
 
 3. That the facts relied on as constituting the alleged cause of 
 action or a part thereof are that default in payment of the said 
 sum of £2 17s. 9d. in respect of which and the other matters 
 aforesaid an action is proposed to be brought was made at the 
 place of business of the proposed plaintiff at Cheltenham aforesaid. 
 
192 APPENDIX. 
 
 and the proposed defendant has committed a breach of contract 
 to deliver up the said pianoforte at the place of business of the 
 proposed plaintiff at Cheltenham aforesaid. 
 
 4. And I further say that I am a person in the employ of the 
 proposed plaintiff, and that the facts herein deposed to are within 
 my own knowledge, and that I am duly authorised by the proposed 
 plaintiff to make this affidavit. 
 
 Detinue. 
 
 Owner against Hirer. 
 
 Tho plaintiff's claim is in respect of a pianoforte, numbered ISO, 
 manufactured by and belonging to him, wrongfully detained by 
 the defendant after demand duly made. 
 
 The plaintiff claims as follows: — 
 
 £ s. d. 
 A return of the pianoforte or (if the same cannot 
 
 be found) its value 25 
 
 General damages for the detention of the pianoforte 10 (> 
 [// special damage is claimed give particulars 
 as follows :^J 
 
 Expenses incurred in tracing the pianoforte 2 2 
 
 Expenses of representative to demand return of 
 
 pianoforte 110 
 
 Men's time and horse and van attending to remove 
 
 the pianoforte 1 10 O' 
 
 Depreciation in value of pianoforte 5 
 
 £44 13 0. 
 
 Two months' hire of the pianoforte due 2 January, 
 19 [i.e., before the wrongful detention^, at £1 
 per month 2 0' 
 
 Arrears of tuning charges 2 2 
 
 £48 15 
 
 In the alternative, as to the above claims amounting to the sum 
 of £44 13s. Od., the plaintiff claims the samie sum as damages for 
 wrongfully depriving him of the said pianoforte. 
 
COUNTY COURT FORMS. 195 ; 
 
 Detinue. 
 Owner against Hirer's Transferee. 
 
 The plaintiff's claim is in respect of a pianoforte, the proper-ty 
 of the plaintiff, wrongfully detained by the defendant. 
 
 The plaintiff is the owner of a pianoforte manufactured by him 
 and numbered 150, let on hire by the plaintiff to John Jackson 
 under an agreement in writing dated the 2nd day of January, 19 . 
 
 The said John Jackson, contrary to the terms of the said agree- 
 ment, has sold and delivered the said pianoforte to the defendant, 
 who has wrongfully refused to deliver up the same to the plaintiff 
 after demand duly made. 
 
 The plaintiff claims as follows: — 
 
 {The necessary particulars can he taken from the preceding 
 form.} 
 
 OONVEESION. 
 
 Owner against Hirer. 
 
 By an agreement in writing dated the 2nd day ot January, 19 , 
 and made between the plaintiff of the one part and the defendant of 
 the other part, the plaintiff let on hire to the defendant a piano- 
 forte manufactured by the plaintiff and numbered 150, the defen- 
 dant agreeing to pay the sum of £5 on the signature of the 
 agreement and the further sum of £25 at the rate of £5 per 
 month. 
 
 Contrary to the terms of the said agreement the defendant has 
 sold the said pianoforte, and prior to such sale made default in 
 payment of four monthly payments. 
 
 [// special damage is claimed, give particulars.] 
 
 The plaintiff claims: — 
 
 £ s. d. 
 
 1. Damages for the wrongful conversion of the 
 
 said pianoforte 10 
 
 2. Four monthly payments of £5 each 20 
 
 £30 
 13 
 
194 APPENDIX. 
 
 OONVEKSION. 
 
 Owner against Hirer's Transferee. 
 
 The plaintifE lias suffered damage by the defendant wrongfully 
 depriving the plaintifE of a pianoforte let on hire by the plaintifE 
 to John Jackson under an agreement in writing dated the 2nd 
 day of January, 19 . The plaintifE has duly demanded the said 
 pianoforte from the defendant, who has refused to give up the same. 
 
 The value of the said pianoforte is £35. 
 
 [// special damage is claimed, give particulars.} 
 
 The plaintifi claims £45. 
 
 Illegal Distress. 
 Olaim'hy Owner under The Distress Act, 1908. 
 
 By an agreement in writing dated the 2nd day of January, 19 , 
 and made between the plaintiff of the one part, and Mary Jack- 
 son, the wife of John Jackson, of the other part, the plaintifE let 
 on hire to the said Mary Jackson a pianoforte, manufactured by 
 the plaintifi and numbered 150, and the plaintifi was at the date 
 of the distress hereinafter mentioned and is now entitled to the 
 possession of the said pianoforte. 
 
 On the 7th day of October, 19 , the defendant distrained upon 
 the said pianoforte for arrears of rent alleged to be due from the 
 said John Jackson to the defendant. 
 
 On the 9th day of October, 19 , the plaintifi duly served upon 
 the defendant a declaration and inventory in writing in the form 
 prescribed by The Law of Distress Amendment Act, 1908, but, 
 contrary to the provisions of the said Act, the defendant proceeded 
 with the said distress, and is wrongfully detaining the said piano- 
 forte from the plaintiff or has wrongfully converted the same to 
 his own use. 
 
 The plaintiff has duly demanded the said pianoforte from the 
 defendant, who has wrongfully refused to give up the same. 
 
 [// special damage is claimed, give particulars.] 
 
 The plaintiff claims the return of the said pianoforte or (if it 
 cannot be found) the sum of £25, its value. 
 
 The plaintiff also claims the sum of £5 for damages for the deten- 
 tion of the said pianoforte. 
 
 In the alternative, the plaintiff claims the sum of £30 for damages 
 for wrongfully depriving him of the said pianoforte. 
 
COUNTY COUKT FORMS. J 95 
 
 Illegal Distbess. 
 Claim by Hirer under The Distress Act, 1908. 
 
 By an agreement in writing dated the 2nd day of January, 19 , 
 and made between Brown & Oo. of the one part, and the plaintiff 
 of the other part, the said Brown & Oo. let on hire to the plaintiff 
 a pianoforte manufactured by the said Brown & Oo. and numbered 
 150. At the date of the distress hereinafter mentioned the said 
 pianoforte was in the lawful possession of the plaintiff, who was 
 then and is now entitled to the possession of the same. 
 
 On the 7th day of October, 19 , the defendant distrained upon 
 the said pianoforte for arrears of rent alleged to be due to the 
 defendant from John Jackson, of, &c. 
 
 On the 9th day of October, 19 , the plaintiff duly served upon the 
 defendant a declaration and inventory in writing in the form 
 prescribed by The Law of Distress Amendment Act, 1908 [if the 
 plaintiff is an undertenant or lodger and paid {or tendered] to the 
 defendant {or bailiff or other agent, cfec] the amount of rent then 
 due from the plaintiff to the said John Jackson], but, contrary to 
 the provisions of the said Act, the defendant proceeded with the 
 said distress, and is wrongfully detaining the said pianoforte from 
 the plaintiff or has wrongfully converted the same to his own use. 
 
 The plaintiff has duly demanded {continue as in previous forrrb]. 
 
 13(2) 
 
( 197 
 
 INDEX. 
 
 AccoKD \yD Satisfaction, 40. 
 
 Action, 
 
 conversion, 75, 158. 
 detinue, 75, 142. 
 
 Distress Act, 1908, provisions of, 89. 
 duress of goods, 49. 
 illegal distress, 163. 
 injunction against distress, 112. 
 irregular distress, 165. 
 
 none for goods sold or hired for illegal or immoral purpose, 21. 
 trespass to goods, 167. 
 And see CouflT FoEMS. 
 
 , Agent, 
 
 owner and hirer liable for acts of, 48, 69. 
 
 Agreed to buy Goods, 
 
 interpretation of the expression, 7. 
 
 Appkobation, 
 
 goods sent on approbation to a tenant as prospective hirer, not 
 liable to distress, 99. 
 
 Akeeaes op Hire, 
 
 may be recovered by owner, after seizure, 73. 
 otherwise, if hire-purchase agreement amounts to a contract 
 to buy, 73. 
 
 Assignment, 
 
 for benefit of creditors, 7. 
 
 of owner's reversionary interest or contractual rights, 80. 
 
 Attesting Witness, 
 
 when need not be called, 25. 
 
198 INDEX. 
 
 Attctioneek, 
 
 conversion by, 14. 
 
 protected by statute in certain cases, 15. 
 
 sale by, 14. 
 
 Bailee, 
 
 can maintain action against wrongdoer, on behalf of himself 
 
 and bailor, 46, 164. 
 hirer guilty of larceny, as, 10, 14. 
 infant may be guilty of larceny, as, 36. 
 And see HlBER. 
 
 Bankruptcy, 
 
 hire-purchase agreement, if a security, is void against trustee 
 
 in, 2. 
 property divisible amongst creditors, 57. 
 And see ORDER AND DISPOSITION or Bankrupt oe 
 Tenant. 
 
 Bill op Exchange, 
 
 effect of owner accepting, 41. 
 
 Bill or Sale, 
 
 absolute, followed by hire-purchase agreement, 3. 
 assignment of owner's reversionary interest is, but of 
 
 contractual rights is not, 80. 
 bond fide hire-purchase agreement is not, 2. 
 Distress Act, 1908, provisions of, 90. 
 hire-purchase agreement, given as a security, is, 2. 
 marshalling assets, in case of distress, 118. 
 
 Boarding House Keeper, 
 has no lien, 52. 
 
 Carrier, 
 
 carman undertaking casual jobs, 50. 
 
 furniture removers, 47, 50. 
 
 improper packing, 47. 
 
 Hen of, 50. 
 
 overcharges of, recovery of, 47. 
 
 when not liable for conversion, 158. 
 
' INDEX. 199 
 
 CHEftUE, 
 
 accei^terl " on account," 40. 
 effect of owner accepting, 41. 
 sent " in settlement," 40. 
 
 CoixATERAL Security, 
 
 negotiable instrument accepted a.s, does not suspend owner's 
 remedies, 43. 
 
 Company, 
 
 actions by, 31. 
 
 appearance bj', 31. 
 
 authority for declaration under Distress Act, 1908,.. 105. 
 
 certificate of incorporation, 30. 
 
 contracts with, 30. 
 
 County Court summons issued by, 31. 
 
 "person" includes, 30. 
 
 service on, 31. 
 
 Consent op the Owner, 
 
 interpretation of the term, 9. 
 
 Contractual Eights, 
 
 assignment or mortgage of, by owner, 80. 
 
 Conversion of Goods, 
 action for, 75, 158. 
 agent, when liable for, 160. 
 auctioneer, 14. 
 
 bargain and sale not conversion, 10. 
 conversion cannot be purged, 161. 
 County Court in which action may be brought, 163. 
 damages, 161. 
 definition of, 158. 
 evidence, 159. 
 
 Factors Act, provisions of, 6. 
 form of demand before action, 7H. 
 infant liable for, 35. 
 interest as damages, 161. 
 married woman liable for, 36. 
 market overt, 16. 
 owner may maintain action, without or irrespective of order of 
 
 restitution, 20. 
 owner may recover damages from hirer for, 6. 
 
 must send for goods demanded, 76. 
 
 of reversionary interest cannot sue for, 159. 
 
! 200 INDEX. 
 
 Conversion of Goods — continued. 
 pawnbroker, 12. 
 
 plaintiff must be entitled to immediate possession, 159. 
 position of carrier, packer, wareliouseman and wharfinger, 158. 
 presumption of value of goods, against person not producing 
 
 same, 161. 
 prosecution of guilty party, 78. 
 purchaser liable for, unless protected by statute, 16. 
 Sale of Goods Act, provisions of, 7. 
 satisfied or unsatisfied judgment, effect of, 74. 
 servant, 160. 
 
 sheriff and high bailiff, when not liable for, 55. 
 special damage may be recovered, 161. 
 Statute of Limitations, 162. 
 stolen horses, 17. 
 wilful wrong done by hirer is, but mere negligence is not, 47. 
 
 And see CouET Forms. 
 
 Costs, 
 
 detinue, 153. 
 distress, 125. 
 illegal distress, 165. 
 poundbreach, 124. 
 
 CorRT Forms (County Ootjrt), 
 
 aflB.davit for leave to issue summons out of district, 191. 
 demand before action in detinue, or for conversion, 76. 
 judgment in detinue, 156. 
 particulars of claim, 190. 
 
 CotTBT Forms (High Court), 
 
 demand before action in detinue, or for conversion, 76. 
 indorsements of writ, 186. 
 judgments in detinue, 150, 152. 
 
 notice, by owner to sheriff, of claim to goods taken in 
 execution, 54. 
 
 Credit, 
 
 representations, as to proposed hirei''s, to be in writing, 20. 
 
 Criminal OFrENCE, 
 
 as to prosecuting guilty party, before suing, 78. 
 
 Custom. See order and disposition of Bankrupt or Tenant. 
 
INDEX. 201 
 
 DAirAGES, 
 
 definition of " special damage," 147. 
 exemplarj', 147. 
 through, improper packing, 47. 
 And see CoNVEBSiON, Detinue, Illegal Distress and 
 Trespass to Goods. 
 
 Debenture-holders, 
 
 claims to fixtures, 139. 
 
 Deceased Person, 
 
 endorsement of service of notice, 78. 
 
 Default op Hirer, 
 
 owner entitled to retake possession, 59. 
 ■waiver of, 43. 
 
 Delivery or Transfer, 
 
 interpretation of the term, 9. 
 
 Detinue, 
 
 action for, 75, 142. 
 
 change in ownership of goods, S2. 
 
 costs, 153. 
 
 County Coiu't practice, 154. 
 
 damages, 146. 
 
 evidence, 144. 
 
 exemplary- damages, 147. 
 
 Factors Act, provisions of, 6. 
 
 form of demand before action, 76. 
 
 High Court practice, 148. 
 
 hirer liable although he has parted with goods, 145. 
 
 hirer cannot set up Statute of Limitations, 148. 
 
 husband cannot bring action against wife, 37. 
 
 infant liable in, 35. 
 
 judgment, eflect of satisfied or unsatisfied, 74. 
 
 form of, 152, 156. 
 lien, defence of, 53. 
 market overt, 16. 
 married woman liable for, 36. 
 metropolitan magistrate's jurisdiction, 19. 
 owner may maintain action, without or irrespective of order 
 
 of restitution, 20. 
 owner must send for goods, unless contract to the contrary, 76. 
 plaintiff must have right to immediate possession, 142. 
 
202 INDEX. 
 
 Detinue — amtiimed. 
 
 prosecution of guilty party, 78. 
 provincial justices' jurisdiction, 19. 
 Sale of Goods Act, provisions of, 7. 
 seizing goods after unsatisfied judgment, 73, 
 special damage may be recovered, 147. 
 Statute of Limitations, 148. 
 stolen horses, 17. 
 
 value of goods need not be assessed before execution for 
 specific delivery, 150, 157. 
 And see Court Forms. 
 
 Discount, 
 
 option to hirer, to jjurchase under, 172. 
 
 Distress Amendment Act, 1908, 
 
 detailed consideration of the provisions of, 89. 
 
 Distress for Eates, 
 
 hired goods are exempt, except under some private Acts, 127. 
 replevin, 128. 
 
 Distress for Eeni', 
 abandonment, 125. 
 advance, for rent payable in, 119. 
 
 agreement between landlord and owner, waiving right of, 117. 
 baUiff must be certificated, 119. 
 bill of sale, marshalling assets, 118. 
 clandestine removal of goods, 122. 
 company, effect of winding-up order, 118. 
 costs of, 125. 
 declaration by owner, &c. need not be a, statutory declaration, 
 
 104. 
 declaration may be signed by one member of a firm, 105. 
 Distress Act, 1908, provisions of, 89. 
 entry, legal and illegal methods, 66. 
 execution, provisions as to, 57. 
 expiration of tenancy, after, 120. 
 form of declaration by owner, 107. 
 
 undertenant or lodger, 108. 
 goods privileged from, under Distress Act, 1908, 90. 
 
 (general list), 115. 
 spized are not in order and disposition of bankrupt, 58. 
 guarantee given to owner by tenant should be by separate 
 docuinent, 32. 
 
INDEX. 203 
 
 Distress fok I&^j^t— continued. 
 impounding, 122. 
 lien, landlord tas no, 121. 
 landlord cannot buy goods distrained, 127. 
 landlord's rigtt may be suspended, postponed, or lost, 117. 
 lodger's door must not be broken open, 122. 
 marshalling assets, 118. 
 m.isoellaneous notes, 118. 
 overplus, 126. 
 owner may sue hirer for \ alue, if goods sold, 49. 
 
 redeem goods and sue hirer for amount paid, 49. 
 patented article sold under, 127. 
 poundbreach, 124. 
 premises, goods must be upon, 121. 
 removal of goods to avoid, 122. 
 rent payable in advance, 119. 
 rentcharge, 91. 
 rescue, 124. 
 restoration order. 111. 
 sale under, 127. 
 second distress, 1 26. 
 
 service of declaration by owner, &c., 109. 
 street, goods in, 121. 
 Sunday, distress on, not legal, 1 19. 
 
 tenancy (not licence) must exist to give right of distress, 118. 
 tender of rent, 110, 120. 
 tools of trade, 112. 
 " walking possession," 123, 125. 
 when may be levied, 119, 120, 
 
 Distress for Taxes, 
 costs of, 129. 
 hired goods, when exempt, 128. 
 
 Documents, 
 proof of, 25. 
 
 Eleoteic Lighting Apparatus, 
 protected from bankruptcy, 58. 
 distress, 116. 
 execution, 56. 
 supply bv local authority, 116. 
 
 Endorsement, 
 
 of service by deceased person, 78. 
 
204 INDEX. 
 
 Excessive Distress, 
 action for, 166. 
 no right of action against purchaser, 167. 
 
 Execution, 
 
 effect of sale under, 55. 
 
 electric lighting apparatus exempt, 56. 
 
 fixtures exempt, 56. 
 
 form of notice by owner to sherifl and high bailiff, 54. 
 
 high bailiff and sherifl not generally liable for conversion, 55, 
 
 56. 
 National Insurance Act, 1911... 57. 
 
 owner may recover proceeds and damages, in certain cases, 56. 
 owner should give notice to sheriff or high bailiff, 53. 
 pawnbroker's interest in goods pledged may be seized, 57. 
 recovery of money paid under protest, 53. 
 tools of trade, &c. exempt, 56. 
 
 Exemplary Damages, 
 notes as to, 147. 
 
 Eactoes Act, 
 
 rights conferred upon third parties by, 6, 146. 
 
 False Pretences, 
 
 when hirer's premises mortgaged, 140. 
 
 Eire, 
 
 position of hirer in case of, 48. 
 
 Eitness oe Goods, 
 
 warranty on sale or hire, 21. 
 
 ElXTURES, 
 
 as between landlord of hirer's premises and owner of hired 
 
 chattels, 130. 
 as between mortgagee, or debenture-holders, of hirer's pre- 
 mises and owner of hired chattels,' 133. 
 exempt from execution, 56. 
 privileged from distress, 117. 
 
 EoRciBLE Entry and Seizure. (See Licence to Enter and 
 Seize. 
 
INDEX. 205 
 
 FoKMS, 
 
 agreement between landlord and owner waiving right to dis- 
 train, 117. 
 
 authority by a company to a person to make declaration under 
 Distress Act, 1908. ..105. 
 
 declarations by owner, lodger, and undertenant under Distress- 
 Act, 1908. ..107, 108. 
 
 memorandum of service to be endorsed on notice, 77. 
 
 notice determining hiring and demanding goods, 76. 
 And see Court Poems and Precedents. 
 
 Furniture Eemovers, 
 
 liability the same as that of common carriers, 47. 
 
 Guarantee por Hirer, 
 
 consideration must exist, 32. 
 
 if given by tenant of premises, should be by separate docu- 
 ment, 32. 
 infant, guarantee for, 36. 
 must be in writing, 32. 
 precedents, 177, 179. 
 stamp on, 28. 
 void, if hii'e-purchase agreement a security, 34. 
 
 High Bailiff, 
 
 form of notice to, of claim to goods taken in execution, 54. 
 not generally liable for conversion, 55. 
 And see Execution. 
 
 HiRE-PuRCHASE AGREEMENT, 
 
 assignment by owner of contractual rights, but not of the- 
 
 goods, is not a bill of sale, 80. 
 cannot be registered as a security, 2. 
 
 chargp by owner on goods, comprised in, is a bill of sale, 80. 
 construction of the word "month " in, 44. 
 Court will inquire into facts to ascertain if bond fide, 3. 
 definition of, 1, 2. 
 
 determined by hirer selling or parting with goods, 144, 145. 
 distinguished from simple hiring agreement, '1. 
 Distress Act, 1908, provisions of, 90, 92. 
 Factors Act, provisions of, 5, 6. 
 
206 INDEX. 
 
 HiRE-PtJECHASE Agkeembnt— comimued. 
 
 if a security, is a bill of sale, and void as against the Mrer, Ms 
 
 creditors and surety, 5, 34. 
 if following, but distinct transaction from hona fide sale, 
 
 valid, 3. 
 instances of fictitious, 2. 
 mortgage of owner's rigbts under, 80. 
 not a bill of sale, 2. 
 
 of fixtures on mortgaged premises, 133. 
 option of purchase, under discount, 171. 
 order and disposition of tenant in case of distress, 98. 
 pledge by hirer of goods included in, 10. 
 precedents, 170, 177, 179. 
 refusal of hirer to sign, 26. 
 sale by hirer of goods included in, 9. 
 Sale of Goods Act, provisions of, 5, 6. 
 should be in writing, 24. 
 stamp on, 27. 
 
 tenant of premises, with, 90, 92. 
 true nature of transaction inquired into, 3. 
 verbal agreement can give power to hirer to confer title on 
 
 third party, 24. , 
 when not hand fide, 2. 
 wife of tenant of premises, with, 92, 99. 
 
 HiREB, 
 
 agreement, if a security, is void against, 2. 
 
 can give good title to purchaser, or pledgee, if agreement 
 
 contract for purchase, 5, 146. 
 can maintain action against wrongdoer, on behalf of himself 
 
 and owner, 46, 164. 
 Distress Act, 1908, provisions of, 90, 92. 
 duties and liabilities of, 47. 
 larceny by, as bailee, 10, 14. 
 liable for acts of servant, 48. 
 
 loss under special agreement, 48. 
 may recover damages, against owner for breach of warranty, 
 
 22. 
 negligence of, 47. 
 
 not liable for accidental fire, except under special contract, 48. 
 nor in casg of impossibility to return goods, 48. 
 nor in case of robbery, 48. 
 pledge by, 10. 
 position of, as to money paid, if owner seizfe, 72. 
 
INDEX. 207 
 
 Hirer — continued. 
 
 prosecution of, 78. 
 
 refusal to sign agreement, 26. 
 
 representation as to credit of, 20. 
 
 rights of, on transfer of title by owner, 82. 
 
 sale by, 9. 
 
 Hire-Trader's Business, 
 sale of, 83. 
 
 Hiring Agreement 
 
 distinguisliecl from hire-purchase agreem.ent, 1. 
 
 Distress Act, 1908, effect of, 92, 101. 
 
 goods included in, privileged from distress, unless in order or 
 
 disposition of tenant, 101. 
 precedent. See Appendix, Part I. 
 refusal of hirer to sign, 26. 
 stamp on, 28. 
 
 Horses, 
 
 Sale of Goods Act does not affect law of, 16. 
 
 sale in market overt does not pass property in stolen, 17. 
 
 special law as to, 17. 
 
 Husband, 
 
 substitution of husband and wife, as tenants, 96. 
 
 Illegal Distress, 
 action for, 1 63. 
 
 against whom action may be brought, 164. 
 by whom action may be brought, 163. 
 damages, 164. 
 
 distinguished from irregular distress, 165. 
 Distress Act, 1908, provisions of. 111, 164. 
 double value, 166. 
 injunction, 112. 
 
 landlord not always Kable, 109, 164. 
 liability of landlord's agent. 111, 164. 
 National Insurance Act, 1911... 119. 
 plaintiff must be entitled to immediate possession, 163. 
 recovery from purchaser, of goods sold under, 127. 
 summary remedy in metropolis and before other magistrates, 
 112, 113. 
 And see Distress por Eent ; Court Forms. 
 
208 INDEX. 
 
 Impounding, 
 
 goods distrained for rent, 122. 
 poTindbreacli, 124. 
 "walking possession," 123. 
 
 Infant, 
 
 contracts and torts of, 34. 
 
 definition of "necessaries," 34. 
 
 fraud by, 35. 
 
 Infants' Relief Act, 1874... 34. 
 
 larceny by, 36. 
 
 liable for conversion and detinue, 35. 
 
 not liable for tort arising out of contract, 35. 
 
 surety for, 36. 
 
 trade goods are not " necessaries," 35. 
 
 Injunction, 
 
 against distress, 112. 
 
 Innkeeper, 
 Hen of, 51. 
 
 Inspection op Goods, 
 order for, 149, 155. 
 
 Instalments, 
 
 position of hirer, in respect of, after seizure, 72.. 
 
 Interest, 
 
 when recoverable, 39, 161. 
 
 Interpleader, 
 by bailee, 53. 
 by sheriff and high bailiff, 55. 
 
 Irregular Distress," 
 action for, 165. 
 
 distinguished from illegal distress, 165. 
 no right of action against purchaser, 166. 
 special damage only recoverable, 166. 
 tender of amends, 166. 
 
 Judgment, 
 
 enforcing by attachment, 153, 157. 
 
 in detinue, 150, 155. 
 
 satisfied and unsatisfied, effect of, 74 
 
INDEX. 209 
 
 Landlord, 
 
 agreement by, -waiving right to distrain, 117. 
 cannot purchase goods distrained, 127. 
 • claim to fixtures, 130. 
 Distress Act, 1908, provisions of, 89. 
 duress of goods, 49. 
 has no lien apart from distress, 121. 
 liable for irregular, but not always for illegal acts of bailiff, 
 
 109, 164, 166. 
 right to distrain may be postponed, &o., 117. 
 substituting husband and wife as tenants, in place of husband, 
 
 96. 
 
 And see DisTEESS for Eent. 
 
 Larceny, 
 
 hirer guilty of, as bailee, 10, 14. 
 infant may be guilty of, as bailee, 36. 
 
 IjAW of Distress Amendment Act, 1908, 
 
 detailed consideration of the provisions of, 89. 
 
 Licence to Enter and Seize, 
 
 breach of peace must not be committed, 68. 
 
 breaking out after entry, 62. 
 
 effect on, of assignment of owner's reversionary interest or 
 
 contractual rights, 82. 
 forcible entry, licence given by hire-purchase agreement legal, 
 
 62. 
 implied licence to enter and take stolen goods by force, 64, 177. 
 licence is irrevocable, 60. 
 lodger, house in which he resides may be entered under 
 
 licence, 59. 
 methods of entry which are legal and illegal, 65. 
 not affected by sect. 68 of the National Insurance Act, 191 1 ... 59. 
 power to seize, after obtaining judgment for balance due under 
 
 agreement, 73. 
 third party, entry on land of, 75. 
 trespass ab initio, owner not liable for, 69. 
 unnecessary force not to be used, 68. 
 what acts do, or do not, amount to forcible entries, 65. 
 
 Lien, 
 
 boarding-house keeper has no, 52. 
 
 can only be acquired through owner, or person authorised to 
 create it, 50. 
 
 14 
 
210 INDEX, 
 
 Lien — continued. 
 carrier's, 30. 
 duress of goods, 49. 
 extinguislied by tender, 52. 
 for repairs, 50. 
 innkeeper's, 51. 
 landlord lias no, 121. 
 
 payment into Court, in answer to defence of, 53. 
 person claiming lien cannot charge expenses of keeping goods, 
 
 52. 
 -wrongfully created by hirer, owner may recover amount paid, 
 
 50. 
 
 Limited Liability Company. ^ See Company. 
 
 Lodger, 
 
 declaration by, 108. ^ 
 
 definition of, 91. 
 
 Distress Act, 1908, provisions of, 90. 
 
 door must not be broken open on a distress, 122. 
 
 bouse in which he resides may be entered under licence to 
 
 enter and seize, 59. 
 onus of proof on him, 92. 
 tender or payment of rent by, 110. 
 trespass, lodger cannot bring action for, unless in exclusive 
 
 possession, 60. 
 undertaking by, to pay rent to superior landlord, 109, 110. 
 
 Machinery, 
 
 agricultural, 93, 116. 
 
 distress, 117. 
 
 execution, 56. 
 
 fixtures, 130. 
 
 mortgage, by owner, of interest in machinery let out on hire 
 
 is a bill of sale, 80. 
 name plates, 58, 181. 
 railway rolling stock, 115. 
 
 And see MORTGAGE. 
 
 Market Overt. 
 definition of, 16. 
 
 effect of sale of hired goods in, 16, 17, 18. 
 order of restitution, 1 7. 
 
 sale in, does not pass property in stolen horses, 17. 
 And see Restitution of Goods. 
 
INDEX. 211 
 
 Married Woman, 
 
 husband cannot bring action of detinue against wife, 37. 
 
 husband liable for wife's torts, 36. 
 
 liable for detinue and conversion, except to husband, 36, 37. 
 
 Maxims, 
 
 III pur i (If/ictu, potiui- est conditio jiossideniis, 21. 
 Qiiii-iiaid ptantatur solo, solo cedit, 130. 
 
 Mercantile Agent, 
 definition of, 8. 
 
 Month, 
 
 meaning of, 44. 
 
 Mortgage, 
 
 claims by mortgagee, or debenture-holders, of hirer's pre- 
 mises against owner of hired chattels, 133. 
 
 different effects of legal and equitable, 138. 
 
 of owner's reversionary interest or contractual rights, 80. 
 
 suggestions for protection of owner of hired goods against 
 claims under, 140. 
 
 Name Plates, 
 effect of, 58. 
 provision as to, in agreement, 181. 
 
 Negligence,- 
 of hirer, 47. 
 
 onus of negativing is on hirer, 48. 
 
 owner of reversionary interest may sue third party for per- 
 manent injurj^ 49. 
 
 Negotiable Instrument, 
 
 effect of owner accepting, 41. 
 
 Notice to Produce, 
 
 not necessary to prove written demand, 78. 
 
 Notices, 
 
 practice as to service of, 77. 
 
 Order and Disposition of Bankrupt or Tenant, 
 consent of true owner, 57, 98. 
 construction of clause, 57, 98. 
 custom excludes, 100. 
 definition of "trade or business," 57. 
 14(2) 
 
212 INDEX. 
 
 Order ahd Disposition or Bankrupt or Tenant — continued. 
 
 determination of consent, 99. 
 
 fraudulent contract may be disaffirmed, after receiving order, 
 59. 
 
 goods in the hands of gratuitous bailee, not subject to clause, 
 102. 
 
 goods must be in sole possession, 98. 
 
 sent on approbation to prospective hirer, 99. 
 
 hotel furniture, cases and rules as to, 103. 
 
 household furniture, cases and rules as to, 103. 
 
 onus of proving consent, 99. 
 
 existence of custom, 101. 
 
 pianofortes, cases and rules as to, 102. 
 
 presumption may be rebutted, 100. 
 
 question is one of fact, 98. 
 
 true owner entitled to prove for loss of goods seized in bank- 
 ruptcy, 58. 
 
 what is determination of consent, 99. 
 
 Order of Restitution. See Restitution of Goods. 
 
 Oyebplus, 
 
 disposal of, after distress for rent, 126. 
 
 Owner, 
 
 action by, against sheriff or high baiHff, generally barred, 55. 
 assignment or mortgage by, of reversionary interest or 
 
 contractual rights, 80. 
 cannot recover goods from person protected by statute, 5, 146. 
 Distress Act, 1908, provisions of, 90. 
 duty to disclose defects, 23. 
 
 entitled to retain money received if goods seized for default, 72. 
 estoppel of, 9. 
 
 guarantee as to fitness of goods, 21. 
 liable for acts of servant, 69. 
 may recover from hirer amount paid to release goods from 
 
 distress or hen, 50. 
 may recover goods and damages against person not protected 
 
 by statute, 146. 
 may sue for duress of goods, 49. 
 may sue hirer, after seizure, for arrears, unless hire-purchase 
 
 agreement amounts to a contract to buy, 73. 
 position of, when hirer refuses to sign agreement, 26. 
 rights of hirer on transfer of title by, 82. 
 waives right to seize, by accepting paj-ment of arrears, 42, 43. 
 
INDEX. 213 
 
 Patented Article 
 
 sold under distress, 127. 
 
 Pawnbroker, 
 
 conversion by, 12. 
 
 does not obtain statutory title under Pawnbrokers Act, 12. 
 
 his interest in goods pledged may be taken in execution, 57. 
 
 order of restitution, 19. 
 
 pledge by hirer, 10. 
 
 right of owner to recover goods from, 12. 
 
 Payment, 
 
 by post, 40. 
 
 cheque sent " in settlement," accepted " on account," 40. 
 
 Person, 
 
 interpretation of the word, 20, 30. 
 
 Pistols, 
 
 statute law and decisions, 23. 
 
 Pledge 
 
 by hirer, 10. 
 
 determines hiring, 145. 
 
 Pledgee 
 
 can obtain good title from hirer, if agreement is a contract to 
 purchase, 5. 
 
 Post, 
 
 pa3rment by, 40. 
 
 Poundbreach, 
 
 detailed consideration of the law of, 122. 
 
 Precedents. See Contents of Appendix. 
 
 Privilege from Distress. See Distress for Bates, Bent and 
 Taxes. 
 
 Promissory Note, 
 
 effect of owner accepting, 41. 
 
 Proof 
 
 of documents, 25. 
 
 Prosecution 
 of hirer, 78. 
 
il4 INDEX. 
 
 Pbovinciai; Justices 
 
 jurisdiction in detinue, 19. 
 
 PURCHASEB 
 
 at sale under excessive distress, 166. 
 
 illegal distress, 127. 
 
 irregular distress, 166. 
 
 illegal execution, 55, 56. 
 can obtain good title ft'om hirer, if agi'eement is a contract to 
 purchase, 5. 
 
 Bates. See Distbess fob Rates. 
 
 Re-Capttjbe of Goods 
 
 after pound-breach, 125. 
 by owner, 71. 
 
 Eeceiveb, 
 
 appointment of, to prevent distress before judgment, 112. 
 of stolen goods, 10. 
 
 Removal op Goods 
 
 to avoid distress, 122. 
 
 Rent 
 
 payable in advance under hiring agreement, 38. 
 
 tenancy agreement, 119. 
 And see Distebss pob Rent. 
 
 Rentchabge, 
 
 distress for, 91. 
 
 Repaibs, 
 
 lien for, 50. . 
 
 Re-Possession. See Licence to Enter and Seize. 
 
 Reputed Ownebship 
 
 Distress Act, 1908, provisions of, 98. 
 under Bankruptcy Act, 57. 
 And see Oedbe AND DISPOSITION OF Bankrupt ob Tenant. 
 
 Rescue 
 
 after distress, 124. 
 
 Restitution of Goods, 
 
 Courts having power to make order of restitution, 17. 
 Criminal Appeal Act, provisions of, 18. 
 
INDEX. 215 
 
 Eestittjtion op Goods— conUnuerl. 
 
 effect of Factors Act and Sale of Groods Act upon Larceny 
 
 Act, 18. 
 Larceny Act, provisions of, 17. 
 metropolitan magistrates' jurisdictiou, 19. 
 no appeal against refusal of order, 19. 
 orders of restitution, 17. 
 Pawnbrokers Act, provisions of, 1 9. 
 Probation of Offenders Act, provisions of, 18. 
 property in stolen goods revests if Mre-purcliase agreement 
 
 does not amount to agreement to buy, but not if it does, 18. 
 provincial justices' jurisdiction, 19. 
 Sale of Goods Act, provisions of, 18. 
 Summary Jurisdiction Act, provisions of, 18. 
 true owner niaj' bring civil action without, or notwithstanding, 
 
 order, 20. 
 
 Eestobation Oeder 
 
 under Distress Act, 190,S 111. 
 
 Eeveesionary Interest 
 
 of owner, assignment or mortgage of, 80. 
 
 EOBBERY, 
 
 position of hirer, in case of, 4cS. 
 
 Sale 
 
 by auctioneer, 14. 
 
 hirer, 9. 
 course to be adopted on sale of hire-trader's business, 83. 
 hire-purchase agreement following, 3. 
 landlord cannot purchase goods distrained, 127. 
 market overt, 16. 
 title of purchaser from hirer, 5. 
 
 Sale of Goods Act, 
 
 exception as to sale of horses, 16. 
 rights conferred upon third parties by, 5. 
 
 Security, 
 
 hire-purchase agreement given as, is a bill of sale, 2. 
 mortgage of owner's reversionary interest is a bill of sale, 80. 
 
 Seizure. See Licence to Enter and Seize. 
 
216 INDEX. 
 
 Sebvant, 
 
 conversion by, 160. 
 
 hirer and owner liable for' acts of, 48, 69. 
 
 may be servant of two persons at same time, 70. 
 
 delegate duty in case of absolute necessity, 70. 
 
 Service 
 
 of notices, practice as to, 77. 
 
 Sheriit, 
 
 form of notice to, of owner's claim, 54. 
 not generally liable for conversion, 56. 
 And see EXECUTION. 
 
 Special Damage, 
 notes as to, 147. 
 
 Specific Delivery, 
 
 execution for, 150, 157. 
 
 Stamp, 
 
 eflect of omission, &c., 29. 
 
 no appeal from judge's ruling as to, 29. 
 
 on agreement with, landlord waiving right of distress, 118. 
 
 declaration under Distress Act, 1908... 109. 
 
 guarantee, 28. 
 
 hire-purchase agreement, 27. 
 
 simple hiring agreement, 28. 
 
 statutory declaration by intending hirer, 184. 
 
 Status, 
 
 representation, as to proposed hirer's, to be in writing, 20. 
 
 Statute op Frauds, 
 
 agreement when within, 24. 
 
 Statutory Declaration 
 
 by proposed hirer, 140, 184. 
 
 not required under Distress Act, 1908... 104. 
 
 precedent, 184. 
 
 Stolen Goods, 
 
 market overt, 16. 
 orders of restitution, 17. 
 
 prosecution of felon before bringing civil action, 78. 
 And see Restitution of Goods. 
 
INDEX. 217 
 
 Substitution 
 
 of hvisband and wife as tenants, in place of husband, 96. 
 
 Sunday, 
 
 distress not to be levied on, 119. 
 rent may be made payable on, 119. 
 
 Surety, 
 
 epitome of the law of Principal and Surety, 32. 
 
 for infant, 36. 
 
 hire-purchase agreement, if a security, void against, 34. 
 
 if surety a tenant, guarantee should be \>y separate document, 
 
 32. 
 Statutes of Limitation, 34. 
 And see Contents of Appendix. 
 
 Surrender 
 
 of tenancy, by operation of law, 97. 
 
 Taxes. See Distress for Taxes. 
 
 Tenants, 
 
 husband and wife, in place of husband, 96. 
 
 Tender, 
 
 by lodger or under-tenant, 110. 
 Distress Act, 1908, provisions of, 110. 
 exting^shes lien, 52. 
 
 Time, 
 
 meaning of " duly paid," 38. 
 " month," 44. 
 " punctually," 38. 
 
 Tools oe Trade, 
 
 exempt from execution, partiall3-, 56. 
 privileged from distress, partiallj', 112. 
 
 Transfer 
 
 of owner's title to goods, 80. 
 
 Trespass 
 
 to goods, 69, 167. 
 land, 60, 75. 
 
 Trover. -See Contersion of Goods. 
 
 R. 
 
 15 
 
218 INDEX. 
 
 Under-tenant, 
 
 form of declaration by, 108. 
 position of, under Distress Act, 1908... 90, 91. 
 tender or payment of rent, 110. 
 undertaking of, 109. 
 
 IJNSATisriED Judgment, 
 
 seizing goods after judgment, 73. 
 
 Waiver 
 
 of right to seize, 43. 
 
 Walking Possession 
 
 on distress for rent, 123. 
 
 Warranty, 
 
 as to quality or fitness of goods, 21. 
 remedy for breacli of, 22. 
 
 Witness, 
 
 when attesting witness need not be called, 25. 
 
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