Cornell University Law Library The Moak Collection PURCHASED FOR I The School of Law of Cornell University And Presented February 14, 1S93 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 1650.L99 1877 The law of bills of sale :wlth an append 3 1924 022 472 033 Cornell University Library The original of tliis 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/cu31924022472033 THE LAW OF BILLS OP SALE. t wm BILLS OF SALE, WITH AN APPENDIX OF Precetients anU statutes. SECOND EDITION. ET GEORGE EDWAED LYON AND ' JOSEPH HAWORTH REDMAN, OP THE MIDDLE TEMPLE, ESaUIRES, BAKRISTEBS-AT-LAW, Joint Authors of " A Concise View of the Law of Landlord, and, Tenant" ^c. LONDON: REEVES & TURNER, 100 CHANCERY LANE, EVISON & BRIDGE, 22 CHANCERY LANE. 1877. LONDON : PRINTED BY EVISON AND BRIDOE, 22 CHANCERY LANE, 'W.C. PEEFACE TO THE SECOND EDITION. Although but a comparatively short period lias elapsed since the publication of the first edition of this work, the numerous decisions in the various courts have consideSfSbLy elucida^d and, to some extent modified, the law applicable to bills of sale. To incorporate these decisions, and to make the work more extensively useful, several of the chapters have been almost wholly re-written, and a new chapter (Chapter III.) has been added. In its present form, it is hoped that this little work will be more worthy of the favourable reception accorded to the former edition. March, 1877. PEEFACE TO THE FIRST EDITION. The aim and scope of tliis work will sufficiently appear from the title. It is not designed to enter into rivalry with the larger works on the same subject, which are already on the shelves of the profession, but to furnish a concise and readable statement of the law affecting a form of security of daily increasing popularity and importance. Although no pretension is made to citing all the reported cases, the author believes that every impor- tant doctrine and principle affecting bills of sale will be found stated and supported by authority. G. E. L. 5 Essex Court, Temple, April, 1873. CONTENTS. PAGE TABLE OF CASES vii ADDENDA xv CHAPTER I. JVhat is a bill of sale within the Bills of Sale Acts, , 1 CHAPTER II. JVhat are personal chattels within the Bills of Sale Acts 8 CHAPTER III. Rights of a grantee of a Mil of sale as against the landlord of the grantor . . . . . . . . 21 CHAPTER IV. Tinder what circumstances a hill of sale will he void against creditors under the statute 13 Eliz., c. 5 24 CHAPTER V. Under what circumstances chattels comprised in a hill of sale will he saleable by the trustee in bankruptcy of the grantor, as being in his order and disposition at the time of bankruptcy . . . . , . 41 A ' VI CONTENTS. PAGE CHAPTER VI. Under what circumstances a hill of sale of chattels is an act of bankruptcy . . . . . . . . 94 CHAPTER VII. On the registration of bills of sale . . . . . . 127 CHAPTER VIII. On the preparation of hills of sale .. .. ..158 APPENDIX. Stat. 17 & 18 Vict., c. 36 (BiUs of Sale Act, 1854) 168 29 & 30 Vict., c. 96 (BiUs of Sale Act, 1866) 172 Precedents of bills of sale . . . . . . 175 Affidavit of execution of a bill of sale . . 189 Affidavit on renewing registration of a bill of sale 1 90 Affidavit of second re-registration of a biU of sale 190 Consent to order to enter satisfaction . . . . 1 90 INDEX 193 TABLE OF CASES. Adams v. Grraham . . 1). Malkin Albert v. Grosvenor Invest- ment Co. . . 159 Alderson v. Temple 86, 91 Alexander, ex parte. . 14 Add. Allen., ex parte .. 142 V. Bonnett . . 39, 110 V. Thompson 145, 147 Allsop V. Day . . 4 Alton V. Harrison . . 39 Ancona v. Rogers . . 131 Aihoynii, ex parte .. 57 v. Williams. . 77 AiDoldi, ex parte .. 80,81,82 ArundeU v. Phipps . . 38 Ash, re 110, 111, 112, 119, 140 Ashfo'rd v. Tuite . . 6 Ashton V. Blackshaw 7, 63, 67 Atkinson, ex parte , . 44 Attenborough W.Thompson 145 Attwater, ex parte 85 Add., 131 B. Bach V. Meats Badger v. Shaw Bagshaw, ex parte . . Baker v. Eichardson Balme v. Hntton . . Bampfield, re Banhmy ». White . . 136, 152 ^axclnY, ex parte .. 14,15,54 Barker v. Aston . . 167 Barrand, re . . 141 Barrow v. Bell . . 71 22 143 46 162 120 4 PAQE PAGE 147 "Bajij, ex parte ,. 55 47, 48 Bartholomew v. Sherwood 60 Bartram v. Payne . , 65 Bath, ex parte . . 48 V. Sutton . . 149 Baxter v. Pritchard 106,113 Bayspoole v. Collins 32 Beghie v. Fenwiok . . 13 Beales v. Tennant . , 147, 149 Belding v. Eead . . 19, 159 BeU V. Hutton . . 121 , V. Young . . 46 Bellamy v. Saull . . 164 Beni,re 91,119,161,162 Benton v. ThomhiU 39 'Bevaji, ex parte .. 87 Biddulph V. Goold . . 38, 120 Bignold V. Waterhouse 84 BUls V. Smith . . 88 Birch, ex parte . . 46 Bird V. Bass . . 83 Bittlestone v. Cook. . 109, 115 B\a,cVbwni, ex parte 90,91 BlackweU v. England 145 Blake v. Izard . . 6 'BlsiiiA., ex parte .. 125 'Boden, ex parte .. 61 Body, re . . 61 BoUand, ex parte 57, 89, 106 Botoherhy v. Lancaster 98 Bott V. Smith . . 33 Bowers, ex parte . . 47, 49 Bowes 1). Poster . . 27 Add. Boyd V. Shorrock . .' 13, 16 Brantom i>. G-riffits. . 6, 8 Add. a2 vm TABLE OF CASES. Brett V. Beokwith. Bre'win v. Briscoe V. Short Brierly v. Kendall BriggB V. Boss BrigEty V. Norton. Brignall v. Cohen Brittain v. Brown Broadbent, re Brodrick v. Scale Bromley v. King Bro-wn, re V. Bateman Brundrett, ex parte Bryant, ex parte Buchan, re Buck, ex parte Buckley ». Taylor Burbridge, ex parte Burghardt, re Butcher, ex parte V. Easto 1). Stead , Butt, ex parte Butterworth, re Byerley v. Prevost 0. FAQE 73 83 80,81 31 146, 148 159 135 83 139 147, 151, 153 61 90 6 44 50,52 76 61 Add. 21 55 101, 169 87 98 87 112 Add. 64. 4 Cadogan v. Kennett 35 Oaldecott, ex pwrte . . 112 Campbell v. Presoott 160 Cannan v. Denew . . 50 Carlisle, re 135 Carr v. Acraman . . 19 V. Allatt 18 V. Burdiss 106 Carruthers v. Payne 65 Carter ». Dean 46 Caughey, re 74 Chapman «. Lampshire 46 Chase v. Goble 103 Cheeeebrough, re '. . 90,91 Cherry, re . 89 Chester, ex parte 106 ChideU v. Galsworthy 18 Chidley v. West Ham 9 Oleland, re . . • 47,49 PAGE Climie ». "Wood .. 11 Coates, ex parte . . 86 Cochrane, ex parte .. 141, 160 Cohen, ex parte . . 110, 136 Coldwell V. Gregory 72 Cole V. Kemot . . ,18, 19 Colemere, »•« .. i09, 116 CoBina, ex parte .. 130,142 4). Forbes . . 62 Compton V. Bedford 121 Congreve ». Evetts.. 16,-18 Conning, ex parte . . 5 Conway ». Nail . . 81 Cook, re 111, 119, 140 V. Oaldecott . . 107 V. Pritchard . . 90 V. Eogers . . 89 ■». Walker . . 31 Cooke V. Hemming . , 55 Cooper, ex parte . . 93 Coote V. Jeoks . . 7 Copeman v. Gallant 61, 73 Copis 1!. Middleton . . 33 Corbett v. Eowe . . 145 Cornish V. Clark . . 32 Cort V. Sagar . . 12, 163 Cotton, ex parte .. 12 Couston, re 43, 62, 63, 66, 76 Cowell, ex parte . . 12 Cox, ex parte . . 88 Crabb, ex parte . . 44 Craven, re ... 87, 89, 90 Crawford, re . . 87, 91 Crisp V. Pratt . . 49 Crispin, ex parte . . 126 Cromwell, ex parte . . 50 Crosbie v. Murphy . . 148 Crosby i). Crouch . . 89 Crossley v. Elworthy 32 Cull wick V Swindell 12 Cuthbertson, re ,. 71 D. Daglish, ex parte Daniel, ex parte Darby v. Harris Darvill V. Terry .. 6,11,14 46 21 39, 142, 144 TABLE OF CASES. IX Daubeny, ex parte , . Davies v. Aston «. Jones Davison v. Eobinson Dawes, ex parte Debenham v. Digby Defifell V. Miles V. White Defries, ex parte Bering, ex parte Dewey v. Bayntun . . Doe V. Ball — — V. Eoberts Donnan, ex parte . . Doughty, re Douglas, re Dryden v. Hope Dufaur, ex parte Duncan v. Cashin . . Dungate, re Dutton iJ.fyioiTison. . Dyer v. Green ■ ^• Earl of Limerick, re Edey, ex parte Edwards, ex parte . . 71 PAGE 44,50 22 133 87 83 160 164 151 100, 101 46 33,34 26,38 26,27 72,81 147 83 147 48 7 105 98 163 — V. Cooper. . — V. Edwards 5, — V. Glyn . . — f. Harben EUiott V. Efeeman EUis, ex parte Elwes V. Mawe Emanuel v. Bridger Emerson, ex parte . . Enderby, ex parte . , England v. Downs . . Eslick, re 14, 74, Evans v. Hallam ^jles, ex parte F. Eairbrotber, re . . 53 Eastnedge, re .. 54 Fawcett v. Eeame . . 84 Eawcus, re . '. 61 Add. 147 71 45 76 84 134, 140 91 29 154 66,99,126 9 133 4, 64, 66 72 161 76 Add. 83 76 PAGK Fenn ti. Bittleston . . 68 Fisher, ex parte 110, 111, 112, 119, 140 V. Dixon . . 11 Fletcher v. Manning 71, 78' Flory V. Denny . . 2 FYyil, ex parte ., 73 Foord, eK^arte .. 98 Ford, ex parte , . 74 Fobs, ex parte .. 71,78 Foulger V. Taylor . . 148 Fowler, re . . 45 V. Foster . . 7 Fox, re ., 65 ». Fisher . . 66 "Po^ej, ex parte .. 102 Eraser v. Swansea Canal Co. 74 V. Levy . . 108 Freeman ». Pope . . 33 French v. French . . 33 Preshney v. Wells . . 61 Furber v. Finlayson 131 G. Gale V. Bumell . . 15 ■». Halfbnight . . 61 V. WOliamson 39 Gallimore, ex parte . . 49 Gardnor v. Shaw . . 153 Garland, ex parte . . 49 Gaw&n, ex parte ,, 14 Gem, ex parte , . 46 GeneralFumishingCo.D.Veim 6 Gibbs, ex parte . . 50 Gibson v. Boutts . . 93 V. Bray . . 77 V. King . . 46 Goater, ex parte . . 28 Golden, re .. 88 Goodricke v. Taylor 125 Gorton v. Falkner . . 21 Gough 11. Everard , . 132 Graham v. Furber . . 26, 36, 80 V. Wiloookson 4 Add. Grainger, ex parte . . 55 Grant v. Shaw . . 148 Gray i>. Jones . . 148 TABLE OF CASES. PAGE Great E. Ey. Co. v. Turner 66 Green v. Attenborough 163 V. Bradfield.. 93 V. Steer . . 84, 85 Greenbirt v. Smee 16, 19 Add. Greening v. Clark . . 51 Greenwood, ex parte 62, 65 Grindell v. Brendon 155 Gugen V. Sampson . . 7, 148 H. Hale ». AUnutt . . 122 V. Saloon OmnitusCo. 4, 35 HaUiday, ex parte . . 90 HaU, ex parte . . 44 HaUifax, ea: parie .. 81 Hamilton v. Bell . . 59, 60, 65, 69, 72, 77 'Eammo-DA, ex parte 47 Hams, re . . 146 Hankey v. Jones . . 44, 50, 51 HanMn,' ex parte . . 76 Raiding, ex parte .. 63,143 Hare, ex parte . . 72 V. Horton . . 13 Harris, ex parte . . 75, 85, 137 V. Eiokett' . . 91, 119 Harrison v. Blackburn 160, 161 Haselinton v. GUI . . 7 Hatton V. EngUsh . . 160 Hawker, ex parte ■ . 48,102 Hawkins, re • • ^i 64, 66 Hawtrey v. Butlin . . 13 Heanny v. Birch. . . 50 Henderson, re . . 133 Hervey v. Liddiard . . 67 Hewer v. Cox . . 145, 146 Hill, re .. 63 Hitohraan ». "Walton 11 Hogan V. Jackson . . 160 Holdemess v. Rankin 67 Holland v. Hodgson 9, 11, 12 HoIIingswortli«'.WHtel38, 164 Holmes v. Penney . . 26 Holroyd v. Gwynne 60 . V. MarshaU.. 15, 16, 19 PAGE Homan,eii;^art« 53,134, 139; 147 Hooper v. Permenter V. Smitli Hopcraft, Hope V. Hayley V. Meek Horn V. Baker Homsby v. Miller Howard v. Jemmett Hue V. French Hunter v. Turner Husband, re Hutchinson v. Gascoigne Hutton V. Cruttwell I. Irons V. Smallpieoe . . 2 Izaxdi, ex parte 111,119,140 151 120 5 16,18 83 54 57,75 66 26 138, 141 83 48 116 Jackson, re 55,73 ., jj^j. 57 James, re 85 v VibhiH 122, 124 Jardine, ex parte 162 Jarman v. Woolloton 161 Jay, ex parte 131 , 132, 134 Jeavons, re 119, 139 Jennings, ex parte . , 72 Jezeph 1). Ingram . . 37 Johnson v. Fesenmeyer 99 Jones, re 5, 64, 66, 70 Add., 47 'V. Boulter 36 V. Harber 92, 100 V. Harris 145, 161 Joy V. CampbeE 42,72 K. Keely, re 102 Keen v. Priest 22 Kemp, ex parte 64 Kendall v. KendaU . . 160 Kent V. Riley 32 Kevan, ex parte 87,91 Kidd V. EawUnson . . 34 TABLE OF CASES. XI PAGE King, ex parte .. lOS Add., 111,119,140 V. Simmonds , , 46 Kimey v. Smith . . 46 Kitchen ». Ihhetson 65 Knowles v. HorsfaU 60 Krehls. Great Central Gas Co. 80 Lady Arundell v. Phipps 38 Lake, re . . 71, 72 81 Lamb v. Bruce 145, 148, 152, 154 Larohin v. North Western Deposit Bank . . 148 Latimer v. Batson . . 37 Lavender, ex parte . . 49,50 Leake v. Young 100, 113 Lee V. Hart 107 Lees, re 85 ». Whiteley . . 98, 187 Leicester v. Eose 40 Leman, ex parte 141 Leonaxd «!. Baker .. 37 Lewis, ex parte 133 Liehert,.r« 90 Limerick, re Earl of 147 Lindon v. Sharp 30, 101 Tiingard v. Messiter 69,70 Lingham v. Biggs . . 66, 69, 70 Linton v. Bartlet . . 120 Livesay v. Hood 77 Load V. Green 72 Loader v. Hiscook . . 84 Lomax v. Buxton . . 110,118 London and County Bank, ex parte 90 London and Westminster Loan Co. v. Chase 149, 151 Longbottom v. Berry 11,12 Lett ». Melville 48 Lovering, ex parte 5, 64, 66, 70 Jjoyi, ex parte 12 Luckes, ex parte 95, 99, 108 Luckiu V. Hamlyn . . 148 Limn V. Thornton . . 15 Lyon V. Weldon 77 M. McCue V. James 146 Mace V. Oadell 61 Mackay, ex parte 5, 4( , 119, 139 V. Douglas . . 32 Mackenzie, ex parte 91, 119, 151,162 Magennis, ex parte . . 50 Majoribanks, ex parte 57 Manton v. Moore . . 120 Mapleback, re 112 Marine Mansions Co., re 136 Marks v. Feldman . . 91 Marples v. Hartley . . 133 M.&TO!Cole, ex parte .. 60,65 Marshall v. Broadhurst 49 Martindale v. Booth 28, 30, 34 Mason v. Wood 155 Massey v. Sladen . . 169 Mataidfe, re 84 Mather v. Fraser . . 11,13 Matthews, re 63, 64, 66, 67 Maughan v. Sharpe 2,160 Mead, re 160 Meldrum, re 87 Mercers. Peterson .. 107,110 118,139 Meux V. Jacob 14, 141 Meymot, ex pwrte . . 52 Middleton, re 142 Milford V. Hughes . . 45 MiUikin v. Brandon 52 Mogg 1). Baker 90 Montague, ex parte . . 2, 76, 80 M-oare, ex parte 56 Morgan v. Brundrett 92 Morton v. Woods . . 5 Morewood v. South York- shire Railway Co. 149 Moule, ex parte 50 Mullett 1!. Green . . 64, 66 Murgatroyd, re 125 Murray v. Mackenzie 151 Mutton, ex parte 134 Myers, re 100, 101 N. Neale v. Day 33 xu TABLE OF CASES. PAGE Needham v. Johnson 156 Neirmots, ex parte . . 46 Nevall, ex parte . , 46, 60 New Clydach Co., re 19 Newland v. Bell . . 49, 60 Newman v. Cardinal 4 Newton v. Chantler. . 99 Nicholson v. Cooper 141, 163 N. W. Bank, ex parte 7, 76 Norton, ex parte ,. 87 Nurse, re , . 102 Nntt, ex parte .. 49 O. O'Brien, re O'Connor, re Olliver v. King 2, 76, 80, 164 147 27 Parker v. Barker . . 61 PameU v. Dawson . . 30, 109 Paterson, ex parte . . 48, 49, 60 Patman v. Vaughan 49, 60 Pearson v. Graham . . 84 Penedo v. Johnson . , 6 Pennell v. Dawson . . 30, 109 -i/. Reynolds 89, 109 • v. Stephens . . 84 Phillips, eX parte 74, 7 5 Add. V. Burt . . 145 V. Earner . . 40 ». Gibbons , . 5 PhiUpotts V. Phillpotts 27 Phipps, ex parte . . 45 Pickard v. Bretts . . 160 V. Marriage 134, 153 Pike D. Stejihens . . 84 Ponsford v. Walton 98 Pott V. Turner . . 45 Powell, ex parte 63, 64, 66, 67 Price, ex parte .. 12 Priestley v. Pratt ; . 62 Prismall v, Lovegrove 43 Pryoe, re . . 55 Add. Pulbrook, ex parte 110, 112 Add. PulHng, re . . 75, 137 V. Tucker . . 120 Putman, ex parte ,. 91 E. Eamsbottom v. Lewis Eamsden v. Lupton Eawbone's Trust, re Bawlings v. Jennings Eawlinson v. Pearson Eay V. Eay Eeader, ex parte Eedfem, ex parte Eeed, ex parte ,re Eeeve v. Whitmore Eeg. V. Creese V. Hodgkiss V, Meakin «. Thomas Eevell V. Blake Eeynolds v. Bowley V. Hall Eichards, re - — ■ V. James PAaE 28 138, 139 74 161 45 66 90 80, 133 112 88 16 6 144 142 7 62 72 76 14 141 49 44 32^ 40 Eichardson, ex parte V. Bradshaw Eiches v. Evans 1). MeUer Eickardss. Attorney-General 26 -Eobinson, ex parte . . 81 V. BriggB. . 136 ■ — — V. Colllngwood 130 Eoe V. Bradshaw . . 160 V. Galliers . . 63 Eose V. Haycock . . 106, 113 EothweU V. Timbrell 83 iRouth V. Eoublot . . 153 Eufford V. Bishop . . 70 Eust V. Cooper . . 87, 108 EyaU V. EoUe 64, 67, 73, 160 S. Sacker v. Chidley . . 71 ^aje-cs, ex parte .. 61 Schulte, ex parte . , 84 Scott V. Surman . . 61 Shaftesbury v. Eussell 63 Shears v. Jacobs . . 151 V. Eogers . . 27 Sheen, ex parte . . 106 TABLE OF CASES. XIU Sheriff of Herefordshire, ex parte . . 51 Shower v. Pilck . . 2 Siebert v. Spooner . . 99, 101 Simmons v. Edwards 43 Simpsoin;. Hartopp 21 Slee, re .. .. 7, 75 Smale v. Burr . . 139 Smith I/. Baker . . 93 «). Cannan .. 103 V. Cheese 147, 148, 149 - V. Pilgrim -V. Scott - V. Timms - V. Topping WaU 132, 133, 134 V. "Watson . . 72 Snowhall, ez parte . . 83 Softley, re .. 91 Southam, ex parte . . 130 Spackman v. Miller 68, 75 Sparke, re . . 110, 136 Spicer, ex parte . . 54 Spirett 1). Willows . . 32 Staner, ex parte . . 61 Stanger v. WiUrins . . 123 Stansfield v. Cuhitt. . 52, 143 Stephens v. Sole . . 53 Stephenson, ex parte 23 Stevens, ex parte . . 45, 136 Stevenson v. Wood 91 Stewart, ex parte . . 45 V. Ball . . 49 Stilemau v. Ashdown 33 Stone V. Grubham . . 27 Stooke, ex parte . . 4 Stray, ex parte . . .98 Strong V. Strong . . 33 Stuart ». Sloper . . 45 Stubbs, re . . 47 Summersett v. Jarvis 49 Sutton V. Bath . . 161 Swainston v. Clay . . 67 T. Tapfield v. Hillman 19 Tarbaok v. Marbury 38 88,90 46 122 75 PAGE Tate, ex parte . , 87, 88 Taylor, ex parte , , 57 V. Bowers . . 27 Add. V. Coenen . . 32 V. Plumer . . 61 TemTpest, ex parte .. 87,89,90 Terry, re .. 65 Thaekthwaite v. Cock 60 Thomas, re . . 56 Thompson v. Freeman 91 V. Pettit . . 2 V. Webster 28 Thomson v. Barrett . . 4 Thome, ex parte . . 47 Add. ThrelfaU, ex parte 106 Add., 112 Toms V. Wilson . . 159 Toovey v. MHne . . 91 Topham, ex parte . . 90 Townley v. Crump . . 74 Trethowan, re . . 14 Add. Trevor, ex parte . . 101, 159 Trousdale v. Sheppard 149 Turner, re 85 Add., 131 V. Hardcastle 82 Tutori V. Sanoner . . 147 TweddeU, r« .. 112 Tyreeij, ex parte .. li Add. Twyne's Case 28, 30, 36, 37 U. Udal V. Walton . . 82 Union Bank of Manchester, ex parte .. 56,73 V. Vaoher v. Cocks . . 91 Valentine v. Vaughan 49 Vane, re 110, 112 Add. Vardon, ex parte . . 73 Vaux, ex parte . . 63, 65 Vidler, ex parte ,. 65 Viner v. CadeU . . 49, 56, 74 Vining, re . . 132, 147 W. Walker, re .. 90 Wahnsley v. Milne. . 12 Ward, ex parte . . 75 Warren, ex parte .. 136 XIV TABLE OF CASES. PAGE Waterfall v. Penistone 16 Watkins, ex parte 43, 55, 60, 62, 63, 66 V. Bircli . . 30, 37 Watson V. Peaohe . . 67 Webb V. Whinney . . 57 Wedge V. Newlyn . . 103 yfeoAey, ex parte .. 124 West V. Skip . . 73 Wharlton v. Elirkwood 159 White V. Hunt . . 160 V. Morris . . 26 • — V. Wilks . . 60 Whitfield i>. Brand . . 62, 66 Whitmore v. Claridge 114 V. Empson 54 ■ V. Mason . . 40 WhitweU 1!. Thompson 104 Wiggins, ex parte . . 66 WHcoxon V. Searby 160 WiXka, ex parte .. 47,60 WilHams, ex parte .. 33, 73 V. Burgess 139 V. Evans , . 14 Wilson, ex parte . . 30, 44, 64 Wilson V. Day . . 98, 101 , PAGE Wilson V. Greenwood 40 Winier, ex parte .. 106,109 Winstanley, re . . 106, 109 Winter, ex parte . . 7, 91 Wood, re 61, 99, 108, 109 V. Dixie . . 39 V. Eo woliffe . . 161 Woodhouse v. Murray 99, 104 Woods V. Eussell . . 67 WordaU v. Smith . . 36 Worseley v. De Mattos 99 100, 120 Wright, re 80, 81, 82 V. Bird . . 50 Wrigley, re . . 90 Wyndham, ex parte 44 Y. Yeo ». AUen . . 48 Young V. Fletcher . . 124 V. Waud . . 96, 126 Zucco, re .. 93 Zwilchenbart, ex parte 100 ADDENDA. The reader is requested to insert the following eases in their proper places : — Page 4, line 11, after tlie reference to Byerley v. Prevost, Add " and see Graham y. Wilcockson, 35 L.T., N.S. 601." Page 5, line 18, Add " This decision was affirmed on appeal. (25 W.E. 313.)" Page 8, line 3 from bottom, Add " Affirmed on appeal. (25 W.R. 313.)" Page 14, line 20, Add " See also In re EsKck, Ex parte Alexander, 26 W.E., 260 ; li.R., 4 Ch. D. 603. A mortgage of leaseholds by mere deposit of deeds does not protect trade fixtures therein from passing to the trvistee upon the bankruptcy of the mortgagor, -without a registered assignment, the fixtures remaining in the apparent ownership of the mortgagor. (In re Trethowan, Ex parte Tweedy, W.N., 1877, 16.)" Page 16, line U, Add " and see Greenbirt v. Smee, 35 L.T., N.S. 168," Page 19, line 22, Add "and see Greenbirt v. Smee, 36 L.T., N.S. 168." Page 27, line 2, after the reference to Philpotts v. Philpotts, Add "but see also Bowes t. Foster, 27 L.J., Ex. 262 ; Taylor V. Bowers, L.E., 1 Q.B.D. 291 ; 46 L.J.; Q.B. 39." Page 47, line 3, Add " But a professional nurse, who kept a lodging-house for invalids, and supplied them with board, at a profit, as well as lodging and nursing, has been held to be the keeper of an 'hotel' and a trader within the Bankruptcy Act, 1869. (Ex parte Thome, Ee Jones, L.E., 3 Ch. D. 457; 35 L.T., N.S. 532.)" XVI ADDENDA. Page 65, line 12, Add " And tlie same rule applies to debentures as well as to shares of a joint stock company. {Se IPryce, 21 Sol. Joum. 257.)" Page 61, line 12 from bottom, after the reference to JExpm-U Sodm, Add " but see also In re Fwuicm, Ex parte Buck, L.E., 3 Ch. D. 795." Page 74, line 3, Add " The onus of proving that the true owner consented to the goods being in the order and disposition of the debtor rests upon the trustee. (In re EalicTc, Ex parte FMlUps, 25 "W.R. 231 ; L.E., 4 Ch. D. 496.)" Page 75, Hue 10 from bottom. Add " And see In re Eslie/c, Ex parte Phillips, 25 W.E. 231 ; L.R., 4 Ch. D. 496." Page 85, after line 19, Add " It should be noticed that these sections of the Bank- ruptcy Act do not operate to protect a transaction which (as in the case of an unregistered bill of sale) is made absolutely Toid by the Bills of Sale Act, as agaiust the trustee in the bankruptcy or liquidation of the mortgagor. {Ex parte Attwater, Be Turner, 35 L.T., N.S. 682 ; 25 W.E. 206.)" Page 106, after line 5, Add " and see also Ex parte King, L.E., 2 Ch. D. 256 ; 46 L.J., Bkcy. 109 ; Ex parte Threlfall, 46 L.J., Bkoy. 8." Page 110, line 9, Add " See also In re Vane, Ex parte Rtlbrook, W.N., 1877, 16." Page 112, after paragraph 2, Add " S.C, sub. mm. Be Mapleback, L.E., 4 Ch. D. 160." Page 112, line 12, Add " and see also In re Vane, Ex parte Fulbrook, W.N., 1877, 16." THE LAW BILLS OF SALE. CHAPTER I. What is a bill of sale within the Bills of Sale Acts. Tlie popular idea of a bill of sale is that it is a mortgage of personal chattels. Tms definition is only partially correct, for a bUl of sale is a deed or instrument of assignment ty whicli personal chattels are transferred from one person to another without actual deHyery. In the latter respect it dififers from a transfer hy deHvery in which no writing is necessary — but deHvery to, and possession of, the goods by the person to whom they are trans- ferred, are essential. Thus, if I say to A.B., " I giye, sell, or pledge, this chair to you," and hand it over to him, and he takes possession of it, nothing further is needed to complete his title to it ; but if I giro the chair and retain possession of it, it becomes necessary that I execute and deliver to A.B. a valid written assignment, or, in other words, a bill of sale of it, and in that case, the delivery of the- writing is equivalent to the delivery of the chatteL 2 WHAT IS A BILL OF SALE. The assignment or bill of sale may be either absolute or conditional. When it is absolute, the yendor con- veys his entire property in the goods to the purchaser. When it is conditional, or by way of mortgage, the conveyance is made subject to a right in the convey- ing party to demand the re-assignment of the goods, upon payment of the money advanced upon them. If the money be not paid according to the condition, the property remains absolutely in the mortgagee. It is advisable ia all cases that a bill of sale, whether abso- lute or conditional, should be made by deed. A deed possesses great advantages. It implies that there was a consideration for the transaction, and stops any inquiry on that point ; and it also prevents the grantor giving any evidence to contradict or vaiy any state- ment or matter appearing on the face of the deed, except upon the ground of fraud, duress, or illegality. Nevertheless, a bill of sale, whether absolute or by way of mortgage, need not necessarily be by dee^ but will be sufficient if it clearly show that it was intended to operate as an assignment. {Thompson v. Pettit, 16 L.J., Q.B. 162 ; Flory v. Denny, 21 L.J., Ex. 223 ; Maughan v. Sharpe, 34 L.J., O.P. 19, per Williams, J. ; and see Ex parte Montague, Be O'Brien, L.E.., 1 Ch. D. 556; 24 W.E. 309, per MeUish, L.J.) This, however, only applies to biUs of sale for which there is a valuable consideration ; for if the transfer be a mere voluntary gift of goods (without actual delivery of them), it must be by deed, other- wise it is imperfect and inoperative, and will pass no property in the goods to the person in whose favour it is made {Irons v. Smaltpiece, 2 £. & Aid. 551 ; Shower v. Pilck, 4 Ex. 478), although such person may be the wife or child of the donor. It is seldom that a bill of sale is requisite, except the transaction is in its whole or partial effect a mort- WHAT IB A BILl OF SALE. 3 gage, or a gift ■with deferred possession, such as a voluntary settlement hy a father of his furniture, &c., upon his children or others, reserving to himself the use of the goods settled, for his life. For, where a hon& fide sale has taken place for valuable considera- tion, and possession has been taken of the chattels by the purchaser, there is no necessity for a written assignment. The most that is required is a properly stamped receipt. If, however, a person transfer his interest in personal chattels by an instrument which in law would be construed to be a " biU of sale," and retain possession of the chattels, so that the evidence of the title of the grantee to the chattels consists simply oi the instrument, the grantee should perfect his title by registration {post Chapter VII.), in accordance with the provisions of the Bills of Sale Acts, 1854 and 1866. (17 & 18 Vict., c. 36 ; 29 & 30 Vict., c. 96.) As a guide for determining what instruments do and what do not require registration, we shall proceed to consider what instruments have been held to be " bills of sale " within the meaning of those Acts. What is a hill of sale. — The statute 17 & 18 Vict., c. 36, s. 7, enacts as follows : — " The expression ' hill of sale ' shall include hills of sale, assignments, transfers, declarations of trust without transfer, and other assurances of personal chattels, and also powers of attorney, authorities, or licences to take possession of personal chattels as security for any debt." The documents contemplated in this enumeration are those, and those only, which are intended in them- selves to pass to or confer upon their holders a legal or equitable title to chattels, and which are relied upon by the holders as conferring such title. There- fore, where there has been an absolute sale of goods, a b2 4 WHAT IS A BILL OF SALE. mere receipt for tlie purchase money, although it is the only written evidence of the transaction, is not a bill of sale -within the Act if it is not intended to be a record of the transaction, or profess on the face of it to be a grant or transfer of goods, or a charge upon them, or to confer a right to take possession of them, although it refers to an ittventory of the goods, and although they remain in the vendor's possession. {Allsop v. Bay, 31 L. J., Ex. 105 ; 7 H. & K 457 ; ByerUy v. Prevost, L.R., 6 C.P. 144 ; Hale t. Metropolitan Saloon Omnibus Company, 28 L.J., Ch. 777; Newman v. Cardinal, 2 F. & F. 840 ; Thomson v. Barrett, 1 L.T., N.S. 268.) But a memo- randum of receipt, which also in terms professes to give the holder a title to the chattels, is a bill of sale. So that where a transaction was in fact an advance of £300, secured by a document which purported to be a memorandum of the sale of certain engines, and a receipt for £300 (the expressed purchase money), and contained the following clause, "the said engines to be removed at the convenience of the purchasers," the document was held to require registration. {Ex parte Stooke, Re Bampfield, 20 W.R. 925.) An instrument containing the terms of a hiring of furniture or other goods does not require registration {Ex parte Emerson, Re Hawkins, 41 L. J., Bkcy. 20 ; 20 W.R. 110, per Bacon, C.J. ; Ex parte Stooke, supra), unless it be, in fact, a mortgage security, and the form of a letting is adopted to evade the appearance of being such a security. Thus, where an instrument reciting a sale of certain chattels by A. to B., and payment for the same, purported to be a demise of the chattels by B. to A. at a certain rent, payable quarterly, with a proviso entitling B. to enter and take possession if the rent should be unpaid for ten days after any of the quarterly days of payment, or if execution should TVHAT IS A BILL OF SALE. O- issue against the goods of A. ; it was held that this- instrument required registration. {Phillips v. CHbbons,. 6 "W.E. 527 ; and see & parte Lovering, Re Jones, 43 L.J., Bkcy. 116 ; L.R., 9 Ch. 621.) A 'mortgage deed containing a power of distress- does not come mthin the meaning of a " licence to take possession of personal chattels." {Morton t. Woods, 38 L.J., Q.B. 81; L.E., 4 Q.B. 293.) But a lease by a hrewer of a puhHc-house, containing a licence to the lessor, upon the lessee maldng default in' payment of the "balance of the account current," to- take possession of the stock in trade, was held to require- registration. {Ex parte Sopcrqft, 14 W.R. 168.) A document which amounts to a transfer of chattels is a bill of sale requiring registration, notwithstanding it is merely drawn up as evidence of a previous verbal agreement. {Brantom v. Griffits, L.E., 1 C.P.D. 349 ; 45 L. J., C.P. 588.) Assurances which confer an equitable, as well as those which confer a legal title, are within the words. " other assurances of personal chattels." Therefore an agreement or covenant to execute a biU of sale requires to be registered, if the bUl of sale has not been actually executed, and the agreement is relied upon as giving the holder a title to the chattels, (^x parte Mackay, 42 L.J., Bkcy. 68', L.E., 8 Ch. 643; Edwards^. Edwards, 45 L.J., Ch. 391 ; L.R., 1 Ch. D. 454 ; 2 Ch. D. 291 ; Penedo v. Johnson, 29 L.T. 452 ; 22 W.R. 103.) So does an agreement, in considera- tion of supplying goods on credit, " to hold at the disposal of the vendors" all the stock of raw materials, and to execute all documents requisite to give effect to the security. {Ex parte Conning, 42 L.J., Bkcy. 74 ; L.E., 16 Eq. 414.) But where, by a building contract, after providing for the erection of houses, and the granting of leases thereof to the builder as thej' 6 WHAT IS A BILL OF SALE. stould be finished, and for advances to be made by A., the owner of the land, to B., the builder, to carry on the work, it was agreed that " all materials which should have been brought upon the premises by B. for the purpose of erecting such buildings, should be con- sidered as immediately attached to and belonging to the premises ; and further, that in case B., his exeoU" tors, &c., should fail to proceed with the erection and completion of the houses, or any of them, within the times specified, it should be lawful for A., his heirs, &c., to enter upon and take possession of the whole, or any part of the land, not leased, with all buildings and improvements thereon, and all hricJcs and other building materials thereon, for his and their own absolute use and benefit;" it was held not to be either " an assignment, transfer or other assurance of personal chattels," or " a licence to take possession of personal chattels as security for a debt " within the Act. {Brown V. Bateman, L.E., 2 C.P. 272 ; 36 L. J., C.P. 134 ; Blake v. Izard, 16 W.R. 108.) What is not a bill of sale. — The 7th section of 17 & 18 Vict., c. 36, while it defines what shall, also enumer- ates what documents shall not be considered bills of sale. This enumeration is as follows : — Assignments for the benefit of the creditors of the person making or giving the same. [An assignment to come within this exemption must be for the benefit of all the assignor's creditors, Reg. v. Creese, 43 L.J., M.C. 51 ; L.R., 2 O.C.R. 105 ; but it wiU be sufficient if its terms are sufficiently wide to admit every creditor, although the deed nowhere states that it was intended to include aU, General Furnish- ing Company v. Venn, 32 L. J., Ex. 220 ; 2 H. & C. 153 ; and the fact that some creditors have not elected to come in under a deed of which they might have taken advantage will not alter the case, Ashford V. Tuite, 7 Jr. C.L. Eep. 91.] WHAT IS A BILL OF SALE. 7 Marriage settlements. [These terms do not include a post-nuptial settlement, unless made in pursuance of an ante-nuptial agreement, Fowler \. Foster, 28 L. J., Q.B. 210 ; Ashton v. Blackshaw, L.E., 9 Eq. 510 ; 39 L. J., Ch. 205 ; Qugen t. Sampson, 4 F. & F. 974. But an ante-nuptial settlement of chattels would extend to chattels purchased after marriage in renewal of those included in the settlement, Sase- linton V. CHU, 3 T.E., 620 n. ; Duncan t. Cashin, L.E., 10 C.P. 564 ; 44L. J., C.P. 225, without the ne- cessity for registration in respect of such renewals.] Transfers or- assignments of any ship or vessel, or any share thereof. [This includes the deposit by way of security of a builder's certificate of an unfinished ship. Ex parte Winter, 44 L.J., Bkcy. 107 ; 33 L.T., N.S. 62.] Transfers of goods in the ordinary course of business of any trade or calling. [See Reg.Y. Thomas, 11 Cox, 635.] Bills of sale of goods in foreign parts [e.g., in Ireland or Scotland, Coote t. JecJcs, 41 L.J., Ch. 699 ; L.E., 13 Eq. 697], or at sea ; Bills of lading ; India warrants ; Warehouse-keepers' certificates ; Warrants or orders for the delivery of goods, or any other documents used in the ordinary course of business, as proof of the possession or control of goods, or autho- rizing, or purporting to authorize, either by endorse- ment or by delivery, the possessor of such document to transfer or receive goods thereby represented. [The Act does not apply to ordinary mercantile transac- tions, so as to bring them within the meaning of bills of sale. And where a customer of a bank obtained a loan on the security of certain wools, giving a letter of hypothecation, it was held not to be a security within the Act, JEx parte North- Western Bank, lU e, 42 L. J., Bkcy. 6 ; L.E., 15 Eq. 69.] WHAT ARE PERSONAL CHATTELS. CHAPTER II. What are personal chattels within the Bills of Sale Acts. In the preceding Chapter we have considered when the form and nature of a document brings it within the scope of the Bills of Sale Acts. We now propose to consider the equally important question of when an instrument comes under those Acts hy reason of the subject matter with which it deals. The Acts extend only to assurances of personal chattels. The 17 & 18 Vict., c. 36, s. 7, defines what is included under that term, and enacts that "the expression 'personal chat- tels' sAa/^ mean goods, furniture, fixtures, and other articles capable of complete transfer by deHvery, and •shall not include chattel interests in real estate, nor shares or interests in the stocks, funds, or securities of any government, or in the capital or property of any incorporated or joint stock company, nor choses in action, nor any stock or produce upon any farm or lands, which, by virtue of any covenant or agreement, or of the custom of the country, ought not to be removed from any farm where the same shall be at the time of the making or giving of such bill of sale." The statute only applies to things which might be, but are not, completely transferred by delivery. {Bran- torn V. Qri:ffits, 45 L.J., C.P. 588; L.R., 1 C.P.D. 349.) Therefore it does not include an assurance of growing crops. {lb.) Mxtures. — The class of property which, under the above definition, has been the most fruitful subject of WHAT AKE PERSONAL CHATTELS. 9 litigation is that of " fixtures." This has arisen to a certain extent from the loose manner in which that term has heen used both by the courts and by text writers. The most generally accepted definition of the word "fixture, "is, that it is a chattel which is so annexed to the land as to become part of the freehold. {SeeHlwes v.Mam, 2 Sm.,L.C. 162, 182, 7th ed.) But aU chattels classified as fixtures are not comprehended under that term as used in the Bills of Sale Act. " The word fixtures, as I understand it, in the Bills of Sale Act, " observes James, L.J., "means that thing which in contemplation of law has a distinct «xistence as a fixture." (Hz parte JDagUsh, 42 L.J., Bkcy. 102 ; L.R., 8 Ch. 1072.) To make this more clear, it will be convenient to state shortly, so far as they concern our present work, the rules of law as to fixtures. The rule is, that 'Whatever is affixed to the soil becomes part of the soil, and acquires all its descendible qualities. But the first difficulty is to determine what is sufficient annexation to deprive articles of their chattel character. " Perhaps," says Blackburn, J., " the true rule is, that articles not otherwise attached to land than by their own weight are not to be considered as part of the land, unless the circumstances are such as to show that they were intended to be part of the land ; the onus of showing that they were so intended lying on those who assert that they have ceased to be chattels ; and that, on the contrary, an article which is affixed to the land, even slightly, is to be considered as part of the land, unless the circum- stances are such as to show that it was intended aU along to continue a chattel ; the onus lying on those who contend that it is a chattel." {Solland\. Sodgson, 41 L.J., C.P. 146 ; L.R., 7 C.P. 328 ; Chidkt/ v. Churchwardens of West Sam, 32 L.T., N.S. 486.) In the case of an owner in fee who affixes chattels 10 WHAT ARE PEKSOKAl CHATTELS. to his freehold, his interest in both land and chattels is the same, that is, he has an absolute power of dis- position over both. It is true the fixtures become part of the land, but he can, if he chooses, remove them again just as he can remove the soil or fell the trees. In the case of a mere tenant for years different considerations obtain. If he affix chattels to the freehold, they also become part of the freehold. As by the terms of his letting, he has only an interest of limited duration in the freehold, it followed that at the end of his term, when he had to give up the land, he had also to give up all articles which by his annexation had become part of the freehold. To have removed them, after once annexing them, would have been to commit waste. To prevent this hardship, and to encourage trade, or to enable tenants to have fuU enjoyment of the demised property for domestic convenience, the law gradually came to recognize two classes of fixtures disfinct from ordinary fixtures, viz., " trade fixtures " and " tenant's fixtures." Towards these two classes the following relaxation of the hard rule was made, viz., that they were part of the land so long as they remained attached to the land ; that the tenant might remove them during the continuance of his estate on the land, or perhaps within a limited time after ; but that if he allowed the time to pass within which he might remove them, then they remaiaed absolutely a part of the freehold. The test as to the removability of "trade fixtures" is whether the removal is in accordance with any pre- vailing practice, or possible without injury to the esfaite, and whether the articles were in themselves of a perfect chattel nature before they were attached, or at least have in substance that character independently of their union with the soiL The test as to " tenant's WHAT AKE PERSONAL CHATTELS. 11 fixtures " is more severe, and is whether they are slightly fixed, or can be removed entire and -without damage to the fabric. "We see, therefore, that the interest of an owner in fee is the same both as to fixtures and land ; but in the case of a leaseholder, whilst his interest in the land is limited, his interest in those fixtures, which by the rules of law he is entitled to remove, is absolute. " When you once arrive at the fact that the person has the property in fixtures as distinct from their con- nection with and adhesion to the freehold, then they are the very class of things intended to be provided for by the Bills of Sale Act." (Hx parte Daglish, 42 L. J., Bkcy. 102 ; L.R., 8 Ch. 1072, per James, L.J.) The above sketch, necessarily meagre, of a wide subject will, we hope, make clear the distinctions hereinafter pointed out, so far as concerns fixtures, between mortgages of freehold and leasehold properties. Fixtures included iri, a mortgage of freehold. — Fixtures being regarded as part of the land, it follows that, unless there are some words in the instrument to exclude them, a mortgage in fee of real estate passes fixtures of every description annexed to the realty {mtchmany. Walton,4M..&WA16; Mather y.IVaser, 25 L.J., Ch. 361 ; 2 K. & J. 536), including articles which, as between landlord and tenant, would be con- sidered trade or tenant's fixtures (Climie v. Wood, 38 L.J., Ex. 223 ; L.E., 4 Ex. 328 ; Hollands. Hodgson, 41 L.J., C.P. 146; L.E., 7 C.P. 328) ; for "trade fix- tures" and "tenant's fixtures" are terms of convenience applicable to the case of a tenant annexing fixtures on the property of another, — they have no applicability to the case of an owner in fee annexing them on his own property. (Zow^Jo^^o»JV.5erry,39L.J.,Q.B.37; L.R., 6 Q.B. 123; Msher v. Dixon, 12 CI. & F. 312.) And the fixtures pass not as fixtures but as part of the land 12 WHAT ARK PERSONAL CHATTELS. {Holland y.Eodgson, 41 L.J., C.P. 146; L.R., 7 C.P. 328, per Blackburn, J.), and therefore need not be mentioned in the instrument. If the mortgagor, after the execution of the mortgage, affixes any chattels to the freehold, the benefit of those fixtures also passes to the mortgagee. ( Wahmley v. Milne, 29 L. J., C.P. 97 ; 7 C.B., N.S, 115.) And where a partnership firm occupied premises -which belonged exclusively to one of the partners who mortgaged the premises, it was held that the mortgagee was entitled to fixtures set up by the partnership firm subsequently to the mortgage, the mortgagee not being concerned with the equities , arising from the partnership. (Oullmck t. Swindelly 36 L.J., Ch. 173; L.R., 3 Eq. 249; Ex parte Cotton, 2 Mont., D. & De G. 725.) The rule above stated applies whether the security is a legal mortgage by deed or an equitable mortgage by deposit, and whether the deposit be or be not accompanied by a memorandum of deposit. (-B« parte Price, 11 L.J.,"Bkcy. 27 ; 2 Mont., D. & De G. 518 ; & parte Cowell, 17 L.J., Bkcy. 16 ; Ex parte Loyd, 3 Dea. & 0. 765 ; Longbottom v. Berry, 39 L.J.^ Q.B. 37 ; L.R., 5 aB. 123 ; 2 Dav. Cony. 723.) With any fixture will pass without special mention, whatever, though accidentally detached from it or not of its own nature a fixture, may be essential for the proper employment of the machine or fixed article of which it forms part, even though it be more or less capable of use in a detached state. Such may be the stones of a mill, moveable parts of fixed machinery, healds and reeds of a loom, and the like. {Cart v. Sagar, 3 H. & N. 370 ; 27 L. J., Ex. 378 ; 1 Fisher on Mortgages, 29.) We have said that fixtures wilj pass unless there are words in the security to exclude them. Where from the language used it can be inferred that they WHAT AKE PERSONAL CHATTELS. 13 ■were not intended to pass, tliey will be excluded. (2 Dav. Cony. 729.) Thus, where there was a mortgage of an iron foundry and two dwelling-houses, together with aU fixtures in and about the said dwelling-houses, it was held that, although without these words the fixtures in the foundry would have passed, the efi'ect of the words was to exclude them. {Sare v. Sorton, 5 B. & Ad. 715,.) But in a later case upon a mort- gage of freeholds, with an enumeration of specific kiuds of fixtures, the court refused to limit the assu- rance to the specific fixtures named. {Mather y. Fraser, 25 L.tr., Ch. 361 ; 2 K. & J. 558.) Therefore, in mortgages of freeholds and copyholds, fixtures pass, whether mentioned or not, as part of the land, and the instrument does not require registration as a bill of sale. {Mather v. Fraser, supra.) Fixtures included in a mortgage of leaseholds. — Until recently, no distinction was recognized as respects the non-liability to registration between a mortgage of freeholds and one of leaseholds comprising trade or tenant's fixtures. {Boyd v. Shorrock, 37 L.J., Ch. 144 ; L.E,., 6 Eq. 72.) But in Hatdrey v. Butlin (42 L.J., Q.B. 163; L.E., 8 Q.B. 290), where a tenant for years mortgaged his term by way of underlease, and his trade fixtures by way of abso- lute assignment, contained in a second witnessing part, the mortgage, so far as it related to the fixtures, was held to be a bill of sale requiring registration. (And see Beghie v. Fenuiick, L.E., 8 Ch. 1075 ; 19 W.E,. 402.) And even where a lessee for a term of 999 years created a mortgage by demising and assigning in the same witnessing part a cotton null and fixed and moveable machinery, the haben- dum as to the mill and fixed machinery for the residue of the term less the last day, and as to the moveable machinery absolutely, and the power 14 WHAT AKE PEKSONAL CHATTELS. of sale enabled the mortgagee to seU the _ fixed and moveable machinery either with the mill or separately, it was held by the Lords Justices that as to the fixtures the instrument required registra- tion. {Ex parte DagKsh, L.E., 8 Oh. 1072; 42 L.J., Bkcy. 102.) By the same court, however, in a case where a leaseholder had mortgaged, by way of under- lease in one witnessing part, a public-house and cottages, " and all and every the tenants' fixtures in, upon, or about the premises," but the power of sale did not, ' in the opinion of the court, empower the mortgagee to sell the fixtures separately from the buildings, it was held that the deed did not require registration. {Ex parte Barclay, L.R., 9 Ch. 576 ; 43 L.J., Bkcy. 137.) And it was there laid down that the test whether a mortgage of leaseholds, including tenant's or trade fixtures, requires registration, is whether it empowers the mortgagee to sever and seU the fixtures separately from the building. "A fine but substantial distinction," observed James, L.J. The difEerenee between assurances of freeholds and leaseholds above indicated, exists only for the purposes of the Bills of Sale Act, and for determining the question as to the necessity for registration. In other respects the rights of grantees of freeholds and lease- holds are the same with regard to fixtures. Assu- rances of the latter, equally with the former, wiUpass trade fixtures, whether mentioned or not {Meux v. Jacob, 44 L.J., Ch. 481 ; L.R., 7 H.L. 481), whether the assurance is a legal mortgage or by deposit {In re Richards, 38 L.J., Bkcy. 9 ; L.R., 4 Ch. 630 ; Ex parte Oawan, 25 L. J., Bkcy. 1 ; Williams v. Evans, 23 Beav. 239), and whetherthearticles were affixed before or after the mortgage. {Meux v. Jacob, supra.) It would be well that the court which determined the last case (House of Lords) should have an opportunity of reviewing the de- WHAT ARE PERSONAL CHATTELS. 15 cisions which have overruled the salutary decision of BoydY. Shorrock (37 L.J., Ch. 144 ; L.R., 5 Eq. 72), and unsettled a great number of securities. If a mortgage in fee also includes chattels which are not fixtures, or if fixtures are assigned as distinct from the land, the instrument will require registration. (See Waterfall v. Penistone, 26 L. J., Q.B. 100.) Ajjter acquired chattels. — It is often of the greatest importance to the value of the security that a hill of sale should extend to all fature furniture, stock in trade, or machinery of the grantor, as well as that of which he is possessed at the date of the hiU of sale. Formerly the operation of an assignment of after acquired property dififered at law and in equity. That a man could not assign that which was not in existence, or which he had not got, either actually or potentially, was a rule recognized both in law and in equity. But, while in law such an assignment was held to he whoUy inoperative, in equity, though it had no imme- diate operation, the assignment was held in suspense until the assignor became possessed of chattels of the class which he professed to assign, and immediately he did so the assignment operated upon them. At law, the benefit of such an assignment was usually attained by a licence to the grantee to seize after acquired chattels, but even that passed no interest in them unless the grant were ratified by the grantor after he had acquired them (Lunn v. Thornton, 1 C.B. 379 ; 14 L. J., C.P. 161 ; Gale v. Burnell, 7^ Q.B. 850), and the grantee had actually taken possession of them. (Hope V. Mayley, 25 L. J., Q.B. 155 ; Oongreve v. Evetts, 23 L.J., Ex. 273.) In equity, no further act was required, but immediately on the acquisition of the property, the mortgagor held it in trust for the mort- gagee, according to the terms of the assignment. {Eoh-oydY. Marshall, 33 L.,T., Ch. 193; 10 H.L., Ca. c2 16 WHAT AKE PEKSONAL CHATTELS. 191.) Tkis distinction between tte two branches of law has been abolished, and the rule in equity wiU henceforth prevail in all courts. (36 & 37 Yict., c. 66, s. 25, sub-sec. 11 ; and see 20 Sol. Jour. 57, per Lush, J. ; ib. 299, per Archibald, J.) So that now an assignment of after acquired chattels operates as a contract, transferring the beneficial interest to the assignee as soon as they are acquired by the assignor, and that without the necessity for any further act or assurance. {Holroyd v. Marshall, 33 L.J., Ch. 193 ; 10 H.L., Ca. 191.) Although, however, after acquired chattels may be assigned, and a contract to assign will operate as an actual assignment, yet, in order that a mere contract shall amount to an actual assignment, it must purport to confer an interest in the future chattels immediately by its own force, and without the necessity of any further act on the part of the assignee upon the chattels coming into existence. Therefore, an assign- ment of existing chattels, coupled with words which amount to a mere licence to seize after acquired property, will not be construed as an equitable assign- ment of the latter. Thus, where S., the lessee of a brickyard, by a bill of sale, assigned to Q-. all the prepared clay, bricks, &c., which were then in and upon the brickfield, and gave Qc. full licence, power and authority at aU times during the continuance of the security to enter the premises and seize and hold possession of aU and every clay, bricks, &c., which might then be in, upon, or about the said premises, in such and the Hke manner as if the same formed part of the chattels and effects thereby expressed to be assigned. Circumstances arising which prevented the licence to seize being acted upon, it was contended that the licence acted as an equitable assignment ; but it was decided that it did not {Reeve v. Whitmore, 33 WHAT ARE PERSONAL CHATTELS. 17 L.J., Cli. 63), Lord Westbury thus lucidly explaining the distinction : " The principal question is, whether the assignment by way of mortgage from S. to Q-. operates as a present contract with respect to the bricks, and the clay, and the materials that might thereafter be brought upon the premises by S. If there were upon the face of the deed, either expressly, or if there could be collected from the provisions of the deed by necessary implication, a contract or agree- ment between the parties that the mortgagee should have a security attaching immediately upon future chattels to be brought on the premises, then, un- doubtedly, the contract would have given to the mort- gagee, Gr., a present interest in all those materials, whether manufactured or raw, which might be brought on the brickfield after the date of the security. But it is quite clear, so far as express words are con- cerned, there is nothing of the kind to be found. * * * The deed may be accurately represented as being a contract and a security to the extent of all the manu- factured articles, &c., then upon the premises, and a contract that the mortgagee should have a power at any time, whenever he pleased, of entering upon the premises and seizing the manufactured and raw mate- rial that he might find there, even although these things so seized were not upon the premises at the time of the security. The diflFerence, therefore, is very clear and distinct with regard to the operation of the deed ; it is the difference between a present contract that the. mortgagee should have a right and an interest attaching immediately by force of the contract upon all that property which, in futuro, might be brought upon the premises, and a contract that the mortgagee should have a power of entering upon the premises for the purpose of seizing and takmg possession of that future property. The contract that he should 18 WHAT AEE PEKSONAL CHATTELS. have a power to seize, appears to me to be perfectly distinct from a contract that he should have a present and immediate right, which would attach instanter upon the property brought upon the premises without the act of seizure. I think he had no such thing. I think the true extent and operation of the deed was merely this, that he had passing to him, by virtue of the contract, a right and a security on, and an interest in, all the then existing property ; and the security is accompanied by a power enabling him at any time to enter upon the premises, and take the future property that might be found there. But a power is a very different thing from an interest ; and u the extent and limit of the contract be merely that he should have such a power, then an interest would not arise under the power till the power was exercised." (And see Cole V. Kernot, 41 L.J., Q.B. 221 ; L.R., 7 Q.B. 534.) Therefore, where an instrument does not purport to confer a present interest, but merely a licence to seize after acquired chattels, the mortgagee must still perfect bas title by taking possession of the chattels when they have been acquired by the mortgagor. {Congreve v. Evetts, 23 L.J., Ex. 273 ; Hope v. Sayley, 25 L.J., Q-B. 155 ; 5 E. & B. 830.) Such a Hcenee may, if the deed be capable of that construction, be extended to crops and property on after taken land, as well as on land in the possession of the grantor at the time of the execution of the deed {Carr v. Allatt, 27 L.J., Ex. 385), and also to goods on premises, not bmlt until after the execution of the instrument. {Chidell V. Galsworthy, 6 O.B., N.S. 471.) It seems that a licence to seize after acquired property is revocable at any time until acted upon ; and the fact that the licence is under seal, or for valuable consideration, makes no difference. As to property not seized under it, the licence wiU be treated WHAT ARE PERSONAL CHATTELS. 19 as revoked by a subsequent assignment for the benefit of creditors, though, such assignment may itself be invalid as against trustees in bankruptcy (Garr v. Acraman, 25 L.J., Ex. 90), and the licence cannot be exercised after the bankruptcy of the mortgagor. {Cole V. Kernot, 41 L.J., Q.B. 221 ; L.R., 7 Q.B. 534.) Whether the security be by way of assignment or licence, the intention to include after acquired chattels must be clearly expressed, and will not be inferred from doubtful expressions. {Re New Clydach, 8fc., Company, L.E,., 6 Eq. 514.) So that, where a bill of sale, by way of mortgage, assigned all the furniture and effects " in, upon, about, or belonging to," a particular house, and contained a proviso that, after default made in payment of the sum thereby secured, it should be lawful for the mortgagees to enter the said house and " to take, possess, and enjoy all and every the goods, chattels, effects, and premises to their own use and benefit," it was held not to justify a seizure of goods not in the house at the time of the execution of the bill of sale. ■ {Tapfield v. Hillman, 12 L.J., C.P. 311.) Even where the intention to include after acquired chattels is evident, to make the security effectual the chattels must be described in such terms that the courts could enforce specific performance of the con- tract. {HolroydY. Marshall, 33 L.J., Ch. 193; Belding v. Bead, 34 L. J., Ex. 212.) It would seem that a description is suf&ciently specific if it is confined to effects of a particular kind to be subsequently brought into a defined place. {lb.) The necessity for specifically describing the chattels intended to be comprised applies equally to a. bill of sale of present as of after acquired chattels. If I grant a man twenty deer to be taken out of the herd in my park, no right of property in any particular 20 WHAT ARE PERSONAL CHATTELS. deer passes to the grantee. But, if I have a black deer amongst the other deer in my park, I can grant him, and the grant is good ; or, if I have two that can he distinguished from the rest, and I grant one, or both of them, it is good for this, that it is certain what thing is granted. A grant of fifty quarters of corn, twenty hogsheads of ale, or a dozen baskets of fruit, amounts only to a covenant to deliver goods answering the description used in the grant, and does not operate as an immediate transfer of any particular parcel of corn, quantity of ale or fruit, unless the com was measured, the ale put into hogsheads, and the fruit into baskets, and set apart so as to be ascer- tained and identified at the time of the execution of the grant. (Addison on Contracts, 814, 7th ed.) Of course it is not necessary to particularize the chattels, only to identify/ them. So that, if any general description will unmistakeably point out what is meant, that is sufficient ; as, for instance, " all the sheep now on my farm at B.," or, " all the furniture, now in, or here- after to be placed in, my house at C," &c. (See post, Chapter YIII., on the description of the chattels.) RIGHTS OF GRANTEE AGAINST LANDLORD. 21 CHAPTER III. Mights of a grantee of a bill of sale as landlord of the grantor. The security of tlie grantee of a bill of sale of chattels which are upon premises of which the grantor is merely tenant, is liable to be defeated, whether the bin of sale be registered or not, by the landlord taking the goods for distress. The landlord has a common law right to distrain whenever there is a demise of corporeal hereditaments at a rent certain, payable on a certain day, and the rent is in arrear. If the rent is reserved payable in advance it may be so distrained for. {JBuckley v. Taylor, 2 T.R. 600.) Unless privileged under some exception established at law, aU personal chattels upon the demised premises, to whomsoever belonging, may be distrained. (See generally on the subject of Distress, Eedm. and Ly., L. & T. 134, et seq.) Of the chattels which are exempt from distress, only two classes are necessary to be noticed as materially affecting the rights of bills of sale holders. The first is fixtures (Simpson v. Sartopp, 1 Sm., L.C. 439, 7th ed.), including those which as between landlord and tenant are removable by the latter (Darby v. Sarris, 1 Q.B. 895, ante, p. 10), and notwithstanding they have been temper arHy disannexed. (Gorton v. Falkner, 4 T.R. 567.) These are absolutely exempt. The second class includes beasts of the plough, sheep and instruments of husbandry. These are condition- 22 EIGHTS OF GKANTEE AGAINST LANDLOKD. ally exempt, and are not to be distrained if there is any other sufficient distress. (51 Hen. 3, stat. 4 ; Davies v. Aston, 1 C.B. 746 ; Keen v. Priest, 4 H. & N. 236.) As to the first class of articles, a bill of sale in which they are included will be a good security against the landlord in any event; and as to the second class, when there are other chattels sufficient to satisfy the landlord's claim. Unless by agreement the tenant has given to the landlord a more extended right, the latter can only distrain goods which are actually found upon some part of the premises out of which the rent issues. To this rule there are three exceptions, (1) in the case of cattle on commons, appendant or appurtenant to the demised premises ; (2) cattle driven off the premises, in the sight of the landlord, to avoid distress ; and (3) goods or chattels fraudulently or clandestinely removed by the tenant to prevent the landlord from distraining for rent. In the latter case, the landlord may, within thirty days next ensuing the removal, seize such goods, wherever they may be found (11 Geo. 2, c. 19, s. 1), unless before seizure they have been sold to a horiA fide purchaser not privy to the fraud. (S. 2.) Tenants carrying away their goods, and all persons wilfully and knowingly aiding them in such carrying away, become liable to a penalty of double the value of the goods. (S. 3.) But goods removed by the grantee of a bill of sale could not be followed by the landlord, nor would such removal subject the grantee to penalties under section 3, notwithstanding he removed them under an apprehension that the landlord would distrain. (Bach v. Meats, 5 M. & S. 200.) And though goods upon leasehold premises are liable to distress, the mortgagee may, to a certain extent, protect himself by marshalling the proceeds of the BIGHTS OF GRANTEE AGAINST LANDLORD. 23 goods. Thus, where a landlord distrained goods, part of which were comprised in a bill of sale, and part not so comprised, and sold part of each class of goods under the distress, and the tenant after the sale became bankrupt, it was held that the grantee of the biU of sale was entitled to stand in the landlord's place for the purpose of ha-ving his debt paid out of the proceeds of the. goods taken under the distress, which were not comprised in his security. (JEx parte Stephenson, De Gex, 586 ; 17 L.J., Bkcy. 5 ; 2 Fisher, 764.) 24 WHEN BILLS OF SALE VOID CHAPTER IV. Under what circumstances a hill of sale will he void against creditors under the statute 13 Eliz., c. 5. One of the first and most material points to be ascertained in relation to a biU of sale, is whetlier the transaction which it embodies or represents, is or is not a mere trick or contrivance, on the part of the maker, to defeat the rights of his creditors ; and whether the biU of sale is intended to have actual operation, according to its apparent character and effect. From the earliest period of our legal history, we find evidence of the great suspicion and disfavour with which the law regards all dealings of a man with his property, by wmch he places out of the reach of his creditors the ordinary remedies for the recovery of their debts. So early as the fourteenth century, a statute was passed for rendering such transactions void; and in the reign of Elizabeth, two statutes, still in force, were passed, having the same object. The one (27 EHz., c. 4) is for the protection of purchasers, and applies only to conveyances of real estate ; the other (13 EHz., c. 5) is for the protection of creditors, renders void all conveyances made with intent to delay or defraud them, and applies as well to goods and chattels as to land. The preamble of this statute declares it to be made " For the avoiding and abolishing of feigned, covinous and fraudulent feoffiments, gifts, grants, alienations, conveyances, bonds, suits, judgments, and executions, UNDER STATUTE 13 ELIZ., C. 5. 25 as well of lands and tenements as of goods and chat- tels," wtdcli "have been and are devised and contrived of malice, fraud, covin, collusion, or guile, to the end, purpose, and intent, to delay, hinder, or defraud, creditors and others of their just and lawful actions, suits, debts, accounts, damages, penalties, &c., not only to the let or hindrance of the due course and execution of law and justice, but also to the overthrow of all true and plain dealing, bargaining and chevisance (i.e., contract or agreement), between man and man, without the which no commonwealth or civil society can be maintained or continued." By the second section it is enacted : " That all and every feoffment, gift, grant, alienation, bargain, and conveyance of lands, tenements, hereditaments, goods, and chattels, or of any of them, or of any lease, rent, common, or other profit, or charge out of the same lands, tenements, hereditaments, goods, chattels, or any of them, by writing or otherwise, and all and every bond, suit, judgment, and execution, at any time had or made sithence the beginning of the Queen's Majesty's reign, that now is, or at any time hereafter to be had or made, to or for any intent or purpose before declared and expressed, shall be from henceforth deemed and taken (only as against that person or persons, his or their heirs, successors, executors, administrators, and assigns, and every of them whose actions, suits, debts, accounts, &c., by such guileful, covinous, or fraudulent devices and practices as afore- said, are, shall or might be, in anywise disturbed, hindered, delayed, or defrauded) to be clearly and utterly void, frustrate, and of none effect ; any pre-' tence, colour, feigned consideration, expressing of use, or any other matter or thing to the contrary notwith- standing." By the sixth section it is provided : " That this Act* 26 WHEN BILLS OF SALE VOID or anything therein contained, shall not extend to any estate or interest in lands, tenements, hereditaments, leases, rents, commons, profits, goods, or chattels had, made, conveyed, or assured, or hereafter to he had, made, conveyed, or assured, which estate or interest is or shall he upon good consideration, and bond fide lawfully conveyed or assured to any person or persons, or bodies politic or corporate, not having at the time of such conveyance, or assurance to them made, any manner of notice or knowledge of such covin, fraud, or collusion as aforesaid, anything before mentioned to the contrary hereof notwithstanding." This statute (confirmed by 14 Eliz., c. 11, s. 1, and made perpetual by 27 Eliz., c. 5, s. 2), though said to have been merely declaratory of what was previously the common law of the land {Richards V. Attorney-Oeneral, 12 CI. & F. 42), has at all events defined, with an admirable simplicity, well worthy of extended imitation, the law upon a some- what complicated subject. It declares a fraudulent conveyance of any kind absolutely void as against the grantor's creditors, and their representatives or trustees in bankruptcy, both at law {Doe v. Ball, 11 M. & W. 531) and in equity. {Holmes v. Penney, 26 L.J., Ch. 179 ; and see per Kindersley, V.O., Sue V. French, ib. 317.) And such dispositions of property are alike void against creditors, who become so subsequently, as against those who were so before the transaction. {Graham v. Furher, 14 C.B. 410 ; 23 L.J., C.P. 51.) But even a fraudulent assignment is binding, as between the parties, and as against strangers other than creditors {Doe v. Roberts, 2 B. & Aid. 367 ; and see White v. Morris, 11 C.B. 1015), for it is a just and general principle of law that no man shall set up his own fraud as the basis of any right or claim UNDER STATUTE 13 ELIZ., C. 5r 27 for his own benefit {Doe v. Roberts, 2 B. & Aid. 367 ; PMll^pottsY. Phillpotts, 20 L. J., C.P. 11) ; so that no per- son can take advantage of the statute, but the parties injured by the fraudulent assignment, amongst whom, of course, are creditors who are prejudiced by it, but even creditors cannot, if they be privy or con- senting thereto. {Olliver v. King, 25 L.J., Ch. 427.) A fraudulent conveyance passes no property, and it is, when set aside, looked upon as having been no con- veyance at aU, so that, where a man makes a fraudu- lent gift of goods, which is therefore void against his creditors, and dies indebted, he is considered to have died in full possession as to the claims of his creditors, and the goods are assets in the hands of his personal representative. {Shears v. Rogers, 3 B. & Ad. 362.) In determining whether a bill of sale is void under the statute 13 Eliz., c. 5, the fraudulent intent need not be actually proved to have existed. "Where the effect of the assignment is in fact to delay, hiader or defraud creditors, and the surrounding circumstances are' such as to raise the presumption of fraud, the bill of sale will be void unless that presumption be effec- tually rebutted. But in the absence of strict proof in consideringwhetherthefactsofanyparticularcasereaUy warrant the inference of fraud, the state of circum- stances at the time the bill of sale was made must be regarded, and not subsequent events, except such as may be presumed to have been in the contemplation of the grantor at the time he executed the deed, for " as to the matter of fraud the same ought to be fraud at the beginning." {Stone v. Qrubham, 2 Buls. 225.) No exact and inflexible definition of fraud can safely be framed. Fraud is sometimes a question of law, sometimes a question of fact, and sometimes a mixed question of law and fact, and the whole ques- D 2 28 WHEN BILLS OF SALE VOID tion of fraud or no fraud depends upon the particular circumstances of eacli case, and is to be determined by tbe jury (Martindale v. JBooth, 3 B. & Ad. 498) or the court. (SeeThompsonY. Webster,28L.J.,Gh.700.) The .statute was designed, in the language of its preamble, to avoid transactions devised to the "purpose and intent to delay or defraud creditors." It is obvious, that the intention of a man in doing any particular act must be, in almost every case, a matter known only to himself ; but as every person must be presumed to foresee and intend the natural and necessary conse- quences of his own act (Hamsbottom v. Lewis, 1 Camp. 279 ; Ex parte Ooater, 22 W.R. 935; 30 L.T., N.S. 620), it has become the practice of the courts to regard certain acts or circumstances as indicative of a fraudu- lent intention, although even these are not absolutely conclusive evidences of fraud. We now propose to consider the most important of these evidences or, as they are sometimes termed, " badges " of fraud. (1.) Effect of continuance of possession on the part of the grantor. — The courts have laid down •the doctrine that, if a man execute an absolute bill of sale of his goods and chattels, and afterwards remain in possession of them, a strong presumption of fraud arises, for it is obvious that ostensible occupation is a tacit assertion of ownership, whereby credit may be obtained, tradesmen be induced to supply goods, and debts be contracted. On the other hand, want of possession is in no instance a mark of fraud against creditors who concur and are parties to it. In Twyne's Case (3 Rep. 80), decided only ten years after the passing of the statute, a debtor, in secret, made a general gift of all his goods and chattels to one of his creditors in satisfaction of his debt ; and, nevertheless, after making the bill of sale, continued in possession of the goods. It was held that the deed UNDER STATUTE 13 ELIZ., C. 5. 29 was fraudulent, under the Act of Elizabeth, as against another creditor, who subsequently took the goods in execution ; for, although there was a debt really due to the grantee, yet, for the conveyance to come within the proviso of the Act (section 6), the sale must be both for valuable consideration, and also bond fide, and the circumstance of the debtor remaining in possession was treated by the court as one of the marks of fraud, continuance in possession by the donor being a sign of trust for his benefit ; but the sale in this case was held void, not only because the donor continued in posses- sion, but because he used the goods as his own to trade and traffic with others, and so defrauded and deceived them. This case was decided under 13 Eliz., c. 5, only ; but such a gift would now be voidable other- wise than under that statute, as will be noticed in a subsequent Chapter. In Edivards v. Harben (2 T.E.. 587), it was held that, where a creditor took an absolute bill of sale of the goods of his debtor, but agreed to leave them in his possession for a limited time, and in the meantime the debtor died, whereupon the creditor took and sold the goods, he was liable to be sued as executor de son tort for the debts of the deceased, and aU the judges were unanimously of opinion, that, unless possession accompanies and follows a bill of sale, it is fraudulent and void in point of law. But in this case there were additional indi- cations of fraud, viz., the generality of the assign- ment ; and the fact that more property was assigned than was necessary to cover the debt. Moreover, although this case does not appear ever to have been overruled, it }ias frequently been mentioned un- favourably, and in England (though not in America, see Benj. on Sales, 2nd ed., 405) the broad rule there laid down has been materially qualified by subsequent decisions, the result of which may be stated to be, 30 WHEN BILLS OF SALE VOID that, althoTigli continuance in possession by the vendor of goods sold is ever considered strong evidence of fraud, yet it is not in law fraud ^er se, andthej)re- sumption of fraud may be rebutted by extrinsic evidence. ( Watkim v. Birch, 4 Taunt. 823 ; Lindon V. Sharp, 6 M. & G. 895-898 ; Pennell v. Dawson, 18 C.B. 365.) It seems, therefore, that " the principle of Twyne's Case (3 Rep. 80 b., ante, p. 28) as to non-delivery of possession is to be applied in much the same way as the rule in bankruptcy with respect to order and disposition, which is, that the goods must remain in the order and disposition of the bankrupt up to the time of the bankruptcy, and when possession is given before the bankruptcy, there is no ground for saying that it is fraudulent" {per James, L.J., Ex parte Wilson, 22 W.E.. 241), and, practically, the doctrine is limited to absolute bills of sale, under the terms of which the grantee would be entitled to immediate possession. If a biU of sale be made to take effect at some future time, or upon particular conditions expressed in the instrument, the sale is not void, though possession be not delivered immediately ; because, the grantor's continuance in possession until such future time, or until the condition be performed, is consistent with the stipulations of the deed. For instance, where the bill of sale is conditional, as by way of a mortgage, and contains a provision that the mortgagor shall retain possession until he makes default ra payment of the mortgage money, and he does so, the transaction is valid. {Martindale v. Booth, 3 B. & Ad. 498.) In that case. Lord Tenterden, C. J., said : " The consideration for the bill of sale was not only an antecedent debt, but a sum of money to be advanced by the plaintiffs to enable P. to carry on his trade. The omission of the plaintiffs to take XJNDEE STATUTE 13 ELIZ., C. 5. 31 possession of tlie goods was perfectly consistent -witli the deed ; for it was stipulated that P. should continue in possession until default made in payment of all or any of the instalments, and that on such default it should be lawful, although no advantage should have been taken of any previous default, for the plaintifiPs to enter and take possession of the household goods and furniture. The possession by P., therefore, being- consistent with the deed, and it having been given in consideration of money advanced to enable P. to carry on his trade, I cannot say that it was absolutely void." Indeed, under such a provision the mortgagor, until default, can maintain an action of trespass against any person (including the mortgagee himself) who may seize the goods. {Brierly v. Kendall, 17 Q.B. 937.) Again, if it be consistent with the nature of the transaction — for instance, where the instrument in substance, though not in form, is a mortgage — the mortgagor may retain possession of the goods assigned, until default, without thereby rendering the bill of sale necessarily void under the statute of EHzabeth, even though the deed does not contain an express provision enabling him to do so. A striking illustra- tion of this proposition will be found in the case of Cook y. Walker. (3 W.R. 357.) There, a bill of sale was given of the furniture and effects of an hotel, by way of security, but the document contained no pro- viso enabling the maker to retain possession until default. There was no evidence that the grantor was in insolvent circumstances at the date of the bill of sale ; and it was held that, the fact of his retaining possession of the goods did not render the instrument impeachable by his other creditors, the transaction bemg a mortgage, and it appearing necessary for the purposes of his business that the grantor should remain in possession of the property. 32 WHEN BILLS OF SALE VOID AlthougK, therefore, the want of delivery of pos- session, when consistent with the deed, or with the nature of the transaction, will not make the transaction fraudulent and void, it is, at the same time, not wholly protected by that circumstance, but may be impeached by any other presumption or proof of fraud. " Where," said Loi:d Abinger, C.B., "the possession is according to the deed, that will not set up the deed, if the jury should think the deed was a fraud." {Riches v. 3vans, 9 C. & P. 640.) The principle, then, is that in most cases want of possession is a circumstance requiring explanation, in the absence of which a jury may be led to infer that the bill of sale was never intended to operate ; so that, where a bill of sale of chattels is not conditional, or by way of mortgage, but is made ia satisfaction of a debt, the grantee, for his own safety, should take pos- session of the goods immediately after the gift, not trustiag to a merely formal possession, or to anything less than an open change of ownership. (2). Effect of an absence of valuable consideration. — : Another grave, though not absolutely conclusive, indi- cation of fraud, appears where a bill of sale is made by a debtor without an adequate valuable consideration, for a man has no right to give away that which he owes to his creditors. Thus, mere voluntary transfers of property, made by a person at the time insolvent, are in all cases fraudulent and void as against creditors {Taylor V. Coenen, L.R., 1 Gh. D. 636 ; 34 L.T., N.S. 18 ;. and see Spirett v. Willows, L.E., 1 Ch. App. 620 ; 34 L. J.; Ch. 365 ; Crossley v. Elworthy, L.R., 12 Eq. 158 ; 40 L.J., Ch. 480 ; Mackay v. Douglas, L.R., 14 Eq. 106 ; 20 W.R. 652 ; Cornish v. Clark, L.R., 14 Eq. 184 ; 42 L.J., Ch. 14 ; Kent v. Riley, L.R., 14 Eq. 190 ; 41 L.J., Ch. 569 ; Bayspoole v. Collins, L.R., 6 Ch. App. 228 ; 40 L.J., Ch. 289), on the ground that UNDER STATUTE 13 ELIZ., C 5. 33 " benevolence, generosity, forbearance, may be well exercised, witb. tbis restriction, bowever, tbat tbe practice of tbese moral virtues is not made at tbe expense of otber people. To bold tbe contrary, would be directly opposed to tbe commonest principles of justice and bonesty." {Per Bacon, C. J.Bkoy., Ex parte Williams, L.E,., 10 Eq. 61.) And, said Lord Hatberley, L.C., in Freeman v. Pope (L.R., 5 Cb. App. 640) : " Tbe principle on wbicb tbe statute of 13 Elizabetb, c. 5, proceeds, is tbis, tbat persons must be just before •tbey are generous, and tbat debts must be paid before gifts can be made." Tbe law as to voluntary settle- ments is perfectly clear, and wbere tbe transaction purports to be a regular sale, it is of tbe utmost importance tbat tbe transfer sbould be for an adequate consideration, for — altbougb tbe court will not weigb nicely tbe amount — gross inadequacy of payment for tbe goods conveyed will be esteemed strong evidence of fraud {Dewey v. Bayntun, 6 East. 282 ; Strong v. Strong, 18 Beav. 408) ; and even sbould tbe fiiU consideration be given, yet it must not be given in sucb a form as to defeat creditors .{Stileman v. Ashdown, 2 Atk. 477), for instance, as for tbe maintenance of tbe debtor for bis life ; for if so tbe bin of sale will be set aside. {Weak v. Bap, 28 L.J., Cb. 45 ; see also French v. French, 25 L.J., Cb. 612.) But, wbere a debtor sells property for an adequate consideration, bis estate is not diminisbed — ,it exists, tbougb in a different form — and being still available to pay bis debts, no one is injured. {Copis V. Middleton, 2 Mad. 410-430.) A bill of sale, not being fraudulent against credi- tors under the statute, unless a fraudulent intention to defeat tbe rigbts of creditors is properly establisbed, proof of such fraudulent intention will, of course, .supersede any consideration. {Bott v. Smith, 21 Beav. 511.) 34 WHEN BILLS OF SALE VOID Wliere a bill of sale is made in consideration of a present advance, and not merely in satisfaction of a previous debt, it is far less liable to, though, of course, not necessarily free from, the imputation of fraud. Thus, I may lend A.B. money to buy furni- ture, and then take a bill of sale of the goods to secure myself, and leave the furniture in his possession, and the bill of sale (due formalities being observed) ■will hold good, for the purpose is honest, and the effect to enable the debtor to carry on his business ; and so, where goods taken in execution were sold by auction, and purchased by a person, not a creditor, who took a biU of sale of the sheriff, and then lent the goods to the original owner for a tem- porary and honest purpose, the bill of sale was held good. {Kidd v. Rawlinson, 2 Bos. & Pul. 59.) Where, therefore, the consideration for a biU of sale is not only a previous debt, but also a present advance to enable the debtor to carry on his trade, that fact will be considered evidence of the good faith of the trans- action. {Martindale v. Booth, 3 B. & Ad. 498.) But the present advance should be substantial, for although it must be remembered that the real ques- tion in these cases is not whether the present advance was great or small, but whether there was an honest intention of carrying on the business, yet, in determining the question whether a particular bill of sale is hon& fide or a contrivance to defeat creditors, a jury wOl always consider the relative value of the property, withdrawn from the reach of the creditors, in propor- tion to the amount of their claims at the time, and the value of that substituted for it. {Dewey v. Bayntun, 6 East. 257.) The amount of the present advance is therefore a most important, though by no means conclusive, consideration, for under this statute, if a bill of sale be not made bon& fide, the fact that it UNDER STATUTE 13 ELIZ., C. 5. 35 was made for valuable consideration will not alone protect it agaiiist creditors. " I have known," said Lord Mansfield, in the well known case of Cadogan V. Kennett (Cowp. 434), " several cases where per- sons have given a fair and full price for goods, and where the possession was actually changed; yet, being done for the purpose of defeating creditors, the trans- action has been held fraudulent and therefore void. * * * * So, if a man knows of a judgment and execution, and with a view to defeat it purchases the debtor's goods, it is void, because the purpose is iniquitous. It is assisting one man to cheat another, which the law will never allow." And so, where a trader's goods having been seized under a fi. fa., the defendant paid to the sheriff the amount at which the goods had been valued, being just sufiicient to satisfy the sheriff's execution, and the sheriff duly executed a bill of sale to the defendant, who was aware that the trader was indebted to other creditors, the jury found that the object of the transaction was not merely to relieve the trader from a forced sale, but to protect the goods from other creditors, and the sale was declared to be void under 13 Eliz., c. 5. {Graham v. Furher, 23 L.J., C.P. 51.) A hon& fide purchaser, for valuable consideration, without notice of any fraud on creditors, is more entitled to be protected than the creditors themselves, whose only claim is on the general estate, for he has paid his money for those particular goods which he claims, and is expressly exempted from the operation of the Act by the sixth section ; and, even though there are some suspicious circumstances, a purchase will be held good, unless it be shown that it was in fact a contrivance to defeat creditors, and that the purchaser was privy to it. [Hale v. Saloon Omnibus Company, 28 L.J., Ch. 777.) And in another case, it was 36 WHEN BILLS OF SALE VOID held that, where a bill of sale has been made for value, not only must fraud be shown, in order to avoid the transaction as against the purchaser, but it must be shown that he was privy to the fraud against creditors ; for, unless this position can be estabKshed, the purchaser who has paid his money, or other consideration, has a right, paramount to that of creditors. And the purchaser must have notice, not only of the debt, but of the fraudulent intention. {Jones V. Boulter, 1 Cox, 288.) (3.) Effect of the absence of a valuation or appraise- ment. — There should be a proper valuation or appraise- ment of the goods and chattels, prior to the making of the bill of sale, for otherwise it may be inferred that the transfer was not intended to be a real one. Both vendor and purchaser, should, of qourse, know the true nature and value of that which they intend shall be transferred. (Tu^ne's Case, 1 Sm., L.C.) (4.) Effect of secrecy in the transaction. — Secrecy is always a badge or mark of fraud, and, conversely, notoriety of change of ownership necessarily lessens the presumption of fraud. Actual change of posses- sion is, of course, notice to the world that there has been a change of ownership, but such notice may be equally well given by notoriety, so that the presump- tion of ownership remaining in the grantor may be efPectually rebutted. In the case of Wordall v. Smith (1 Camp. 332), Lord Ellenborough said : " To defeat an execution by a biU of sale there must appear to have been a bona fide substantial change of possession. It is a mere mockery to put in another person to take possession jointly with the former owner of the goods, — a concurrent possession with the assignor is colourable. There must be an exclusive possession under the assignment, or it is fraudulent and void as against creditors." But if TJNDEK STATUTE 13 ELIZ., C. 5. 37 there are other circumstances — as, for instance, the fact that the execution of the hill of sale is notorious in the neighbourhood — which showthe jointpossession to be consistent with good faith in the parties to the transaction, . the presumption of fraud may be negatived. A striking illustration of this last pro- position is in Latimer v. Batson (4 B. & C. 652), where the sheriff seized the goods of the Duke of Marlborough, and sold them to the judgment creditor, who sold them to the plaintiff, who put a man in possession, but allowed them to remain in the Duke's mansion and be used by him as before ; it was held that it was properly left to the jury to say whether the sale was a hon& fide sale for money paid by the plain- tiff, and that, if so, they should find a verdict for him. Here, it wijl be perceived, .the goods had been seized by the sheriff, who is a public officer, and his seizure a public act ; so that the transaction was accompanied by some notoriety, the circumstances attending the execution being known in the neighbourhood, and the court considered the notoriety of the transfer operated against the presumption of fraud. In other cases, it has been held also that if goods, seized under an execution, are sold bond fide, and the buyer suffers the debtor to continue in possession of the goods, still they are protected against subsequent executions, if the circumstances under which he has the possession are known in the neighbourhood. {Leonard v. Baker, 1 M. & S. 251 ; Watkmsy. Birch, 4 Taunt. 823 ; Jezeph v. Ingram, 8 Taunt. 838.) In Twyne^s Case (1 Sm., L.C.), which is the leading case on this subject, Lord Coke gave advice to those who take a bni of sale, in satisfaction of their debt, from one who is indebted to others also. " Let it be made in a public manner, before the neighbours, and not in private, for secrecy is a mark of fraud. Let the goods 38 . WHEN BILLS OF SALE VOID and chattels he appraised by good people to the very- value, and take a gift in particular, in satisfaction of your debt. Immediately after the gift take possession of them ; for continuance of the possession of the donor is a sign of trust." Of course, a mere formal delivery or colourable possession will not be enough. In order to make a bill of sale valid under the Act of Elizabeth, every step in reference to it must be honestly taken, in good faith, without design to delay or defraud the creditors, whom the statute was expressly passed to protect. Besides the evidences of fraud above mentioned, there are other circumstances mentioned in the reports as raising the presumption of fraud. Beservation of a power to mortgage, as being actually a power of revocation, is a constant evidence of fraud (Tarback V. Marhury, 2 Vern. 509) ; the fact that the owner permits third persons to treat the property as the debtor's {Lady Arundell v. PJiipps, 10 Ves. 151) ; the grantor keeping the deed in his own custody, which,, obviously, leads to the inference that the instrument was not meant to operate as a lona fide transfer {Doe V. Ball, 11 M. & W. 533) ; the absence of a schedule to the deed of the goods conveyed; the fact that the consideration of the bill of sale is not truly stated (but see Biddulph v. Gould, 11 "W.R.. 882), or that the deed does net in other respects represent the real contract between the parties, are also circumstances which the courts regard with suspicion. A bill of sale is not void under the statute because it has the effect of delaying a particular creditor, if it be made bond fide, on the demand of a creditor, and for good consideration, and not for the mere purpose of defeating creditors. The debtor may, therfefore, at any time before execution by a judgment creditor. UNDEK STATUTE 13 ELIZ., C. 5. 39 either secure one particular creditor, or provide rate- aUy for all his creditors. (1 Fisher on Mortgages, 200.) To support such a transaction, and to rebut the presumption of fraud arising from an apparent want of consideration, evidence of the real circumstances, and of the existence of a valuable consideration, may be given, provided it do not contradict the allegations of the deed. {Gale v. Williamson, 8 M. & W. 405.) A hill of sale may be good under 13 JEliz., c. 5, though made to defeat an expected execution. — The Act of Elizabeth, which we are now considering, does not prevent a debtor preferring one of his creditors to the rest ; and a bond fide sale or mortgage of goods for a valuable consideration, is not invalidated by reason of the grantee's knowledge that it is made to defeat an expected ^execution. {Wood v. Dixie, 7 Q.B. 892; Darvill v. Terry, 6 H. & N. 807 ; 30 L. J., Ex. 355 ; Alton V. Sarrison, L.R., 4 Ch. App. 622.) In Wood V. Dixie {ubi sup. ), a debtor executed a bill of sale by way of mortgage of his goods, as a security for money lent; and Coltman, J., told the jury that, if the transac- tion was to defeat the execution creditor, the conveyance was void as against him ; but the Court of Queen's Bench held that direction wrong. There the security was money lent at the time ; but it appKes equally where the consideration is an antecedent debt, for, said Gibbs, C.J. (in Bmton v. Thornhill, 2 Mars. 430 ; S.C, 7 Taunt. 149), " there is no rule of law which prevents a man from preferring one bon& fide creditor to another;" and a debt due is a good and valuable consideration, nor is a bond fide assignment of the debtor's property for the benefit of certain creditors void imder this Act, although it may be void under section 92 of the Bankruptcy Act of 1869. (Alton V. Sarrison, supra ; Alkn v. Bennett, L.R., 5 Ch. App. 577.) e2 40 WHEN BILLS OF SALE VOID But a bill of sale whicli is clearly made to defeat the operation of the bankrupt laws, like all other contracts entered into with a similar purpose, wiU he void and of no effect. The object of the bankrupt laws is primarily to secure the equal distribution of the debtor's property amongst his creditors, without preference, and no man can be allowed to contract himself out of them. ( Wilson v. Cfreenwood, 1 Swanst. 471 ; Wliitmore v. Mason, 2 J. & H. 204 ; Ex parte Mackay, L.R., 8 Oh. App. 643, ; Richesr. Meller, Q.B.D., Mich. 1876.) Thus, the preference' must not be reaUy fraudulent— as, for instance, if a man's creditors have all agreed to accept a composition, and the debtor makes a secret transfer to one of them to induce him to sign the deed, to which all the creditors are parties — such transfer would clearly be voidable as a fraud upon the other creditors. {Leicester v. Eose, 4 East. 372.) So also, a transfer of the property of the debtor to trustees for the benefit of all his creditors, though not void by the operation of the statute, is void under the Bankruptcy Act, 1869, as an act of bankruptcy. (See Chapter VI.) To prove a bill of sale fraudulent, declarations made by the grantor at the time of executing it, are admissible in evidence, but not those made at another time. {Phillips v. Earner, 1 Esp. 355.) AGAINST TRUSTEES IN BANKRUPTCY. 41 CHAPTER V. Under what circumstances chattels comprised in a bill of sale mil be saleable by the trustee in bankruptcy of the grantor, as being in his order and disposition at the time of bankruptcy. It is proposed in the present Chapter to point out, as clearly as the somewhat difficult and technical nature of the subject will allow, the risks to which the security of the holder of a bill of sale is exposed by the bankruptcy of the maker. The chief objects of all bankruptcy laws have been, (1) to obtain an equal distribution of the debtor's assets amongst his creditors without preference, and (2) to protect the general creditors of a trader against that undue credit which might be acquired by his being allowed to parade as his own, property which, in point of fact, belongs to other people. In general, such property only, as belongs to the bankrupt, is subject to distribution, but under particular circumstances (which we shall now consider), even the property of others is liable to be applied towards the payment of the bankrupt's debts, ia the same manner as any other part of his estate. The property of a bankrupt divisible amongst his creditors is clearly described m the 15th section of the Bankruptcy Act, 1869, the fifth sub-section of which declares that it shall comprise, amongst other things : — " All goods and chattels being, at the commence- ment of the bankruptcy, in the possession, order, or 42 , WHEN BILLS OF SALE VOID disposition of the bankrupt, being a trader, by the consent and permission of the true owner, of, which goods and chattels the bankrupt is reputed owner, or of which he has taken upon himself the sale or disposition as owner; provided that things in action, other than debts due to biTn in the course of his trade or busiuess, shall not be deemed goods and chattels within the meaning of this clause." (32 & 33 Vict., c. 71, s. 16, sub-sec. 5.) The doctrine of " reputed ownership," as it is called, contained ia the above cited sub-section, is not a novel feature in the Bankruptcy Act of 1869. It had its origin in the reign of James 1st, and, although frequently objected to and reprobated, on the ground that it is unjust to take one man's goods to pay the debts of another, it has ever since been main- tained as a principle, that property suffered to remain in the visible possession of the bankrupt, is divisible among his creditors. "That clause refers," says Lord Sedesdale {Joy v. Campbell, 1 Sch. & Lefroy, 336), commenting upon the almost corres- ponding terms of an Irish Bankruptcy Act, " to chattels in the possession of the bankrupt in his order and disposition, with the consent o± the true owner, that means where the possession, order and disposition, is in a person who is not the true owner, or to whom they do not properly belong, and who ought not to have them ; but whom the owner per- mits, unconscientiously as the Act supposes, to have such order and disposition. The object was to pre- vent deceit by a trader from the visible possession of a property to which he was not entitled. But, in the construction of the Act, the nature of the possession has always been considered, and the words have been construed to mean, possession of the goods of another, " with the consent of the true owner." AGAINST TKUSTEES IN BANKRUPTCY. 43 Tkis exposition of the law on the subject, as laid down by Lord Redesdale, has been universally approved {se& per Parke, B., Simmons v. Edwards, 16 M. & W. 842) ; but probably no principle of law has been so variously applied by the courts as that of reputed ownership. Recent cases have, however, gone far to settle the law. " There are cases," said Lord Selbome, in Ex parte Watkins, Re Oouston (L.E,., 8 Ch. App. 520 ; 42 L. J., Bkcy. 50), "in which the courts have shown a decided inclination to reduce, within limits more consistent with a sound and reasonable view of the doctrine, some of the dicta or views which are to be found in some of the earlier cases. I should not, indeed, like to commitmyself to the strong language of Sir Frederick Pollock, in the case of Prismall v. Lovegrove (6 L.T., N.S. 329), in which he said that the old doctrine of reputed ownership was completely out of fashion, and had been so for at least forty years. It would be more in accordance with my opinion to say that the doctrine of reputed ownership has been the same from first to last, but that the courts have of late years looked more narrowly and closely to the real value and weight of the circumstances which tend, on the one hand, to confirm, and, on the other hand, to exclude, the reputation of ownership. In so doing they seem to me not to be going against the policy of the statute, but merely to be carrying it into effect in accordance with sound principle." Bjr the Act of 1869, the doctrine of reputed owner- ship is expressly limited to traders. This is simply a return to the law as established before the Bankruptcy Act of 1861, which statute, having made non-traders amenable to bankruptcy, brought them also within the doctrine of reputed ownership, from which they are now again expressly excluded. Astowho are traders within theBankrvptcy Act^ 1869. 44 WHEN BILLS OF SALE VOID — Naturally, the first inquiry in considering this sub- section is, to whom is it appucahle, that is, who are " traders " within the Act ? By section 4, the persons mentioned in the schedule are declared to be traders within the Act. The schedule is as follows : — Alum makers. Apothecai'ies. A surgeon who was licensed to practice as an apothecary, and supplied medicines to his patients only, was held to be a trader as an apothecary. {Ex parte Crahb, 8 De G., M. & G. 277 ; 25 L. J., Bkcy. 45 ; see also Ex parte Daubeny, 2 Dea. 72.) Auctioneers. Bankers. AxTo^ and navy agents are not {Richardson V. Bradshaw, X Atk. 128 ; Hankey v. Jones, Cowp. 745; Ex parte Wilson, 1 Atk. 217), but a person who, though not keeping books, &c., as bankers usually do, yet acts as a banker, may be included. {Ex parte Wilson, ubi sup.) It was formerly held that the holding of shares in a joint stock bank constituted a trading as a banker within the Bankruptcy Acts {Ex parte Sail, 3 Dea. 405 ; Ex parte Wyndham, 1 M., D. & D. 146), unless the shares were purchased expressly to obtain the benefit of the bankrupt laws {Ex parte Brundrett, 2 Dea. 219), or for some merely temporary purpose. {Ex parte Atkinson, 1 M., D. & D. 300.) But it is very doubtful whether a mere shareholder in a joint stock bank would now be adjudicated bankrupt as a trader within the meaning of the word trader ; and it is expressly enacted that shareholders in companies, incapable of being adjudged bankrupt under section 5 (Bkcy. Act, 1869), cannot be adjui- cated bankrupt as traders in respect of their shares. AGAINST TRUSTEES IN BANKRUPTCY. 45 Bleachers. Brokers. Includes pawnbrokers {Rawlinson v. Pearson, 5 B. & Aid. 124) ; bill-brokers {Ex parte Phipps, 2 Dea. 487) ; sbipbrokers {Pott v. Turner, 6Bing. 702) ; insurance-brokers (see Ux parte Stevens, 4 Mad. 256 ; Eden, Bkcy. 6, 7 ; Milford v, Hughes, 16 M. & W. 174) ; and money-brokers. {Ux parte Gem, 2 M., D. & D. 99.) A solicitor, wbo was in the babit of laying out money in investments for his clients, was adjudicated bankrupt as a money- broker. {Ex parte Gem, uhi sup.) Sharebrokers, stockbrokers and stockjobbers are expressly named in the schedule. {Infra.) Brickmakers. Includes those only who make it a business to build for hire, or by contract for others, or with intent to sell, let or deal with the buildings to gain a profit and a livelihood. {Ex parte Neirincks, 1 Dea. 78; and see iJe i^bwfer, 1 Fonb. B.C. 201.) Thus, a person who bought six carcases of houses for the purpose of finishing and selling them, and who ordered materials for this purpose, representing himself as a builder, was held a trader. {Ex parte Neirincks, ubi sup.) But one or two isolated trans- actions, not being part of a general system, will not make a man a builder {Stuart v. Sloper, 3 Ex. 700 ; Ex parte Stewart, 18 L. J., Bkcy. 14), as where persons employed builders to finish houses on which they had a mortgage. {Ex parte Edwards, 1 M., D. & D. 3.) Calenderers. Carpenters. Includes a person who buys timber, &c., for the purpose of manufacturing commodities for sale. 46 WHEN BILLS OF SALE VOID (See Chapman v. Lampshire, 3 Mad. .155.) A mere journeyman carpenter ■would not, it is sub- mitted, be included, but a sbip carpenter apparently may be. {Kirney v. Smith, 1 Ld. Raym. 741.) Carriers. A person wlio merely acts as a carrier for the purpose of making the best use of his land, is not thereby constituted a carrier -within the schedule. {Ex parte Bagshaw, 33 L.T. 276.) Cattle or sheep salesmen. Includes a farmer habitually buying many more sheep than necessary to stock his farm, and selling the surplus at a profit. {Ex parte Newall, 3 Dea. 333.) Coach proprietors. Coickeepers. This word " does not, of course, mean to include all persons who keep cows." (Per Knight Bruce, C.J. Bkcy. ; Hx parte Bering, De G. 398.) But it applies to all persons who keep cows merely for profit by the sale of the mUk, though not to a farmer who sells the milk of cows kept on his farm {Ex parte Dering, uhi sup. ; but see Carter \. Bean, 1 Swanst. 64), even though he retailed the milk himself. {Bell v. Young, 15 C.B. 524.) Byers. Fullers. Keepers of inns, taverns, hotels, or coffee-houses. Under this description are included lodging and boarding-house keepers who supply provisions to their lodgers at a profit, whether separately or at their own tables. {Smith v. Scott, 9 Bing. 14; Gibson v. King, 10 M. & "W. 667 ; Ex parte Birch, 2 M., D. & D. 659 ; Kingy. Simmonds, 1 H.L., Cas. 754; Ex parte Baniel, 7 Jur. 290.^ But they must be proved to have sold provisions in some AGAINST TRUSTEES IN BANKRUPTCY. 47 form {Ex parte Wilks, 2 M. & A. 667), for a mere lodgmg-liouse keeper is not within these words. {Ex parte Bowers, 2 Dea. 99.) Jjime burners. Livery stable keepers. Market gardeners. A farmer who grows some peas and potatoes in accordance with his farming lease, and consigns them to London for sale on commission, is not a market gardener. (Ex parte Hammond, De G. 93.) Millers. Packers. Printers. It was held {Re Cleland, L.E., 2 Oh. App. 466) that the secretary of an insurance company who dealt largely in the shares of the company, and sold shares for his friends, was not a trader within the Bankruptcy Act of 1849. But it is submitted that such a course of dealing would now constitute a man a sharebroker, or stockbroker, within the particular words of this schedule. Shipowners. A fisherman who owns fishing smacks used only for fishing purposes is not included. {Be Stubbs, 22 L.T. 291.) Shiptorights. Stockbrokers. Stockjobbers. Victuallers. Warehousemen. Wharfingers. Persons using the trade or profession of a scrivener, receiving other men's moneys or estates into their trust or custody. In Adams v. Malkin (3 Camp. 538), Gibbs, O.J., 48 WHEN BILLS OF SALE VOID said : " There is some difficulty at the present day in understanding correctly what a money scrivener is. There is no living character to refer to as an example." The difficulty has increased rather than diminished since that case was decided, hut it seems settled, that to make a man a money scrivener, it must be an occupation which he follows for a livelihood, and in which he carries on the business of receiving other persons' moneys to invest for them as occasion offers (Adams v. Malkin, 3 Camp. 538 ; LoU v. Melville, 3 M. & G. 40 ; JSce parte Dufawr, 21 L.J., Bkcy. 38) ; so that one or two transactions will not make a solicitor a scrivener {Ex parte Paterson, 1 Rose, 402 ; Ex parte Bath, Mont. 82), the intention to make a living hy the pursuit being essential. {Adams v. Malkin, ubi sup. ; Yeo v. Allen, 3 Doug. 214 ; Hutchinson v. , Gascoigne, Holt, N.P. 507 ; Lott v. MeMlle, uU sup.) Persons insuring ships or their freight, or other matters, against perils of the sea. ' Persons using the trade of merchandize hy way of bar-' gaining, exchange, commission, consignment, or other- wise, in gross or in retail. This description would appear to comprise all the merchants and tradesmen in the country. It has been held to include a commission agent. {Ex parte Eawher, 26 L.T., N.S. 64.) Persons who, either for themselves, or as agents or factors for others, seek their living hy buying and selling, or buying and letting for hire, goods or commodities, not mere choses in action, or by the workmanship, or the conversion of goods or commodities. One or two isolated purchases and sales will not bring a man within this definition of a trader. The buying and selling must have been part of a AGAINST TRUSTEES IN BANKRUPTCY. 49 general system intended as a means of gaining a living. {JEx parte Pdterson, 1 Hose, 402; Newland Y. Bell, Holt, JS^.P. 221 ; Hx parte Lavender, 4 Dea. & C. 487.) Thus, a man having over purchased goods for his own use may sell the surplus {Newla)idY. Bell, ubi sup. ; Summersett v. Jarvk, 3 B. & B. 2); the owner of a colliery may huy goods and sell them again to his own pitmen {per Eldon, C, Ex parte Gallimore, 2 Rose, 428 ; and see Cullen, 21); a schoolmaster may huy books and shoes, and sell them at an advance to his scholars ( Valentine v. Vaughan, Peake, 108) ; an executor may dispose of his testator's stock in trade, or continue the busiaess for a time really necessary ia order to wind it up {Marshall v. Broadhurst, 1 Cr. & J. 405 ; and see Ex parte Nutt, 1 Atk. 102 ; Ex parte Garland, 10 Ves. 110; Vinerr. Cadell, 3 Esp. 88; Ex parte Richardson, 3 Mad. 138) ; and a farmer may occasionally huy hay, com, horses, &c., with a view to selling again at a profit {Stewart v. Ball, 2 (N.E..) B. & P. 78), without necessarily becoming traders within the meaning of the Act, the dealing being in all these instances not usual, but accessorial merely to the main occupation of the person. So, also, a person who lets furnished lodgings may buy famiture and let it with the rooms, and, so long as his doing so is only ancillary to his main object of letting the lodgings, it is not a " buying and letting for hire" within the Act. {Ex parte Bowers, 2 Dea. 99 ; 3 M. & A. 33.) It is, therefore, an intelligible rule that the buying and selling, or buying and letting, must be in the usual course of a man's occupation {Crisp v. Pratt, Cro. Car. 549 ; Potman v. Vaughan, 1 T.R. 573 ; Ex parte GaUimm-e, 2 Rose, 428 ; Re Gleland, L.R., 2 Ch. App. 466), subject, of course, to inquiry as to the F 60 WHEN BILLS OF SALE VOID nature, extent and intent of tlie dealing in question. If, for example, a farmer buy and seU horses to an extent unauthorized by his character of farmer (see Bartholcnnew v. Sherwood, 1 T.R. 573 n.), he may be made bankrupt as a horse-dealer (though he have no licence to deal in horses. Ex parte Gibbs, 2 Rose, 38; Wright v. Bird, 1 Price, 20), or as a "cattle salesman" {Ex parte Newall, 3 Dea. 333, ante, p. 46) ; for, where pur- chases and resales are systematically effected to a large amount, there is, of course, strong evidence of trading. Provided, however, that the intention to deal generally, be proved, the extent of the dealiag becomes immaterial. {Ex parte Movie, 14 Yes. 603; Ex parte Lavender, 4 Dea. & C. 487 j Ex parte Paterson, 1 Eose, 402 ; Ex parte Magennis, 1 E,ose, 84 ; Ex parte Wilks, 2 M. & A. 667 ; Ex parte Cromwell, 1 M., D. & D. 158 ; Newland v. Bell, Holt, N.P. 221 ; Heanny v, Bi/rch, 3 Camp. 233 ; Holroyd v. Gwynne, 2 Taunt. 176; Ex parte Bryant, 1 V. & B. 211 j Eankey v. Jones, Cowp. 745.) " I do not," said Ashhurst, J., in Fatman v. Vaughan (1 T.R. 573), " consider the question of law to be governed by the quantum of the trading ; but I take the ride to be this, that where it is a man's common or ordinary mode of dealing, or where, if any stranger who appKes may be supplied with the commodities in which he professes to deal, and it is not sold as a favour to any particular person, there the person so selling is subject to the bankrupt laws." (See Ex parte Daubeny, 2 Dea, 72 ; Cannan v. Denew, 10 Bing. 292.) In accord- ance with the rule thus laid down, a farmer, who had at one time sold extensively a medicine (invented by himself) for the cure of the cattle AGAINST TRUSTEES IN BANKRUPTCY. 51 disease, and wlio still kept it on hand ready for sale to anyone yrho required it, was recently held a trader within the 87th section of the Act of 1869. {Ex parte Sheriff of Herefordshire, Re Smith, 44 L. J., Bkcy. 7.) Bakers, hrewers, butchers, shoemakers, hatters, smiths, tanners, tailors, cabinetmakers, &c., who buy the raw materials of their trades and improve them by labour and skill in manufacture for sale under another form, are, and always have been, included. ' But a farmer, grazier, common labourer, or workman for hire, shall not, nor shall a member of any partnership, association or coTnpany, which cannot be adjudged bankrupt under this Act (section 5), be deemed, as such, a trader for the purposes of this Act." The exemption merely extends to the occupations specifically mentioned, and will not protect a person from the consequences of being a trader, who loUows some other business within the statutory definition of trading ; but, to prove a person a trader within "the general words of the schedule, evidence of both buying and selliag is necessary. (Eden, Bkcy. ■3.) An admission by the bankrupt that he is in partnership with a trader is sufiicient (Pa/rker v. Barker, 1 B. & B. 9), and the bankrupt's declara- tions, when buying goods, of an intention to sell again are admissible to prove the trading. (Oale V. Halfknight, 3 Stark, 56 ; but see also Bromley V. King, Ey. & M. 228.) Whether a man is or is not a trader within the bankrupt laws is a question of law for the court (Hankey v. Jones, Cowp. 752 ; Gale V. Halflcnight, uhi sup.), unless, as frequently happens in cas6s of occasional trading, the question depends entirely upon the intent, when it is a r2 52 WHEN BILLS OP SALE VOID matter for tlie jury. {Ex parte Bryant, 1 Y. & B. 211 ; MilliJcin v. Brandon, 1 0. & P. 380.) A person may be made bankrupt as a trader, altbough tbe trade he carries on is illegal, as, where a man deals in smuggled goods, or, being a clergy- man, trades contrary to law. {Ex parte Meymot, 1 Atk. 198 ; but see as to removal of the disability to trade under which clergymen formerly lay, 1, Lindley on Partnership, 3rd ed., 78, note (6.) In order that the doctrine of reputed ownership may be appKcable, it is not essential that the debtor should have been adjudicated bankrupt as a trader. AU that is necessary is that he should be in fact a trader. {Revell v. Blake, 41 L. J., C.P. 129 ; L.R., 7 C.P. 300 ; S.C. on App., 42 L.J., O.P. 165 ; L.R., 8 C.P. 633.) This doctrine is one most materially affecting all persons advancing money to traders on the proverbially frail security of bills of sale. The Bills of Sale Act, providing for the registration of bills of sale, has no operation in narrowing this doctrine, nor do bills of sale, which are duly registered under the Act, possess any greater validity against trustees in bankruptcy than bills of sale had before the passing of the Act, in cases where the goods and chattels comprised therein are left in the possession of the grantor. " I do not think," observed Lord Justice Turner {Stansfield v. Cibbitt, 2 De G. & J. 222 ; 27 L.J., Ch. 266), "that the intention of the legislature in passing 17 & 18 Vict., c. 36, was to alter the law as to reputed owner- ship. The Act does not say that registration shall give any new effect to a bill of sale ; and, in the enactment as to the effect of omitting to register it, various persons, with some of whom the doctrine of reputed ownership has nothing to do, are classed together." A contrary opinion was, indeed, expressed AGAINST TRUSTEES IN BANKEXJPTCY. 53 by Yice-Chancellor Malins (Ashton t. Blackshaw, L.E,., 9 Eq. 510), and, apparently, by tbe Chief Judge in Bankruptcy (Ex parte Homan, L.R., 12 Eq. 698) ; but such a view, being clearly inconsistent with the decisions supporting that of Lord Justice Turner, has been since pronounced erroneous by the Chief Judge himself, who said, in Ex parte Harding, Re Fairhrother (L.R., 15 Eq. 227 ; 42 L.J., Bkcy. 30) : " I had no intention of deciding that the registration of a bill of sale prevents the operation of the reputed ownership clause. There is nothing in the decision of Vice- Chancellor Malins in Ashton v. Blackshaw (ubi sup.) inconsistent with this." The effect, therefore, of the 15th section of the Bankruptcy Act, is that, as a general rule, where a person, being a trader, sells, mortgages, or otherwise disposes of any goods or personal chattels, and is allowed by the purchaser, mortgagee or donee, to retain possession of them until his bankruptcy, such chattels will be sale- able by his trustee, and the title of the purchaser, mortgagee or donee will be defeated, notwithstanding that the instrument under which he became entitled has been duly registered in conformity with the re- quirements of the Bills of Sale Acts, and is in all other respects unobjectionable. If we consider the clause attentively, we shall at once see that the property saleable by the trustee in bankruptcy of the bankrupt, as being in his order and disposition at the time of bankruptcy, and therefore divisible amongst his creditors under this section, — (1.) Must consist of goods and chattels. — These words do not include lands or interests in lands, houses (Stephens v. Sole, cited 1 Atk. 157 ; 1 Yes. Sen. 352 ; Roe v. Galliers, 2 T.R. 133), heirlooms (Shaftesbury v. Russell, 1 B. & C. 666), fixtures, such as are ordinarily affixed to the freehold for the 54 WHEN BILLS OF SALB VOID convenience of tte occupier {Horn v. Baker, 2 Sm., L.C. 205, Ttli ed., and cases there cited ; Ex parte, Barclay, 5 De Gr., M. & Gr. 403), or fixed macliiiiery (Ex parte Wilson, Re Butterworth, 4 Dea. & C. 143 ; Ex parte Spicer, 2 Dea. 335) ; but it is otherwise -witli machinery not attached to the freehold. {Whit- more v. Empson, 23 Beav. 313.) This clause -was formerly construed so favourably for creditors that the words " goods and chattels " were held to include " choses in action " (Ryall v. Rolle, 1 Atk. 165), as to which it is clear that the bankrupt could have no visible possession. More recently, however, the courts have endeavoured to confine the doctrine more to property within its principle ; and the legislature, iu the Act of 1869, took choses in action, other than trade debts, out of the clause, by providing that " things in action, other than debts due to him in the course of his trade or business, shall not be deemed to be goods and chattels within the meaning of this clause" (Bkcy. Act, 1869, s. 15, sub-sec. 5), upon the con- struction of which words, as might have been ex- pected, the question speedily arose as to what choses in action are " debts due " in the course of trade. In Ex parte Kemp, Re Fastnedge (L.R., 9 Ch. App. 383 ; 43 L.J., Bkcy. 50), the question was, however, par- tially settled, and it was held by the Lords Justices that the expression " debts due" is not to be confined to debts presently payable, but, on the other hand, will not iuclude debts which were only contingent at the commencement of the bankruptcy. For, " until a sum certain has become due, and is to be paid in all events, there is, in my opinion, no debt due." {Per Mellish, L.J., Ex parte Kemp, Re Fastnedge, ubi sup.) In the case cited, it was held that sums retained by bankers against acceptances, and for which they had. given marginal notes, were not debts due to the AGAINST TRUSTEES IN BANKEUPTCY. 55 bankrupt in the course of Ms business, upon the ground chiefly that the sums retained were not sums certain to be paid by the bank to the bankrupt in all events, but only contingent claims, which might, or might not, end in becoming debts. (See also Cooke v. Hemming, L.R., 3 O.P. 334; 37 L.J., C.P. 179.) Shares in a company are not things in action within the clause {Ex parte Union Bank of Manchester, Be Jackson, L.R., 12 Eq. 354 ; 40 L. J., Bkcy. 57), and, therefore, pass to the trustee in bankruptcy as beiag within the reputed ownership of the bank- rupt in whose name they stand ; but a mere equitable in- terest in shares is a chose in action which, will not so pass. (Ex parte Barry, Re Fox, L.R., 17 Eq. 113 ; 43 L.J., Bkcy. 18.) Property held upon trust is, as a general rule, not property which can be ia the order and disposition of the bankrupt, with the consent of the true owner, and is, therefore, exempt from the doctrine, unless the trust were created unconscientiously, as for the ex- press purpose of conceahng the beneficial owner, or otherwise not bond fide. The cestui que trust may, indeed, so act as to render the possession of a bankrupt trustee the possession of a reputed owner within the clause {Ex parte Moore, 2 M., D. & D. 616 ; Ex parte Grainger, 24 L.T., N.S. 334), aswhere the cestui que trust himself creates the trust {Ex parte Bur- bridge, 1 Dea. 131 ; S.O., sub nom. ; Ex parte Watkins, 2 Mont. & A. 348), for which no bond fide purpose can be shown. If the purpose of the trust be accomplished, the doctrine applies. In Kitchen V. Ibbetson (L.E., 17 Eq. 46; 43 L.J.,_Ch. 52), the holders for value of an unregistered biU of sale of certain goods, supplied to an innkeeper for use in his business, allowed them to remain in the hands of his administratrix after his death. She continued the 56 WHEN BILLS OF SALE VOID business, and remained in possession of tlie goods for fifteen months, after taking out letters of adminis- tration, at the end of whicli time she became bankrupt. It was held that, although the debtor was in the first instance a trustee of the property as administratrix, when she carried on the business on her own account she dismissed the character of administratrix, and the goods then remained in her order and disposition, with the consent of the true owners. (See also Fox V. Fisher, 3 B. & Aid. 135 ; Ray v. Ray, G. Coop. 264 ; Re Thomas, 3 M., D. & D. 40.) In all cases, however, where the bankrupt holds in good faith in autre droit, whether as executor ( Vi/ner v. Oadell, 3 Esp. 88 ; Ex parte Ellis, 1 Atk. 101 ; Howard v. Jem/met, 3 Burr. 1369), administrator or trustee, in cases of pure trust, &c., the general rule, as above mentioned, is that property so held is exempt from the doctrine of reputed ownership. There " are, undoubtedly," said Lord Selbome, in Oreat Eastern Railway Company v. Turner (L.R., 8 Oh. App. 149), " cases in which an apparent exception is made to the general rule, that where there is a hand, fide trust the trustee does not hold the property in his order and disposition, with the consent of the true owner, or with such a repu- tation of ownership as to cause the property to be treated as his own in case of bankruptcy. But the principle of the exceptions in those instances, which I wUl assume for the present purpose to have been correctly made upon the facts of those particu- lar cases, is this, that, there being no bond fide re&soTi for the creation of any trust, the forms of a trust were gone through in order to conceal the true ownership of the property. That has been held to be, in truth, an abuse of the forms of a trust for the purpose of creating a reputation of ownership, and placmg the AGAINST TRUSTEKS IN BANKRUPTCY. 0/ property within the order and disposition of another, with the consent of the true owner of the property." It will, however, be sufficient, for the purposes of the present work, to state generally that all goods and chattels which can be made the subject of a bill of sale requiring registration (as to which see Chapter II.), will be affected by the doctrine of reputed ownership. (2.) That the hankrujpt, being a trader, vnust have had them in his possession, order, and disposition as reputed owner. — Actual possession on the part of the bankrupt is not necessary. If the goods are in the hands of a servant, or agent of, or carrier for, the bankrupt {Jackson v. Irvin, 2 Camp. 48 ; Hervey v. Liddiard, 1 Stark, 123 ; Ex parte Bolland, 24 L.T., N.S. 335 ; Ex parte Majorihanks, De Gr. 466), or in the possession of a third party, to whom the bankrupt has lent them, and who is bound to return them when required, they are in the bankrupt's order and dis- position. {Homsby v. Miller, 1 El. & El. 192.) Thus, a threshing machine, which has been let out on hire by the bankrupt, and at the time of his bankruptcy was in the possession of the hirer, was held to pass to his assignees. (lb.) But, on the other hand, goods in the possession of a mortgagee, pawnee or bailee, having a lien upon them, are not in the possession of the bankrupt, mortgagor, pawnor or bailor, so as to bring them within this clause [Oreening V. Clark, 4 B. & C. 316 ; Ex parte Arbouin, De Gr. 359 ; Webb v. Whinney, 18 L.T., N.S. 523 ; Ex parte Taylor, Mont. 240), on the ground that the person in possession, having a lien or security on the goods, is in respect thereof the true owner within the statute. (Ryall v. Rolle, 1 Atk. 165 ; 1 ^Yes. Sen. 348.) The cases under this head may be divided into two 58 WHEN BILLS OF SALE VOID classes : — (1.) Where the bankrupt was originally the owner of the goods and chattels left in his order or disposition — as, for instance, where goods are left with him after he has sold or mortgaged them to another person ; — (2.) Where the bankrupt was not originally owner of them, as where they are left with him for some special purpose, or in the course of his trade or business. The evidence required to establish reputed owner- ship in each of these cases is difEerent ; under the former class, when it is once proved that the bank- rupt was originally the owner, and has continued in possession until the commission of the act of bank- ruptcy, the presumption is, that he then continues in possession in the character of owner, and, therefore, proof of these facts is prvmd facie evidence that the bankrupt is both reputed and real owner. Tinder the latter class, the fact that the bankrupt is in possession of goods and chattels belonging to another person, wiU not, of itself, render them saleable by his trustee in bankruptcy, and, as the doctrine of reputed owner- ship is confined to those cases in which possession of the goods by the bankrupt is not justified by any bond fide purpose requiring him to have them under his control, the question will be in each case, are the circumstances under which the property is in the bankrupt's possession, order, or disposition, such as to lead to a fair and reasonable inference, amongst per- sons likely to have dealings with him, that he is the owner ? It is obvious, that the mere possession of the goods and chattels will not, in every case, answer this question in the affirmative, and then, it will be necessary for the trustee to establish the fact by other circumstances. Therefore, where the bankrupt, having been originally owner of the goods, has sold or mortgaged them, and yet remains in AGAINST TRUSTEES IN BANKRUPTCY. 69 possession of tliem without any apparent change, he will be presumed to have continued in possession as owner, u it be not shown by the purchaser or mort- gagee, as the case may be, not only that there was a change of ownership, but that the change of owner- ship has become notorious to the world ; unless, perhaps, in those cases where, from the nature of the business carried on by the person with whom the goods are left, it is not to be inferred that all the goods in his possession belong to him. {Hamilton v. Bell, 10 Ex. 545.) In that case, the plaintiff pur- chased some clocks of a London tradesman who kept a shop, in which were exposed for sale clocks and watches. A part of the tradesman's business was to clean and repair clocks, and such as were sent to him for that purpose stood amongst those in the shop which were for sale. The plaintiff left the clocks which he had purchased with the tradesman, with directions that they were to be sent to him when they had been cleaned and put in order. The tradesman some time afterwards became bankrupt, the plaintiff's clocks still remaining in his shop. In an action by the plaintiff against the assignees for taking these clocks, it was held that, under the circumstances, there was no evidence, either that the bankrupt was the reputed owner of the goods, or that they were in his possession, order, or disposition, within the meaning of the Act ; and, consequently, that the goods did not pass to the assignees. The presumption is, however, that all goods and chattels in the possession of the bankrupt, though not belonging to him, are, in the absence of explanation to the contrary, in his order and disposition as owner. So, if a tradesman sells goods out of his stock, but the vendee does not take them away, and they are not separated from the rest of the stock, before the tradesman becomes bankrupt, 60 WHEN BILLS OF SALE VOID the goods will pass to his trustee in bankruptcy {White Y. Wilks, 5 Taunt. 176), although the buyer may have paid the purchase money at the time of the transaction. {Thackthwaite v. Cock, 3 Taunt. 487.) But, if the facts are sucl^ that those who deal with the bankrupt may see and know that the goods may not be the property.of the bankrupt ; or if steps are taken to make the cha.nge of ownership sufficiently notorious, the trustee cannot claim the goods ; as where they are specifically appropriated by the vendor to the vendee's use, with his consent. Thus, wines sold by the bank- rupt, remaining in the bankrupt's cellars, set apart in a particular bin and marked with the purchaser's seal, a memorandum being given to the purchaser by the bankrupt, acknowledging the possession of it, and an entry to the same effect being made in the books of the latter, it was held that the wine was not in the order and disposition of the bankrupt ; for, under the circumstances, creditors could not be deceived by the appearance of its forming part of the stock to which they might give credit. {Ex pa/rte Marrable, 1 Gl. & Jam. 402.) It was, indeed, held in tbe well known case of Knowles v. Horsfall (5 B. & Aid. 134), that goods deposited in a warehouseman's stores, and remaining there after sale, in the vendor's name, wUl not be secured from his trustee, until the vendee has notified the change of ownership to the warehouseman, although it may be notorious to the persons carrying on business at the place that a sale to the purchaser has really taken place. But, speaking jof this case, in Hamilton v. Bell (10 Ex. 545), Alderson, B., said, " Knowles v. Horsfall was rather a conclusion which the court ought to draw from the facts, and I almost regret having reported it," and it has since been prac- tically overruled by the case of Hx parte Watkins. (L.R., 8 Ch. App. 520; 42 L.J., Bkcy. 50). There AGAINST TRUSTEES IN BANKRUPTCY. 61 is, of course, consideratle difference between goods re- maining in a warehouseman's stores in the vendor's name after sale, and furniture which, although the sub- ject of a bUl of sale, is left in the mortgagor's house ; yet, in both instances, the rule is apparently the same, that, in order to exclude the doctrine, the goods and chattels must not apparently form part of a stock to which persons may be induced to give credit. " The effect of the law is, that if the true owner of goods and chattels permits another person to have them in his possession as reputed owner, he must suffer this consequence, that, in case of bankruptcy, the goods will pass to the assignee " (Freshney v. Wells, 26 L.J., Ex. 129, per Martin, B.) ; and so, the mere hand- ing over to a mortgagee of the key of a house of the mortgagor's in which famiture, the subject of the mortgage, was kept, has been held not to be sufficient to take the furniture out of the order and disposition of the mortgagor. {JEx parte Staner, Re Body, 33 L.T. 244.) It wiUbe perceived that the clause does not apply to cases where the possession is in the ordinary course of business, and where it cannot reasonably induce persons to give credit, as in the case of factors {Ex parte Boden, Me Wood, 28 L.T., N.S. 174), bankers, brokers, and others similarly situated, who hold possession of other men's goods simply as trustees, or under a bare authority to sell. Such goods are, on the same principle, entitled to the same privileges as trust property. (Mace v. Cadell, Cowp. 233 ; Copeman v. Gallant, 1 P.W. 314 ; Taylor v. Plumer, 3 M. & S. 562 ; Scott v. Surman, Willes, 400 ; Ex parte Bayers, 5 Ves. 169.) Where, there- fore, a bankrupt is in possession of the goods of another, bona fide, with the consent of the true owner, at the time of the bankruptcy, for a specific purpose, beyond which he has not the right of disposition or 62 WHEN BILLS OF SALE VOID alteration, such possession does not entitle the trustee to recoTer the value of them. {Collins v. Forbes, 3 T.E. 316.) On this principle was decided the case ,of Whitfield v. Brand (16 M. & W. 282), where the court held that books left in the hands of a book- seller to be sold by him, in the ordinary course of .trade, did not pass to his assignees, it being notorious that books are left with publishers or others, in large quantities, to be sold on account of the person who leaves them. The bookseller is in such a case in the position of a factor or trustee. (See also Ex parte Greenwood, 6 L.T., N.S. 558.) Where a custom exists for the buyer to leave goods bought in the hands of the seller, and is so notorious as to be practically known to aU persons dealing with the seller in his business, goods so left in the hands of the seller for a time not longer than is clearly within the custom, do not, on the bankruptcy of the seller, pass to his trustee. {Priestley v. Pratt, L.R., 2 Ex. 101.) Precisely in accord with the last mentioned case was the decision in JEx parte Watkins, Re Pouston (L.E., 8 Ch. App. 520 ; 42 L.J., Bkcy. 50), where the Court of Appeal held that a custom notorious among all the persons concerned in a particu- lar trade, but unknown to the rest of the world, was sufficient to exclude a reputation of ownership arising from the possession of goods. The head-note of that case is as follows : — At the time of the presentation of a petition for liquidation by arrangement, there were iymg in the bonded warehouse of the debtors, who were wine and spirit merchants in Liverpool, certain butts of whiskey which they had sold to the appellant. The goods were left there for the convenience of the purchaser, to whom a delivery order had been given by the vendors, in which they stated that they held the goods to his order as warehousemen. The vendors AGAINST TRUSTEES IN BANKRUPTCY. 63 did not carry on business as general warehousemen, but it was proved to be the usual custom in the wine and spirit trade in Liverpool for goods sold in bond to remain ia the possession, or under the control of the vendors, in the bonded warehouse in which they were at the time of sale, until they were required by the purchaser for use. Held, reversing the decision of the Chief Judge, that the existence of a custom of this nature, shown to be well known among persons concerned in the wine and spirit trade, excluded the doctrine of reputed ownership, and that the goods did not pass to the trustee. The same principle applies whether the goods remain in the bonded warehouse of the vendors, as in Ex parte Watkins, Be Couston, just cited, or in the bonded warehouse of a third person in the name of the vendors. {Ux parte Vaux, Re Couston, L.R., 9 Ch. App. 602 ; 43 L.J._, Bkcy. 113.) Although these two cases show that it is "enough to prove the custom of the particular trade, because the creditors of a trader are mostly persons engaged in the same trade, or bankers, or other persons, who are acquainted with the custom of that particular trade " {ib., per Mellish, L.J.), it seems that the custom must be " weU proved, and shown to be known, not only to persons in the same trade, but to others who were likely to be creditors" (Ee Hill, L.E,., 1 Oh. D. 503, per Mellish, L.J.), and to have been so extensively acted upon that the ordinary creditors of the debtor in his trade may be reasonably presumed to have known it. {Ex parte Powell, Re Matthews, L.R., 1 Ch. D. 501.) It must farther be observed that the cases of Ex parte Watkins and Ex parte Vaux {ubi sup.) do not in any degree weaken the authority of those cases which have decided that a custom of trade, however notorious in respect of a- parti- g2 64 WHEN BILLS OF SALE VOID cular class of goods, will not exclude the operation of the order and disposition clause where the surround- ing circumstances show that there was an intentioiito continue the reputation of ownership in the bankrupt. Thus, although the doctrine of reputed ownership does not apply in an ordinary case to hired furniture (MuUetty. Green, 8 C. & P. 382 ; Ex parte Emerson, Re Hawkins, 41 L.J., Bkcy. 20), yet, if there were an intention to deceive, if the circumstances show a consent to the reputation of ownership, then the clause will apply. Thus, in Ex parte Lovering, Be Jones (L.E., 9 Ch. App. 621 ; 43 L.J., Bkcy. 116), a draper, in July, 1869, sold all his furniture to a furniture dealer for £192, and hired it hack from him for 12s. 6d. per week. Under this agreement he remained in the use and occupation of the furniture until November, 1873, when, having filed his petition for liquidation, the court held that the furniture passed to his trustee, as having been in the order and disposition of the debtor as reputed owner. The general principle to be drawn from this and similar cases is clear. Prima facie possession affords a pre- sumption of ownership, which is obviously stronger in those cases where the bankrupt has been the original owner of the goods. In all cases, however, this pre- sumption may be rebutted by evidence ; and proof of the notoriety of a trade custom, either by reported cases, or by evidence of the custom as on a question of fact, is then very material ; but the custom must be sufficiently proved. In Ex parte Powell, Re Matthews (L.R., 1 Ch. D. 501), the Chief Judge in Bank- ruptcy held that the custom of hiring furniture had been proved so often that the court ought now to take judicial notice of it ; but the Court of Appeal thought otherwise, and offered to aUow the trustee to try an issue as to the custom. There is no doubt, AGAINST TRUSTEES IN BANKRUPTCY. 6j5 however, that a custom may be so frequently proved tliat tlie courts mil take judicial notice of it, but tbe cases must not be few in number or contradictory. There are many instances of particular trades in wbicli a custom has been successfully set up, as, for instance, among coacbbuilders. Thus, a carriage finished and paid for before the bankruptcy of themaker,butsu£Eered to remain on his premises at the request of the owner, on account of his being abroad, was held not to be in the order and disposition of the bankrupt, so as to pass to his assignees in bankruptcy, although such bankrupt put it in his front shop and actually sold it to another. " We all know," said Mr. Justice Gaselee, who tried the case, " and it has been proved in the cause, that it is customary for coachmakers to keep carriages after they are made, and to put them in a front shop, for the purpose of display, to show what kind of carnages they make, and what description of customers they have. Under these circumstances, I am clearly of opinion that this is not a case within the meaning of the Act of Parliament." (Bartram v. Payne, 3 0. & P. 175 ; Carruthers v. Payne, 5 Bing. 270.) So also with clockmakers (Hamilton v. Bell, 10 Ex. 545, cited ante, p. 59), booksellers {Whitfield V. Brand, 16 M. & W. 282 ; Ex parte Greenwood, 6 L.T., !N".S. 558, ante, p. 62), wine merchants {Ex parte Marrahle, 1 Gl. & J. 402 ; Ex parte Watkins, Re Gouston, L.R., 8 Oh. App. 520 ; 42 L.J., Bkcy. 50 ; Ex parte Vaux, Re Gouston, L.B,., 9 Ch. App. 602; 43 L.J., Bkcy. 113, see ante, p. 63), and farmers. (See Ex parte Vidler, Re Terry, 11 W.R. 113.) In the last cited case, where produce had been purchased and the price paid before the bankruptcy, it appeared to be the custom of farmers to leave such produce upon the farm of the vendor, until it suited the convenience of the vendee to carry it away, and >66 WHEN BILLS OF SALE VOID it was held tliat tMs custom exempted such produce from passing to the trustee in the bankruptcy under ■the doctrine of reputed ownership. We have seen also {ante, p. 64) that the custom has heen success- fully proved in the case of furniture dealers and -upholsterers. Thus, in one case an hotelkeeper furnished an hotel at Eichmond, partly with goods he had purchased, and partly with goods which he had hired at a yearly rent, which latter goods were in the hotel at the time he became bankrupt, and were taken possession of by his assignees, but, it being proved that upholsterers were accustomed to let furni- ture out on hire to hotelkeepers and others, and that ■the custom of hotelkeepers was to hire a part of the furniture in their hotels, the court held that the hired furniture was not in the order and disposition of the bankrupt. (Mullett v. Green, 8 C. & P. 382 ; Ex parte Emerson, Re Eawhms, 41 L. J., Bkcy. 20; see also Ex parte Powell, Re Matthews, L.E., 1 Ch, D. 501 ; Ex parte Lovermg, Re Jones, L.E., 9 Ch. App. 621 ; 43 L.J., Bkcy. 116.) It is clear that the occupation of furnished houses or lodgiugs affords no ground for presuming ownership of the iumiture in the occupier (Lingham v. Biggs, 1 Bos. & P. 88) ; and it is submitted that pianofortes, which are so frequently and notoriously the subject of agreements, either for hire simply, or on the " hire and purchase system," for that very reason afford no presumption of ownership. The same doctrine was held in a case, where it was the custom in the bankrupt's busiuess to use hired horses and carts — so the mere temporary possession of a chaise by an innkeeper, was held not to amount to reputed ownership. {Ex parte Wiggins, 2 D. & C. 269.) And if a ship, in course of construction, is in the yard of a shipbuilder, or goods are in process of manufacture, such ship or goods, if purchased, are AGAINST TRUSTEES IN BANKRUPTCY. 67 not in the order and disposition of such shipbuilder or manufacturer. (Woods r. Russell, 5 B. & Aid. 942 ; Holdemess v. Rankin, 28 Beay. 180 ; and see also Swainston v. Clay, 4 Giff. 187.) So, where a person adyanced money on a vessel in course of construction, and took an assignment of such ship by way of mortgage to secure the repayment of the advance, it was held that the mortgage was good as against the trustee in bankruptcy of the shipbuilder. The reputation of ownership, therefore, varies considerably according to the usages of society, and the custom of a trade or locality, which may often take a particular case out of the rule of reputed ownership altogether, for it is obvious that if, from custom, the possession of a certain class of chattels does not imply the ownership of them, the possessor does not obtain a false credit by being in possession, which is reaUy the mischief against which the doctrine is levelled. And, as we have seen (ante, p. 62), it is not necessary that the custom should be known to the public at large, so long as it is so general and notorious in the trade which the bankrupt carried on, that those who did business with him, might, in the exercise of business-hke caution, be reasonably induced to inquire before giving him credit whether the goods were reaUy his own or not. (Watson v. Peache, 1 Bing., N.C. 327.) But, in all these cases depending upon the usages of trade, or the custom of the locality or country, the usage or custom must be proved. And it would seem from the decision in Ecu. parte Powell, Re Matthews (L.E.., 1 Ch. D. 501), very unsafe to be unprepared with evidence of a custom other than that contained in reported cases; for certainly no custom, excludingthe doctrine, has been proved so often as that of luring furniture. In Ashton v. Blackshaw 68 WHEN BILLS OF SALE VOID (L.R, 9 Eq. 517), Vice-Chancellor Malins said : " Therefore, as the law now is, you are not necessarily to assume that A.B., being in possession of a well famished house, is the owner of that furniture j it may he that he hires it only, or it may be that it was his, and has ceased to be his by assign- ment. If he is once known to be the owner of the property, then a person is entitled to treat him as still the owner, unless there be some deed registered which shows that the ownership has changed. If, therefore, he sells the property, the purchaser must take posses- sion as soon as circumstances permit ; and if, mstead of taking possession, he allows the seller to remain in possession, then the property passes to the assignees." The courts seem at one period to have inclined to the view, that the doctrine of reputed ownership applied only where the possession of the bankrupt was purely permissive, so that his ownership was merely apparent; and that, where he was in possession, by which he was the true, though only limited owner, the doctrine did not apply, and, that the trustees would take no more than the limited interest vested in the bankrupt. (Fenn v. Bittleston, 7 Ex. 152.) And upon this principle it was concluded that, where a person mortgages personal chattels by a deed so framed that he takes under it an interest in the chattels so mortgaged for a term determinable upon his default ia payment, this limited interest saves him from being merely reputed owner, and, by pre- venting his bankruptcy from passing anjrthmg more than the transient and defeasible interest vested in him, in effect gives a complete protection to the mortgagee. But this view has now been overruled (Spackman v. Miller, 12 C.B., N.S. 659 ; 31 L.J., C.P. 309) ; and, ia the case of chattels which have been sold, and then leased by the purchaser to the AGAINST TRtrSTEES IN BANKRUPTCY, ' 69 seller, where the latter continues in possession until his hankruptcy, it may now be said that he will he considered to have continued in possession as owner till that time, unless it can be shown, not only that there was a change of ownership, but, where the possession was such as might induce others to treat the bankrupt as real owner, that the alleged change of ownership had become notorious to the world. In a noted case, where certain articles of machinery had, long before the bankruptcy, been seized by the sheriff, under an execution, at the suit of a creditor to whom they were sold at a public sale, and conveyed by bill of sale, and who marked them all with his initials, and afterwards leased them to the bankrupt, who continued in possession tUl his bankruptcy, it was held that this was no evidence of the notoriety of the change of property, and, consequently, that there was no evidence to go to the jury that the bankrupt had ever ceased to be the reputed owner (Lingard v. Messiter, 1 B. & C. 308), Best, J., remarking that " if the machinery had been let to a person who had never been the owner, and he had become bankrupt, it would have been for the plaintiff to show, not only that the bankrupt was ia possession, but, that he was in possession under such circumstances as might fairly induce others to think and treat him as real owner " (and see also Li/ngham v. Biggs, 1 Bos. & P. 82) ; but the Chief Baron Pollock, commenting upon this case (in Homiilton v. Bell, 10 Ex. 545), said : " The case of Lingard v. Messiter affords a very good example of what might result from such a change of circumstances. At the time when that case was decided, it is possible that the jury were fully justified in their verdict, and, that the court was right in upholding that verdict, but if the same question were to arise at the present day, such a decision might be 70 WHEN BILLS OP SALE VOID altogether incorrect, for it is now notorious that persons using machinery frequently hire it, and, consequently, there is no presumption that machinery found on a manufacturer's premises belongs to him." Both Lingha/my. Biggs and Lvngard v. Messiter have recently been recognized and followed in Ex parte Lovering, Re Jones (L.E., 9 Ch. App. 621 ; 43 L. J., Bkcy. 116), where it was recognized that " the doctrine laid down in those cases may be countervailed by evidence of any known custom and practice in the particular trade in question, known to the dealers in that trade and known to the bankers and other persons accustomed to have dealings with persons in that trade." (iZ>., per- James, L.J.) It seems, therefore, clear, that where by the custom of the country, or the usages of the trade, it is a common practice to grant Or take leases of moveable chattels, they will not pass to the trustee in bankruptcy of the lessee by simply being in his possession at the date of the bankruptcy. Thus, machinery affixed to the freehold of ironworks is not considered to be in the order and disposition of the bankrupt trader, where, by the custom of the country, when ironworks are let, such articles are furnished by and continue to be the property of the lessor. {Ruford v. Bishop, 5 E,uss. 346.) The reputed ownership clause applies only to cases where goods are in the sole possession, order, or dis- position of the bankrupt, so that, where two persons, L. and C, who was an infant, carried on the business of printers in partnership, holding the business premises under a lease to them both, by which some type was also demised to them, and L. alone was made bankrupt, it was held that this type, which was at the commencement of L.'s banlnniptcy on the business premises, did not pass to the trustee under L.'s bankruptcy, being in the joint possession of L. and AGAINST TRUSTEES IN BANKRUPTCY. 71 C. {Ex parte Dorman, Be Lake, L.R., 8 Oh. App. 51 ; 42 L. J., Bkcy. 20.) Goods on the premises of a bankrupt at tlie time of his committing an act of bankruptcy are not in the possession, order, and disposition of the bankrupt, if at the date of the act of bankruptcy they are legally in the possession of the law. As, for instance, where they have been seized for rent [Sackerr v. Ohidley, 13 "W.R. 690), or by the officers of excise under a claim for duty (per Pollock, O.B., ib.), or, where the sheriff has seized them under an execution issued by a creditor. {Ex parte Foss, 2 De Gr. & Jo. 230 ; see also Fletcher v. Manning, 12 M. & W. 671.) But a wrongful seizure wiU not remove the goods from the possession of the reputed owner. {Barrow T. Bell, 5 E. & B. 540.) Thus, in a recent case, A., on the 2nd May, gave a bUl of sale of chattels which was afterwards didy registered. The mortgagee did not demand possession of the goods until the 15th June. The goods had been seized on the 5th June by the sheriff under an execution issued by another creditor, and on the 13th June the debtor had filed a liquidation petition. The sheriff remained in possession till the 20th June. It was held that the sheriff's possession being wrongful, as against the mortgagee, did not prevent the goods from being in the order or disposition of the debtor at the com- mencement of the liquidation, and that they conse^i quently passed to the trustee. {Ex parte Edey, Re Uuthbertson, L.R., 19 Eq.264; 44 L.J., Bkcy. 55.) As to " possession " and " apparent possession " •within the BiEs of Sale Act (17 & 18 Yict., c. 36), see post, Chapter VII. (3.) That he Tnust so have had them with the con- sent of the true owner. — " In order to bring a case within the statute," said Parke, B., " there must be i>i WHEN BILLS OF SALE VOID a real owner, distinct from an apparent owner, and the real owner must consent to the apparent owner- . ship as such." {Load v. Green, 15 M. & W. 223 ; Hamilton v. Bell, 10 Ex. 545 ; Reynolds v. Bowley, L.R., 2 Q.B. 41 ; S.C, Ex. Ch., ib. 474 ; 36 L.J., Q-B. 1 ; S.C, Ex. Ch., 46. 247.) Upon this ground it was held that where one partner allowed the other bona fide to carry on the husiness ostensibly as his own, on the bankruptcy of the latter the share of the dormant partner in the partnership stock in trade could not be dealt with under this section [Reynolds V. Bowley, vhi sup.), the majority of the court hold- ing that the bankrupt and the dormant partner, having an equal right to possession as joint owners, the consent of the dormant partner was not to be inferred. This decision, whilst af&rming Joy v. Campbell (1 Soh. & L. 336) and Ooldnjoell v. Gregory (1 Price, 119), overruled Ex pwrte Enderhy (2 B. & C. 389), Smith v. Watson {ib. 407), Ex parte Jennings (Mont. 46), and other cases which decided that partnership property is, as against the dormant partner, in the reputed ownership of the ostensible partner, who is necessarily the apparent pro- prietor. But it is worthy of note, that Willes, J., and Bramwell, B., concurred in the decision inReynolds v. Bowley {ubi sup.), without, however, overruling any case, preferring to base their judgments upon the eame ground as that upon which Ex parte Dorman, Re Lake (L.E,., 8 Ch. App. 51 ; 42 L. J., Bkcy. 20), was a,ffcerwards decided, i.e., that there must be sole posses- sion, which was not the case in Reynolds v. Bowley, Moreover, it would seem that the converse of the poiat- diecideimExparteEnderbywash.eldiiD.ExparteHare. (1 Dea, 16.) There, one partner allowed his own private furniture to be used as if it were partnership property (he himself retaining no possession, except as a member AGAINST TRUSTEES IN BANKRUPTCY. 73 of the firm), aad it was held to pass to the assignees of the joiat estate. Generally, therefore, where one partner becomes bankrupt, property belonging to the firm, but held by him for the necessary purposes of the business, is not in his reputed owner- ship, so as to pass to his trustee on his bankruptcy {Ryall T. Rolle, 1 Atk. 165 ; Ex parte Flyn, 1 Atk. 185 ; Ex parte Vardon, 2 M., D. & D. 694), for he is as much the true owner of such property as his partner. In like manner, joint property remaining, after the dissolution of the partnership, in the hands of one of the partners, for the mere purpose of winding-up the business, will not pass to his trustee if he should become bankrupt, for he is but a trustee for the other partners (Ex parte Williams, 11 Yes. 3 ; West v. Skip, 1 Ves. Sen. 242 ; Gopeman t. Gallant, 1 P.W. 314) ; and where, upon the death of a dormant partner, the ostensible partner administers the assets of the firm, the doctrine of reputed ownership does not apply. {Brett T. Beokwith, 3 Jur., N.S. 31.) As the real owner must consent to the apparent ownership as such, goods and chattels which, at the time of the commis- sion of an act of bankruptcy by a trader, are in his order and disposition, in fraud of, or against, or with- out the will of the true owner, are not within either the words or the spirit of the reputed ownership clause. But there may be a constructive or implied, as well as an express consent, which wiU satisfy the statute. The true owner's interest may be a legal and equitable, or a merely equitable interest, such as that of an equitable mortgage. {Ex parte Union Bank of Man- chester, Re Jackson, L.R., 12 Eq. 354 ; 40 L.J., Bkcy. 57.) The true owner within the meaning of the Act is the purchaser or mortgagee, and the tru6 owner, to give consent, must have a capacity for doing so ; H 74 WHEN BILLS OF SALE VOID hence, the property of an infant is not ■within the statute, he not being capable of " consenting." (Virier v. Gadell, 3 Esp. 88.) "Where goods are transferred into the bankrupt's possession or dealt ■with by him, -without the knowledge of the true o^wner, the absence of permission and consent on the part of the real owner, ■wiU, of course, be implied, as if a carrier receives notice from the vendor to stop them in transitu, and yet delivers them by mistake to the vendee, who becomes bankrupt while they are in his possession, the goods are not in the order and disposition of the bankrupt, with the consent of the true owner. (Townley v. Crump, 5 N ev. & M. 606.) And so, where the mortgagor in possession of a coal mine, machinery, barges, &c., leased them to a third party, who took possession, and put his own name on the barges, and subsequently became bank- rupt, it was held that the barges were not in the bankrupt's possession, by consent of the true owner (the mortgagee), since the mortgagor was in possession merely on sufferance, and his consent did not satisfy the terms of the statute. {Eraser v. The Swamsea Canal Company, 1 Ad. & El. 354.) No consent of the true o'wner can be implied where such owner is ignorant of the existence of the property, or of his own right to it. (Re Rawbone's Trust, 5 W.R. 796 ; 3 K. & J. 476 ; and see Ex parte Ford, Re Caughey, L.R., 1 Ch. D. 521 ; 45 L.J., Bkey. 19.) Where a trader executed a bill of sale of all his effects to the defendant, an auctioneer, who, shortly afterwards, by arrangement, entered the premises of the trader and endeavoured, inefectually, to sell the goods by auction, and afterwards left the trader in possession until he committed an act of bankruptcy, it was held that, notwithstanding the attempted sale, the goods were in the possession of the bankrupt as AGAINST TRUSTEES IN BANKRUPTCY. 75 reputed owner, witli the consent of the true owner, at the time of bankruptcy, and, therefore, passed to his assignees. {Reynolds t. Hall, 4 H. & N. 519.) But in that case, although the sale had been adver- tised, it did not appear that the goods were advertised to be sold as the goods of the defendant. Should the true owner in due time, and in good faith, demand the possession of his goods, his demand, though not complied with, is sufficient indication that he has withdrawn his consent to the possession of the goods by the reputed owner. (Smith v. Topping, 2 Nev. & M. -421 ; Ex parte Ward, Re Couston, L.R., 8 Ch. App. 144 ; 42 L. J., Bkcy. 17 ; Ux parte Montague, Re O'Brien, L.E., 1 Ch. D. 554 ; 24 W.H. 309.) But a mere intention or threat on the part of the true owner to take possession will not be sufficient to pre- vent the goods being, with his consent, in the reputed ownership of the bankrupt. {Spackman v. Miller, 12 C.B., N.S. 659 ; Hornsby v. Miller, 28 L. J., Q.B. 99 ; 1 El. & El. 192. ) Indeed, it is a general rule that, if the true owner be not guilty of neglect or imprudence, but does all in his power to prevent the goods from remain- ing in the bankrupt's possession, they will not pass to the trustee in bankruptcy. (Ux parte Harris, Re Pulling, L.R., 8 Ch. App. 50 ; 42 L. J., Bkcy. 9 ; Ex parte North Western Bank, Re Slee, L.E., 15 Eq. 69 ; 42 L. J., Bkcy. 6.) So, if the bankrupt have obtained goods, under such circumstances of fraud as would justify the vendor in rescinding the contract ; or if goods, once properly appropriated to the use of the purchaser, have been afterwards, unknown to him, re- mixed with the rest of the bankrupt's stock, such goods will, in neither instance, be deemed in the bankrupt's possession, with the consent of the true owner. (4.) That he must so have had them at the tvme he became bankrupt. — By this, is meant the time of the h2 76 WHEN BILLS OF SALE VOID committing of an act of bankruptcy capable of sup- porting the adjudication,' though such act be prior to the act on which the adjudication is founded. The definition of the commencement of bankruptcy is contained in the 11th section of the Act, which is as follows : — " The bankruptcy of a debtor shaU be deemed to have relation back to, and to commence at the time of the act of bankruptcy being completed, on which the order is made adjudging him to be bankrupt ; or, if the bankrupt is proved to have coinmitted more acts of bankruptcy than one, to have relation back to, and to commence at the time of the first of the acts of bankruptcy that may be proved to have been com- mitted by the bankrupt within twelve months next preceding the order of adjudication ; but the bank- ruptcy shall not relate to any prior act of bankruptcy unless it be that, at the time of committing such prior act, the bankrupt was indebted to some creditor or creditors in a sum or sums sufficient to support a petition in bankruptcy, and unless such debt or debts are still remaining due at the time of the adjudica- tion." (32 & 33 Vict., c. 71, s. 11.) The title of the trustee in a liquidation by arrangement relates back to an act of bankruptcy committed by the debtor before the filing of the petition in the same way as that of a trustee in a bankruptcy. {Ex parte Eyles, Re Edwards, L.R., 16 Eq. 99 ; 42 L.J., Bkcy. 55.) The act of bankruptcy, which results from the failure to comply with a debtor's summons, is completed imme- diately upon such failure. (Ex 'parte Hanhm, Re Buchan, L.R., 10 Ch. App. 267; 44 L.J., Bkcy. 74.) In the next Chapter acts of bankruptcy within the scope of the present work will be treated of more fully. The statute does not, therefore, apply where the goods came into the possession of the bankrupt after AGAINST TKUSTEBS IN BANKRUPTCY. 77 the date of his hankruptcy. {Lyon v. Weldon, 2 Bing. 334.) Goods left with a trader "upon sale or return " are vdthin his possession, order, and dis- position, and pass to his trustee {Livesay y. Hood, 2 Camp. 83) ; hut a buyer has a reasonable ,tiaie to choose from goods sent him upon such terms, so that, where goods were thus sent to a buyer who com- mitted an act of bankruptcy the day after their arrival, and before the goods had been even un- packed, it was held that they did not pass to the bankrupt's assignees. {Oihson v. Bray, 1 Moore, 519.) But, it seems, the decision would have been otherwise, had he kept them so long as to furnish an inference of his election to take them. A fraudulent removal of goods, in contemplation of bankruptcy, wiU not alter the possession, but otherwise. If the true owner can get possession of his goods at any time before the commission of the act of bank- ruptcy by the reputed owner, the trustee in bank- ruptcy win not be enabled to disturb his possession. (Hamilton v. Bell, 10 Ex. 545.) But it has been held that a removal on the same day, but before the act of bankruptcy, will not take the case out of the statute. {Arbouin v. Williams, Ry. & M. 72.) This case seems, however, to need approval. If, on an execution, the sheriff seizes goods of which the debtor is only reputed owner, a question some- times arises as to the effect of the seizure. If, after a formal seizure, a man is left in possession of the goods, but the trader is still allowed to use them, and so to carry on his business for a considerable time, the better opinion would appear to be, that there is no alteration in the reputed ownership, and that the trustee in bankruptcy would be entitled to recover. But it has been decided that, where the execution is conducted in the ordinary way of adverse 78 WHEN BILLS OF SALE VOID levies, such a seizure withdraws the goods from the order and disposition of the reputed owner {Ex 'parte Foss, 2 De Gr. & Jo. 230) ; and m Fletcher v. Manning (12 M. & W. 581), Lord Wensleydale said that, " unless " the goods " were at the time of the act of bankruptcy in the possession and apparent ownership of the bankrupt, the assignees could not recover ia that respect, and as they were seized by, and ia the custody of, the sheriff at that time, it is very difficult to say that the bankrupt was then the apparent owner, if the execution was conducted in the ordinary way that an adverse execution is." The effect of removing goods from the order and disposition of a bankrupt, after he has committed an act of bankruptcy, turns on the bond fides of their owner, and on his knowledge or ignorance of the act of bankruptcy ; consequently, although the grantee of abill of sale may have inadvertentiy allowed the goods and chattels thereia comprised to remain, with his consent, in the order and disposition of the grantor, a trader, at the time of his committing an act of bankruptcy, yet, if the grantee afterwards, bona fide, and without notice of such act of bankruptcy, takes possession under his bill of sale, the property will be protected from the claim of the trustee under section 94, sub-section 3, of the Bankruptcy Act of 1869. There are, moreover, other cases ia which, where the claims conflict, the creditor's rights wiU be protected as against the debtor's trustee under section 95, and it is therefore important to biUs of sale holders to consider' the effect of the material parts of both sections. Section 94, sub-section 3, enacts that : — " Nothing in this Act contained shall render invalid any contract or dealing with any bankrupt, made in good faith and for valuable consideration, AGAINST TKTJSTEES IN BANKRUPTCY. 79 before the date of the order of adjudication by a person not having, at the time of making such contract or dealing, notice of any act of bankruptcy committed by the bankrupt and available against him for adjudication." Section 95. " Subject and mthout prejudice to the provisions of this Act, relating to the proceeds of the sale and seizure of goods of a trader, and to the provisions of this Act avoiding certain settlements, and avoiding, on the ground of their constituting fraudulent preferences, certain conveyances, charges, payments and judicial proceedings, the following transactions'by and in relation to the property of a bankrupt shall be valid, notwithstanding any prior act of bankruptcy ": — . Sub-section (I.) "Any disposition or contract with respect to the disposition of property by conveyance, transfer, charge, delivery of goods, payment of money, or otherwise howsoever, made by any bankrupt in good faith, and for valuable considera- tion, before the date of the order of adjudication, with any person not having at the time of the making of such disposition of property notice of any act of bankruptcy committed by the bankrupt, and available against hi'm for adjudication." Sub-section (III.) " Any execution or attachment against the goods of any bankrupt, executed in good faith by seizure and sale before the date of the order of adjudication, if the person on whose account such execution or attachment was issued had not, at the time of the same being executed by seizure and sale, notice of any act of bank- ruptcy committed by the -bankrupt, and available against him for adjudication." These enactments are not very different to those contained in the Act of 1849. The meaning of sub- 80 WHEN BILLS OF SALE VOID section 3 of section 94 above set out is, in effect, the same as tliat of section 133 of the former Act (12 and 13 Vict., c. 106), notwithstanding that the word " transaction " is omitted in the existing enactment. (In re Wright, Ex parte Arnold, L.R., 3 Gh. D. 70 ; 24 W.R. 977.) For the word " dealing " has almost as e::?tensive a meaning as the word "transaction," and is sufficient for the protection of bills of sale holders, for taking possession under a hiU of sale is a " dealing " within this clause {In re Wright, Ex parte Arnold, supra ; Graham, v. Furber, 14 C.B. 134 ; Ex parte Bedfem, 19 W.R. 1058), as is, indeed, even a bond fide demand of possession, "^hich, as we have seen, is also enough to withdraw the goods from the reputed ownership of the debtor. (Ante, p. 75.) " If," said Lord Campbell, C. J., in Brewvn, v. Short (5 E. & B. 237 ; 24 L. J., Q.B. 297), " before the date of the fiat, and before notice of an act of bank- ruptcy, the true owner had bond fide demanded possession of his goods and, communicating with the bankrupt, had done that which would show that the goods did not longer, with his consent and permission, remain in the possession, order, and disposition of the bankrupt, we should hold that the title of the true owner would not be defeated by a prior secret act of bankruptcy; but a mere intention to demand the goods and to get possession of them, we hold not to be a dealing or transaction within the meaning' of this section of the Act of Parliament." (See also Ex parte Montagu, Re O'Brien, L.R., 1 Ch. D. 554 ; 24 W.R. 309.) A seizure of goods under an irrevoca- ble licence to seize them is also a protected transaction within this clause. (Krehl v. Great Central Gas Company, L.R., 5 Ex. 289 ; 39 L. J., Ex. 197.) But a claim made by the true owner, Dorman, to the sheriff for goods seized under an execution against AGAINST TRUSTEES IN BANKRUPTCY. 81 the debtor, who subsequently became bankrupt, was held not protected under section 94, sub-section 3. {Ex parte Dorman, Re Lake, L.R., 8 Ch. App. 51 ; 42 L. J., Bkcy. 20.) But a most material alteration between these sections, and the provisions of the Act of 1849, is that which now makes everything to turn upon the date of the order of adjudication, instead of, as formerly, the date of the petition for adjudication ; the notice now required to avoid the transactions affected by these sections, being notice of such an act of bankruptcy only as would have been available against the bankrupt for adjudication. Such an act must be followed by an adjudication within six months. (32 & 33 Yiot., c. 71, s. 6.) It would seem therefore, that .any transaction specified in sections 94 and 95, entered into after the lapse of six months from the last act of bankruptcy, no order of adjudication having followed thereon, will be protected, notwith- standing notice of any number of prior acts of bank- ruptcy with which the creditor may be affected. But under section 11 (ante, p. 76) the bankruptcy may relate back to any act of bankruptcy committed within the period of twelve months, so that the above con- struction cannot be relied upon as correct until settled by authority. Notice of an intention to commit an act of bank- ruptcy is not notice of an act of bankruptcy {Ex parte Hallifax, 2 M., D. & D. 544 ; Ex parte Robinson, 32 L.T. 230 ; Brewvn v. Short, 6 E. & B. 237 ; 24 L. J., Q.B. 297; Conway v. Nail, 1 C.B. 643); so, that a creditor receiving such a notice is entitled to avail himself of his remedies just as if he had not received it. Thus, in a recent case {In re Wright, Ex parte Arnold, L.R., 3 Ch. D. 70 ; 24 "W.R. 977), the holder of a bill of sale, given to secure a debt, received notice on the 10th March, 1876, from the debtor's solicitor that the 82 -WTIEN BILLS OF SALE VOID debtor was about to file a liquidation petition. The creditor at once sent a man to demand payment of the debt, and to take possession of tbe property comprised in the bill of sale if payment were notmade. Possession was obtained on the 11th of March. The petition had been filed on the 10th of March, but neither the creditor nor the man who was sent to take possession knew this until after possession had been obtained ; and the Court of Appeal (reversing the decision of Bacon, C.J. Bkcy.) held that the taking possession of the property was a dealing with the debtor for valuable consideration which was protected by section 94, sub-section 3. (32 & 33 Vict., c. 71.) Butthe pro- tection granted by this section is expressly limited to cases where the " contract or dealing " is " made in . good faith and for valuable consideration," as well as without notice of any act of bankruptcy ; therefore, it should be noticed that, in the case above cited, the letter of the solicitor, announcing that the debtor was about to file a liquidation petition (which, if meaning a warning to the creditor to take possession, would have imperilled the transaction), was expressly found by the court, after taking evidence, to have been sent bona fide. " If it had been sent with the express intention of giving warning to the creditor to come and take possession, I am disposed to think that the transaction would not have been in good faith." {Per MeUish, L.J., In re Wnght, Ex -parte Arnold, L.R., 3 Ch. D. 70 ; 24 W.R. 977.) The notice need not be express or formal, or specify anyparticular act of bankruptcy (yitrne7'v..ffaj'ci!casife, 11 C.B., N.S. 683), general notice that the party has actually committed an act of bankruptcy being sufficient. ( Udal\. Walton, 14 M. & "W. 254,) But it ought not to leave room for doubt by simply stating circumstances which may or may not amount to an AGAINST TRUSTEES IN BANKRUPTCY. 83 act of bankmptoy. {Evans t. Hallam, L.R., 6 Q.B. 713 ; 40 L.J., Q.B. 229.) The general rule was thus laid down in Hope v. Meek (10 Ex. 829 ; 25 L.J., Ex. 11) : " When an act of bankruptcy has been in fact committed, any communication which brings to the knowledge of the creditor, before the sale, the alleged fact that an act of bankruptcy has been com- mitted, in any way which ought to induce him as a reasonable man to believe that the notification was true, is, in our judgment, sufficient notice." {Per Parke, B., ib. 16 ; and see Brewin v. Briscoe, 28 L. J., Q.B. 329.) So a person will be deemed to have had notice, if it be proved that facts, sufficient to inform him that an act of bankruptcy had been committed, have by any means been communicated or known to him. {Ex parte Snowball, Re Douglas, L.R., 7 Ch. App. 534.) Nor will he who has received such communication or known such facts be permitted to allege that he did not read the one or draw the natural inference from the other, for notice means knowledge or wilfully abstaining from acq^uiring it {Bird v. Bass, 6 M. & G. 143 ; Hoper. Meek, ub^ sup.) ; and a creditor, who has himself done that which constitutes an act of bankruptcy on the part of the debtor, requires no notice. Thus, an execution creditor is deemed to have notice of the proceedings under his own execution {Ex parte Dawes, Re Hus- band, L.E., 19 Eq. 438 ; 44 L.J., Bkcy. 62) ; and he who has taken an assignment of the whole of his debtor's property to secure a past debt is clearly affected with notice that the debtor, in executing such an assignment, has committed an act of bankruptcy. Notice to a solicitor who is acting in the particular matter on behalf of the person whom it is sought to affect with notice {Brewin v. Briscoe, ubi sup. ; Brittain v. Brown, 24 L.T., N.S. 504 ; Rothwell v. Timbrell, 1 Dowl., N.S. 778), or to such solicitor's clerk, 84 WHEN BILLS OF SALE VOID if he be entrusted witli the management of the husinessso far as to have a discretion in the matter, or so as to make it his duty to communicate the notice to his master {Pihe Y. Stephens, 12 Q.B. 465; Pennellv. Stephens, 7 C.B. 987), or to an agent, is notice to the client or principal. Notice to one partner is equivalent to notice to all. (Bignold v. Waterhouse, 1 M. & S. 259, per Lord Ellenborough, C.J. ; Edwards y. Cooper, 11 Q.B.33.) Notice may be sent by post, and deemed to have been given at moment of receipt in due course of post. (Loader v. Siscock, 1 F. & F. 132.) The onus of proving the absence of notice, and that the transaction was bona fide, rests upon the person relying upon the protection afforded by the section. (Pearson v. Graham, 6 A. & E. 899; Ex parte Schulte, Re Matanle, L.R., 9 Ch. App. 409 ; 22 W.R. 462.) In Oreen v. Steer (1 Q.B. 710), it was held that the knowledge or ignorance of the person who actually, not constructively, deals with the bankrupt, as to any prior act of bankruptcy, is the material question ; but in a somewhat later case it was ruled that if the assignee from the sheriff of goods seized under an execution had notice of a prior act of bank- ruptcy, he was not protected, although the execution creditor had no such notice (Fawcett v. Fearne, 6 Q.B. 20) ; so that it would seem that the holder of a bill of sale from the sheriff of goods seized under a bona fide execution, at suit of a creditor who had no notice of an act of bankruptcy, may, by reason of notice to himself, notwithstanding that he does not actually deal with the bankrupt, be unable to retain the property as against a trustee in bankruptcy, although his money has irrevocably gone to satisfy the claim of the execution creditor. Fawcett V. Fearne seems, therefore, to some extent, to conflict AGAINST TRUSTEES IN BANKRUPTCY. 85 with Oreen v. Steer. (See 1 Sm., L.C. 616, 517, 7th ed.) But as the pxirchaser under an execution is neither a person dealing with, or at whose sxiit or on whose account, the execution issued against the bank- rupt, he is not within sections 94 and 95, and, therefore, it IS immaterial whether he had or had not notice, if the execution was bona fide and issued by a creditor without notice. Hence it is submitted that the prin- ciple laid down in Green v. Steer is correct. If a person take a bill of sale, after notice of an act of bankruptcy, his security is, of course, much imperilled. But i£ the money secured by the deed consist in part of a sum paid by him in discharge of the claim of the holder of a prior registered unim- peachable bOl of sale, the new biU of sale wiU be valid as against the trustee in the bankruptcy to the extent of the sum paid to the prior mortgagee. (Ux pa/rte Harris, Re Jamws, L.E., 19 Eq. 253 ; 44 L. J., Bkcy. 31 ; Ex parte Coates, Re Lees, 31 L.T., N.S. 622.) Holders of bills of sale, by way of security for a debt due, must notice that the Bankruptcy Act, 1869, sec- tion 40, provides that : — " A creditor holding a specific security on the pro- perty of the bankrupt, or on any part thereof, may, on giving up his security, prove for his whole debt." " He shall also be entitled to a dividend, in respect of the balance due to bim after realiziug or giving credit for the value of his security, in maimer and at the time prescribed." (By the interpretation clause, section 4, "prescribed" "shall mean prescribed by rules of court, to be made as in this Act provided," i.e., by section 78; see G.R., 78—81, and 99—101, 136, made accordingly, 1st January, 1870.) " A creditor holding such security as aforesaid, and not complyiag with the foregoing conditions, shall be excluded from all share in any £vidend." I 86 WHEN BILLS OF SALE VOID Under this section it is clear tliat secured creditors cannot prove for their whole debts, without giving up, realizing, or giving credit for the value of their securities, but, as haiJsrupt partners in trade have joint and separate properties, which are treated in bankruptcy as separate estates, a joint creditor may prove against the joint estate, without giving up any security he may hold upon the separate estates, and equally so where the debt is secured upon the joint property, but, of course, the creditor must not in any case receive more than twenty shillings in the pound. If, therefore, the holder of a bill of sale or other security desires to present a petition for adjudication, he must state in his petition that he will be ready to abandon his security for the benefit of the creditors, in the event of the debtor being adjudicated bankrupt, or, that he is willing to give an estimate of the vame of his security. In the latter case, he wiU be allowed to become a petitioning creditor to the amount of the balance of lus debt, after deducting the amount so estimated as the value of his security. Another, and most important point that holders of bills of sale have to consider is, that any transaction amounting to a fraudulent preference by the bankrupt of one creditor over others is voidable at the election of the trustee, as contrary to the spirit of the bankruptcy' laws. The rule as to fraudulent preferences has been known to the bankrupt law since the celebrated judgment of Lord Mansfield in Alderson v. Temple (4 Burr. 2236), in 1768, and has now received legislative recognition in the Act of 1869, section 92 of which enacts that : — - " Every conveyance ortransfer of property, orcharge thereon made, every payment inade, every obligation AGAINST TRUSTEES m BANKRTJPTCY. 87 incurred, and every judicial proceeding taken or suffered by any person unable to pay his debts, as tbey become due, from his own monies in favour of any creditor, or any person ia trust for any creditor, with a view of giving such creditor a preference over the other creditors, shall, if the person making, taking, paying or suffering the same, become bankrupt within three months after the date of making, taking, paying or suffering the same, be deemed fraudulent and void as against the trustee of the bankrupt ap- pointed under this act ; but this section shall not affect the rights of a purchaser, payee, or incumbrancer in good faith and for valuable consideration." (32 & 33 Vict., c. 71, s. 92.) This section does not avoid as a fraudulent prefer- ence an act which was not such before the Bankruptcy Act, 1869 (Ex parte Tempest, Be Craven, L.E., & Ch. App. 70 ; 40 L.J., Bkcy. 22) ; but, on the other hand, has tempered the severity of the old rule in a material degree. Formerly the question as to what was or was not a fraudulent preference depended entirely on the intention of the debtor to prefer {Rust V. Cooper, Cowp. 629 ; Davison v. Robinson, 3 Jur., N.S. 791) ; but now it would seem necessary to, show bad faith on the part of both creditor and debtor. For, if a creditor in good faith take money which ought to be paid to him, without notice that he is beiag frau- dulently preferred, he will be protected, although the circumstances would otherwise make the payment fraudulent. {Ex parte Butcher, Re Meldrwm, L.R., 9 Ch. App. 595 ; 43 L.J., Bkcy. 98 ; S.O., sub worn. Butcher v. Stead, 44 L.J., Bkcy. 129 ; L.E., 7H.L. 839 ; Ex parte Kevcm, Re Crawford, L.R., 9 Ch. App. 752 ; Ex parte Tate, 25 W.R. 52.) But there must be a valuable consideration. Money due is always a valuable consideration {Ex parte Norton^ i2 88 WHEN BILLS OF SALE VOID Be Golden, L.R., 16 Eq. 397 ; Smith v. Pilgrim, L.R., 2 Ch. D. 127 ; 34 L.T., N.S. 408), and, in a recent case, giving concurrence by a wife to a deed of confirmation of conveyance, was held a valuable con- sideration for a biU of sale sufficient to protect it. CEx 'parte Cox, Re Reed, L.R, 1 Ch. D. 302 ; 33 L.T., N.S. 757.) The burden of proof is, in all cases of preference under the 92nd section, on the person alleging that the payment is protected. {Ex parte Tate, 25 W.R. 52.) Two things are necessary to constitute a fraudulent preference within this section : — (1.) The transaction must be the voluntary and spontaneous act of the debtor. " Prirniafade, a trader who, on the eve of bank- ruptcy, hands over to a creditor assets which ought to be rateably distributed among all his creditors, must be taken to have acted in fraud of the law. But if circumstances exist which tend to explain and give a different character to the transaction, and to show that the debtor acted from a different motive, these circumstances must be left to the jury, who should be told that, unless they come to the conclu- sion that the debtor had the intention of defeating the law, and preventing the due distribution of his assets, by preferring one creditor at the expense of the rest, the transaction stands good in law." {Per Cookbum, G.J., Bills v. Smith, 34 L.J., Q.B. 68.) The whole question turns upon the intention of the trader in disposing of his goods to the particular creditor. "And if," said the Lord Chief tfustice, in the same case, " the act was spontaneous on the part of the debtor, and there are no circumstances to rebut the presumption which arises from the act having been done purely voluntarily on his part, the jury should be told to infer that the preference was fraudu- lent and wrongfiil." AGAINST TRUSTEES IN BANKKtTPTCT, 89 The act, therefore, must be the spontaneous act of the debtor, not bond fide originating in a demand, or some other step of the creditor {Ex parte Tempest, Re Graven, L.E., 6 Ch. App. 70 ; 40 L. J., Bkcy. 22 ; Ex parte Bollamd, Re Cherry, L.R., 7 Ch. App. 24), for a demand by the creditor repels the presumption that the bankrupt upon the eve of bank- ruptcy spontaneously favoured one creditor, to the prejudice of the rest. (Crosby v. Crouch, 2 Camp. 166 ; and see Pennell v. Reynolds, 11 C.B., N.S. 709.) Upon the question whether the payment was volun- tary or compulsory, the motives and state of mind of the bankrupt at the time of payment may properly be left to the jury. So, where a bankrupt made a payment to defend- ant on the eve of bankruptcy, as he said, and as circumstances indicated, to benefit the defendant, and the defendant adduced evidence to show that he had pressed for payment and had threatened to arrest the bankrupt, it was held that the assignee might recover the amount from the defendant. Tindal,C.J., said: "It has been argued, that wherever threat or importanity is resorted to, there cannot be voluntary jpayment. But that proposition is too constrained, and it must be left to the jury to say whether the threat had a/ny operation or not." {Cook v. Rogers, 7 Bing. 438.) But, although in some other cases of this sort it has been held that pressure and importunity of the creditor wiU not prevent the act from being a fraudu- lent preference, yet this doctrine has been very much qualified by subsequent cases, the principle of which may be stated to be, that if there be a bona fide application or pressure for payment or security, on the part of some person having a right to apply ^a request by a surety will be sufficient), and the act in 90 ■ WHEN BILLS OF SALE VOID any degree proceeds from such application or pres- sure, it is not entirely voluntary, and, therefore, is not a fraudulent preference. It is a -well estatlished principle that a creditor, who knows that his debtor is in embarrassed circum- stances, and therefore unable to pay his debts, is not at all debarred from pressing for payment of his own account. He may fairly make use of his knowledge to protect himself. He has a right to be vigilant in defence of his own interests ; and, if by pressure, he is fortunate enough to secure himself, the payment will not be avoided as a fraudulent preference. The Act of 1869 has ia this respect made no alteration, {Ex parte Blackburn, Re Gheesebrough, L.R., 12 Eq. 358 ; Ex parte Tenvpest, Re Craven, L.R., 6 Ch. App. 70 ; 40 L.J., Bkcy. 22 ; Ex parte Tophwm, Re Walker, L.R., 8 Ch. App. 614 ; 42 L.J., Bkcy. 57 ; Smith v. Pilgrim, L.R., 2 Ch. D. 127 ; 34 L.T., N .S. 408 ; but see Ex parte Reader, Re Wrigley, 44 L.J., Bkcy. 139 ; 33 L.T., N.S. 36.) Indeed, a payment can only be entirely volimtary when it originates from the bankrupt himself, so that if a creditor demand payment, pressure is not neces- sary to take it out of the class of voluntary payments (Mogg V. Baker, 4 M. & "W". 348 ; Ex parte London and County Bank, Re Brown, L.E., 16 Eq. 391 ; 21 "W.E.. 842) ; but where there is pressure it must have operated on the mind of the bankrupt in inducing him to make the payment. (See Ex parte Halliday, Re Liebert, L.R., 8 Ch. App. 283 ; 28 L.T., IST.S. 324.) So, where frequent applications had been made to the bankrupt on the defendant's behalf, it was held that the jury were properly directed to say whether the payment was made in consequence of such appli- cation. (Cook V. Pritchard, 12 L.J., C.P. 121.) If the payment be made to secure the debtor froni AGAINST TRUSTEES IN BANKRUPTCY. 91 legal process (Alderaon v. Temple, 4 Biirr. 2235), or in consequence of a threat or apprehension of legal proceedings, however groundless [Thompson v. Free- man, 1 T.E. 165 ; Edwards v. Glyn, 2 E. & E. 29 ; Harris v. Rickett, 4 H. & N. 1), or to avoid the enforcement of some legal right, as that to levy a distress {Stevenson v. Wood, 5 Esp. 200), the trans- action cannot be regarded as purely voluntary, and, therefore, will npt be a fraudulent preference ; and a payment by an agent to his principal in the ordinary course of business (JEx parte Blackburn, Re Oheese- hrough, L.R., 12 Eq. 358), or by a debtor in pur- suance of a precedent contract or engagement {Ex parte Kevan, Re Crawford, L.E., 9 Ch. App. 752 ; S.C, sub nom. Ex parte Putman, Re Crawford, 22 W.R. 569; Expa/rte Mackenzie, Re Bent, 42 L. J., Bkcy. 25 ; 28 L.T., JST.S. 486 ; Ex parte Winter, Re Softley, 24 W.E. 68 ; 33 L.T., N.S. 62), or of money previously agreed to be specifically appro- priated {Toovey v. Milne, 2 B. & Aid. 683 ; Vacher V. Cocks, 1 B. & Ad. 145), will be likewise supported. It may, indeed, be laid down as a general rule, that if anything be done to interfere with, or control the debtor's will, and it have that effect, the act will not be a fraudulent preference. If the fraudulent preference be an available act of bankruptcy, it is, on the adjudication, immediately avoided by virtue of the relation back of the title of the trustee to the act of bankruptcy, but an as- signment which cannot be avoided as an available act of bankruptcy, may yet be voidable by the trustee in bankruptcy, if there be fraud in fact. In the case of Marks v. Feldmian (L.E,., 4 Q.B. 481 ; S.C, L.R., 6 Q.B. 275), J., being indebted to the defendant in between £200 and £300, and to other creditors in about £170,'?;oZtt7ii(mii/gavethedefendantabill of sale of all 92 WHEN BILLS OF SALE VOID Ms goods, stock in trade, &c., witli a power to enter and sell if the amount owing were not paid on demand ; the defendant did enter and sell the goods, realizing less than the debt, and J. was subsequently adjudged bankrupt on his own petition ; it was held by the Court of Exchequer Chamber, reversing the decision of the Court of Queen's Bench, that it was immaterial that the adjudication was on the bankrupt's own peti- tion, so that the fraudulent preference was not void as an act of bankruptcy, to which the assignees' title could relate; that the assignees might s^ recover the proceeds from the creditor, inasmuch as a trans- action amounting to a fraudulent preference is void- able at the election of the assignees as contrary to the spirit of the bankruptcy laws. In the last mentioned case there was fraud in fact, proof of which is, of course, sufficient to avoid any pay- ment as against the trustee ; but where E.., a trader in insolvent circumstances, under pressure, by bill of sale, assigned all his property to the plaintiff, a credi- tor, without intention to prefer, and was a few days afterwards adjudged a bankrupt on his own petition, it was held that, as the assignment could not be avoided as an act of bankruptcy, neither was it fraudulent and voidable by the assignees without fraud in fact. (Jones v. Harher, L.K., 6 Q.B. 77 ; 40 L.J., Q.B. 59 ; and see post, p. 100.) (2.) It must he made in contemplation of bank- ruptcy. — It has been held, that a party who seeks to avoid a payment, or transfer of goods, on the ground that it was voluntarily made by a trader in contem- plation of bankruptcy, must show, not merely that the trader was insolvent when it was made, but, also, that he then contemplated bankruptcy. (Morgan v. Bnmdrett, 5 B. & Ad. 289.) But the true rule would appear to be, that if the condition and conduct AGAINST TRUSTEES IN BANKRUPTCY. 93 of a trader be such as to clearly evince his contem- plation that his embarrassmente 'mv^t, of necessity, end in barikruptcy, the jury will not be warranted in coming to any other conclusion than that the trans- action is fraudulent. But, inasmuch as every man has, down to the time of committing an act of bank- ruptcy, the sole right of dominion over his property, such a pajrment cannot be held to be a fraudulent preference where the bankrupt, at the time of making it, appears to entertain a bond fide hope or expectation that he may be extricated from his difficulties without being made a bankrupt. (CHbson v. Boutts, 3 Scott, 229.) The mere fact of a trader being in embarrassed circumstances does not, of course, prove that he con- templates bankruptcy. He may hope that his affairs wiU rally and come round. (Oreen v. Bradfield, 1 C. & K. 449.) Where the avoidance of the fraudulent preference would benefit, not the estate, but only an individual creditor who claims a security on the property com- prised, the trustee ought not to take proceedings for the recovery of the property himseu, nor will the individual creditor be allowed to take them in his name. {Ex parte Cooper, Re Zucco, L.R., 10 Ch. Aot. 510 ; 44 L.J., Bkcy. 121.) When the assignee, under a bill of sale, which is fraudulent and void as against the trustee in bank- ruptcy, has taken possession of the goods and sold them, the trustee may either treat the sale as tortious, and claim the value of the goods and damages, or he may demand that the proceeds of what have been sold, and the unsold goods, may be delivered up to him. But, if he adrat the latter course, he thereby waives the tort and affirms the sale. (Smith v. Baker, 42 L.J., C.P. 155; L.R., 8 C.P. 350.) 94 WHEN BILLS OF SALE VOID CHAPTER VI. Under what circumstances a bill of sale of chattels is an act of bankruptcy. Althougli a bill of sale may be unimpeaoliable by creditors under the statute of EKzabetb, and may have satisfied all the requirements of the Bills of Sale Acts, there is yet another danger attending an assign- ment of this nature. It may be, itself, an act of bankruptcy, and regarded as fraudulent against credi- tors, within the poHcy of the bankrupt laws. Having inquired, in the two last preceding Chapters, (1) when a bill of sale will be void under the statute 13 EUz., c. 5, and (2) when the chattels comprised in a bill of sale will be saleable by the trustee in bank- ruptcy of the grantor, we must now consider the very different, but equally important question, as to when a bni of sale will be deemed fraudulent and void as an act of bankruptcy within the Act of 1869. This ques- tion, it has been said, may be answered in every case, by reference to one of the three following rules : — (1.) Any transfer which is fraudulent within the meaning of the statute of Elizabeth is also fraudulent, and an act of bankruptcy, under the Bankruptcy Act of 1869. (2.) Any conveyance by a debtor to a creditor of his whole property, or of the whole, with an exception merely nominal, in consideration of a bygone and pre-existing debt, although not fraudulent within the statute of Elizabeth, is fraudulent and an act of bankruptcy under the Bankruptcy Act of 1869. AS ACTS OF BANKRUPTCY. 95 (3.) Any transfer by a debtor to a creditor oipart of his property, in consideration of a bygone and pre- existing debt, althougb not fraudulent within the statute of Elizabeth, is fraudulent and an act of bank- ruptcy under the Act of 1869, if made voluntarily, and in contemplation of bankruptcy, or if it otherwise have the effect of defeating or delaying his creditors. Having sufficiently considered the class of cases within the statute 13 Bliz., c. 6 (Chapter IV.), it is now only necessary to consider the second and third of the foregoing rules. The expression " act of bankruptcy " is defined by the sixth section of the Bankruptcy Act of 1869, the first and second sub-sections of ■which are as follows : — (I.) " That the debtor has, in England or else- where, made a conveyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally. (II.) " That the debtor has, in England or else- where, made a fraudulent conveyance, gift, delivery, or transfer of his property, or of any part thereof. " But no person shall be adjudged bankrupt un- less the act of bankruptcy on which the adjudication is grounded, has occurred within six months before the presentation of the petition for adjudication." It may be as well to observe here, that in this statute the words " with intent to defeat and delay creditors," which were inserted in the correspohding section of former Acts, have been omitted. These two acts of bankruptcy, which, for the pur- poses of this work, it is alone necessary to consider, are common to all debtors, traders or non-traders. {Ex parte Luckes, L.R., 7 Ch. App. 302 ; 41 L.J., Bkcy. 21.) Although the Act of 1869 does not say all his pro- perty, it must be taken to be so intended, and it has 96 WHEN BILLS OF SALE VOID introduced no new principle into our law. Judicial decisions had, from a very early period, established the same result by holding all such assignments, when made by a trader, fraudulent within the policy of the bankrupt laws, which, as we have seen, has invariably been to procure the equal distribution of the debtor's assets ; and, indeed, it is obvious that the interests of creditors would frequently suffer, if debtors in insolvent circumstances were allowed to entrust the distribution of their assets to their private friends as trustees, who might, from personal considera- tions, be more disposed to favour the debtor than the creditor ; and the same doctrine was applied to non- traders as soon as they became subject to bankruptcy by the statute of 1861 (24 & 25 Vict., c. 134), the 70th section of which made a fraudulent con- veyance, gift, delivery, or transfer of his real or personal estate, or any part thereof, by a non-trader, an act of bankruptcy ; and it is clearly within the {)rinciple of what is called fraud upon the bankrupt aws, that, where the effect of a conveyance will be to put it entirely out of a debtor's power to go on with his business, or to meet his creditors, he must be taken to have intended the consequence of what he has done, and though, perhaps, not gmlty of intentional fraud, or even of what is called moral fraud, yet he is guilty of fraud against the policy of the bankrupt laws, by preventing, intentionally or otherwise, the equal distribution of his assets amongst all his creditors, without preference or distinction. In the well known case of Toung v. JFa«fi?(8Ex.234), Mr. Baron Parke made some valuable remarks upon this point. " Acts of bankruptcy," said that learned judge, " arising from fraudulent assignments, are con- fined to acts of a fraudulent nature under the statute of Elizabeth, with an immediate object to defeat creditors, AS ACTS OF BANKRUPTCY. 97 to such as are fraudulent under the Bankruptcy Acts, being made with the object of preventing an equal distribution of the bankrupt's effects under his bankruptcy, which he knows must occur, and, lastly, to those where there is a transfer of property which must necessarily, in its results, be known to the bankrupt to lead to the delay and disappointment of all the creditors, with the exception of that particular individual to whom the transfer is made; such a transfer is also an act of bankruptcy upon the principle that every man is bound to contemplate the necessary results of his own acts." The recent Act, by express enactment, having made the execution by a debtor of such a conveyance or assignment a distinct act of bankruptcy, there is no practical use in tracing the first decisions on a principle now so universally acknowledged. To bring a bUl of sale within the statute as an act of bankruptcy, a fraudulent intent on the part of the grantor need not be actually proved or, indeed, exist. It is sufficient, if the circumstances are isuch as to warrant the inference of fraud. The dispositions of property which are fraudulent within the bankrupt laws, as tending to defeat or delay creditors, may be divided into three classes : — (I.) Those which affect the whok of the debtor's property. (II.) Those which affect part only of his property; (III.) Dispositions made in contemplation of bank- ruptcy, for the express purpose of preferring some particular creditor, and which are known as acts of fraudulent preference. These have beeui under that, name, cursorily, though, for our present purpose sufficiently, alluded to in the last Chapter; (I.) As to transfers affecting the whole of the debtor's: property. — ^A conveyance by deed of all the effects of 98 WHEN BILLS OF SALE VOID a bankrupt, under any circumstances, was in itself an act of banlo-uptcy under 1 Jao. I., c. 15, s. 2. A conveyance by a trader of all his property upon trust, either for a particular creditor ( Wilson v. Day, 2 Burr. 827), or for a certain number of creditors {Butcher v. Easto, 1 Doug. 295), or of all to the exclusion of one {Ex parte Foord, cited 1 Burr. 477), is an act of bankruptcy. So, also, if the assign- ment of the whole of his property be in trust for all his creditors, although no actual fraud is in- tended, because, by executing such a deed, the trader necessarily deprives himself of the power of carrying on his trade, and, unless all the creditors assent to such a deed, the property is put into a different course of application and distribution amongst his creditors to that which the bankrupt laws direct. {Button v. Morrison, 17 Yes. 199.) Blit to make such an assignment an act of bankruptcyj a petition for adjudication must be presented, as we have seen, within six months from its execii- tion. (32 & 33 Vict., o. 71, s. 6.) _ Such an d;ssignment is an act of bankruptcy, which is com- plete on the execution of the deed {Ponsjbrd v. Walton, L.K, 3 C.P. 167 ; 37 L.J., C.P. 113), even although it has never been acted upon, or been out of the trader's possession {Botcherly v. Lancaster, 1 Ad. & E. 77) ; and if destroyed after execution, before being acted upon, it stiU amounts to an act of bank- ruptcy. {Lees V. Whiteley, L.R., 2 Eq. 151.) But a creditor, who has acquiesced in the execution of such Uh iasAi^imietit, isoA. taken a benefit under it, cannot av^ himself of it as an act of bankruptcy. {Eds parte Strayi, L.R., 2 Ch. App. 374; 36 L.J., Bkcy. 7.) The law thait a conveyance of a man's whole pro- perty to secure a past debt, whether he be a trader or A vt^'-'^iaA&r, is an act of bankruptcy, has not been AS ACTS OF BANKRUPTCY. 99 altered by the Bankruptcy Act, 1869. {^x parte Luckes, Be Wood, L.R., 7 Ch. App, 302 ; 41 L. J., Bkcy. 21.) A bill of sale of all a trader's effects and stock in trade, to secure an antecedent debt only, is an act of bankruptcy {Woodhouse\. Murray, L.E., 2 Q.B. 634 ; S.C., L.E., 4 Q.B. 27), whatever the motives of the parties may have been (^erMeUish, L. J., ExparteEllis, L.Bi., 2 Ch. D.,798) ; and, although there may bene actual fraud, on the principle, that the very nature of the transaction is such as to prevent him carrying on his trade. {Siebert v. Spooner, 1 M. & "W. 714.) Such a conveyance withdraws his effects from the reach of his other creditors, and, as was said by Lord Mansfield, in the leading case of Worseleyx. De Mattos (1 Burr. 467), " must eifiier be fraudulently kept secret or produce an immediate absolute bankruptcy." And it IS immaterial, that at the time when the trader executed such a conveyance or assignment, he was pressed by the creditor in whose favour it is made {Johnson v. Fesenmeyer, 25 Beav. 88), or even that he was under arrest for a just debt, at the suit of the particular creditor, and that the deed was followed by immediate possession by the grantee. Thus, in Newton v. Chantler (7 East. 138), a trader, being under arrest at the suit of a creditor for a just debt, executed to bim a bill of sale of all his effects to satisfy his debt, and pay over the surplus, if any, to the trader ; and it was held by the Court of Queen's Bench to be an act of batLkruptcy. "As," said Lawrence, J., " the necessary consequence of this deed of conveyance was to take the whole effects of the trader, which the law says shall be distributed equally amongst all the creditors, and to give them to a par- ticular creditor, this is, within all the cases, an act of bankruptcy, and it is not the less the grant or convey-- ;2 100 WHEN BILLS OF SALE VOID ance of the baiikrupt, to the prejudice of Ms other creditors, because at the time he made it he was under arrest at the suit of the defendant." But, it seems that where the adjudication of bank- ruptcy is subsequently made on the debtor's ovm petition, such an assignment will not be voidable as an act of bankruptcy in the absence of positive fraud. Thus, R., a trader, under pressure, by biU of sale, assigned all his furniture and stock in trade to the plaintiff, a creditor, without fraud and without inten- tion to prefer. E. was at the time insolvent and was, a few days afterwards, adjudged a bankrupt on his own petition. In an action by the plaintiff, it was held that, though the assignment was an act of bank- ruptcy, and would have been voidable as such if the bankruptcy had been on the petition of a creditor, so 'that the title of the assignees would have related back to the act of bankruptcy, yet, as the bankruptcy was on the trader's own petition, and there was consequently no relation back, the bill of sale could not be avoided as an act of bankruptcy, and so was not fraudulent and voidable by the assignees, without fraud in fact {Jones V. Sarber, L.R., 6 Q.B. 77 ; 40 L. J., Q.B. 59.) An assignment by a trader of the whole of his property by way of indemnity ( Worseky v. De Mattes, 1 Burr. 467), or in consideration of the assignees giving promissory notes to the trader's creditors. {Ex parte Zwilchenbart, 3 M., D. & D. 671), or as security to a surety for liabilities he has incurred on behalf of the trader {Leake v. Young, 25 L.J., Q.B. 266), is an act of bankruptcy. (But see Ex parte Befries, Be ilfj/ers, 35 L.T., N.S. 392.) It is immaterial that a bill of sale does not pur- port to transfer the whole of the debtor's property, if it does so, in fact. And so, where a trader gave a biU of sale of certain effects to the public officer of a AS ACTS OF BANKRUPTCY. 101 banldng company, to secure the amouiit due on his account, which was overdrawn, although the bill of sale did not, on the face of it, purport to assign all the debtor's effects, but, it appeared in fact that he had no other property, and that the bank knew that such was the case, the deed was held to be an act of bankruptcy, and void against the assignees. {lAndon V. Sharpe, 6 M. & a. 895.) And a biU of sale, comprising the whole of a debtor's separate estate, given to secure an antecedent debt, was held an act of bankruptcy, even although the debtor had an interest in a partnership, such partnership being insolvent {Ex parte Trevor, Re Burghardt, 45 L. J., Bkcy. 27; L.R., 1 Oh. D. 297) ; audit is thought that an assignment of all a debtor's property in England against which writs of execution might issue out of English courts, for a past debt, would be such an assignment of all the debtor's property as to make it an act of bankruptcy, even though the debtor had other property abroad, on the ground that such an assignment must inevitably defeat and delay his creators. (But see Ex parte Befries, Re Myers, 35 L.T., N.S. 392.) In no case will a merely colour- able exception of part of the effects assigned prevent the operation of the bankrupt laws in this respect. {Wilson V. Day, 2 Burr. 827.) In the case of Siebert v. Spooner (1 M. & "W. 714), Mr. Baron Parke said : " I take it to be perfectly weU settled, that where a trader makes an assignment of aH his effects, or of all except a very small portion, it is necessarily an act of bankruptcy, witiiout any actual fraud." Thus, where a trader gave a biU of sale of all his property, except his furniture and book debts, to a creditor as security for a previously existing debt, it was > held that, notwithstanding the reservation, the deed was fraudulent and void, inas- 102 WHEN BILLS OF SALE VOID much as it placed tlie biilk of the trader's property out of the reach of his other creditors, {^sn parie Foxky, In re Nurse, L.E., 3 Ch. App. 515.) Kor ■will ail exception of such a part of the assignor's property as would not, on his bankruptcy, pass to his trustee, save the assignment from being an act of bankruptcy. So, where a debtor executed, as security for an antecedent debt of £1,500, a bill of sale which included all his property of any appreciable value, except a small pension to which he was entitled as a retired servant of the East India Company, it was held that, as the pension would not pass to his trustee in bankruptcy, and could not be taken in execution by a creditor, it constituted no substantial exception from the assignment, which, being an assignment of substantially the whole of the debtor's property, was an act of bankruptcy. {Ex parte Hawker, In re Keely, L.R,, 7 Ch. App. 214 ; 41 L.J., Bkcy. 34.) In all such cases the debtor obviously gams nothing by the transaction that wQl assist him in carrying on his business, or meeting his creditors, and he places himself and the whole of his property at the mercy of a particular creditor, with the effect of obstructing his other creditors in their legal remedies. But, while an assignment by a trader in insolvent circumstances of all his stock in trade is an act of bankruptcy, it is not absolutely essential, in order to make it an act of bankruptcy, that it should prevent the trader from carrying on his trade. If the effect of the deed be to delay creditors, it may yet be an act of bankruptcy. This proposition is well illustrated in the following case : — G., a farmer, by bill of sale conveyed all his property, except two shares in a joint stock banking company (the property being worth about £3,000), to secure a debt of £900, and the assignment did not AS ACTS OF BANKRUPTCY. 103 prevent his trading as before ; but, nevertheless, it was held to be an act of bankruptcy, inasmuch as, although the grantee would be trustee for G., as to the amount beyond his own debt, yet, as the property could not be taken in execution, the eflEect yeas to delay the creditors. "The true question is not," said Parke, B., " whether the deed stops the trader's business and makes hiTn cease his trading, but whether it makes him insolvent and unable to pay his creditors in the ordinary way." {Smith V. Cannan, 22 L.J., Q.B. 290, Ex. Ch.) And, following this case, it appears to be perfectly settled law that a bill of sale of all a debtor's property, although by way of mortgage, and although the pro- perty ta-ansferred be a great deal more valuable than the amount of the debt to secure which it is trans- ferred, is nevertheless deemed a fraudulent transfer within the meaning of the Bankruptcy Act, because it delays, and may defeat, the other creditors in their legal remedies against him. But those who rely upon such an act of bankruptcy, at the trial must show that it was calculated to have the alleged effect, by evidence of the general state of the debtor's affairs at the time of giving such bill of sale. It is not sufficient that, under pecuniary pres- sure, the bankrupt parted with some articles essential to the carrying on of his business ; as, for example, where a miUer transferred his waggon and horses to a creditor who had arrested him. ( Wedge v. Newlyn, 4 B. & Ad. 831.) Nor is a conveyance by a trader of aU his effects in a given place an act of bankruptcy, unless it be shown that he had no other property {Ghase v. OobU, 2 M. & O. 930) ; and the onus of Jtfovitig this is on the trustee. There isj however, one case in which a conveyance by a trader, being indebted, of all his property and 104 WHEN BILLS OF SALE VOID effects is not an act of bankruptcy, and that is, where he or his creditors obtain an equivalent. "It may be," said Cockburn, C.J., in Wood- house V. Murrai/ (L.E., 2 Q.B. 634), " that the trader gets less than the value of the property he parts with- It may be that, imder the pressure of some extraordinaory exigencies, the trader, mth an honest object of saving himself from bankruptcy and ruin, with a view to his own benefit and that of his creditors, and with an honest and bond fide desire to carry on his trade, pledges his effects, even the whole of them, to realize a sum of money which may faU very far short of their value ; yet, looking at all the circiunstances, it is so plain the intention was an honest one, not to get a sum of money to put into his pocket, but to carry on his business, that such an assignment of all his effects would not be considered an act of bankruptcy. There must, however, be an equivalent in the transaction, or it would be void, as being contrary to the policy of the bankrupt law, and amount to an act of bankruptcy." A distinction must be observed between an assign- ment by a debtor of all his effects for the benefit of his creditors, or for securing a pre-existing debt, and an assignment of all his properiy for a valuable considera- tion, which is clearly not fraudulent by itself. As was said by Lord Kenyon, in the case of Whitwell v. Thompson (1 Esp. 72) : " All the cases, without a single exception, where the assignment of his property by a trader has been deemed fraudulent and an act of bankruptcy, have been where it has been given for a bygone and before contracted debt ; but it never can be taken to be law, that a trader caimot seU his property when his affairs become embarrassed, or assign tiiem to a person who would assist him, as a secu- rity for any advance such person might make to him." AS ACTS OF BANKRUPTCY. 105 And so, a bill of sale, given to his bankers by a trader to cover future as well as past advances, and not made in contemplation of bankruptcy, is not an act of bankruptcy. tCarr v. Burdiss, 1 Or., M. & R. 443.) Upon this principle, wbere the debtor executes the assignment, not only for an existing debt, but as a security for further credit, by which he may be enabled to carry on his business, and upon such security obtains such credit, the deed will not be an act of bankruptcy. Thus, a bill of sale, comprisiug all the goods of the debtor mentioned in a schedule, which did not, however, name stock in trade and book debts, which was given to secure a debt for goods already delivered, and for farther goods to be supplied, accord- ing to parol agreement in the course of trade, and which were afterwards supplied, was held by the Chief Judge not to be an act of bankruptcy, on the ground that the parol agreement to supply further goods, and the fact that goods were so supplied, made the bill of sale good. But, on appeal, the Lords Justices, whilst affirming the decision that the bill of sale was not an act of bankruptcy, did so, on the ground that it was not proved that the whole of the debtor's property was included therein. {Ex parte Chester, Be Dungate, L.E,., 1 Ch. D. 293 ; 45 L.J., Bkcy. 15.) In a more recent case, however, the point was more thoroughly raised ; and it may now, it is submitted, be taken to be settled, that a bili of sale of substantially the whole of a mortgagor's property to secure a previously existing debt and further advances, is not void as an act of bankruptcy, if there be a contemporaneous parol agreement on the part of the mortgagee to make mrther advances to a sufficient amount, and such advances are afterwards, in fact, made, even though the deed contains no covenant or obligation 106 WHEN BILLS OF SALK VOID on the part of the mortgagee to make any further advances. {Ex parte Winder, Me Winstan,ley, L.R., 1 Ch. D. 290 ; S.C, on app., ib. 560 ; 45 L.J., Bkoy. 14; S.O., on app., ib. 89 ; a.G.,sub nam. Expturte Sheen, 34 L.T., N.S. 48 ; Ex parte Bolland, 20 W.R. 862.) It follows, then, a fortiori, that where there is a sale by a trader of all his stock in trade and effects, or by a non-trader of all his goods and chattels, to a bond fide purchaser for a fair and reasonable price, the transaction cannot be avoided as an act of oank- ruptcy ; and any person who seeks to treat the sale as an act of bankruptcy must show some fact, from which fraud may be inferred, {Rose v. Haycoch, 3 Nev. & M. 644.) For, when the purchaser pays a fair price for the goods, the debtor receives an equivalent for his property, the effect of the transac- tion being merely to change the form of that property, and it is then even immaterial that the debtor intended at the time of the sale to abscond and misapply the purchase money, provided that the buyer at tiie time of his purchase be ignorant of the trader's design, and have no reasonable ground to suspect that he means to appropriate the money to himself in fraud of his creators. {Baxter v. Pritchard, 1 Ad. & El. 456.) For the epithet " fraudulent " is to be confined to the gift, transfer, or delivery, and does not extend to the projects which possibly the debtor may enter- tain as to the disposal of the purchase money {per Lord Denman, C.J., ib.) ; though a fraudulent inten- tion, really proved to exist on the part of the grantor and grantee, will make the transaction void, whether it purports to be a bondfi,de transaction or not. But a fair sale by a trader of the whole of his effects for an equivalent which is paid to him, and with which he may deal, is obviously not such an assignment as necessarily puts it out of his power to continue his AS ACTS OF BANKRUPTCY. 107 trade, or meet his creditors, and is not of itself an act of bankruptcy. But, in Mercer v. Peterson (L.B.., 3 Ex. 104 ; 36 L. J., Ex. 218), Cockburn, C.J., said : "It is too late to question the propriety of the decisions to that effect, although, I fear that where a trader makes over his whole estate, even for a fair equivalent, and even although he really have a bond fide intention of going on with his business, in the end the present advance is too often dissipated, and the creditors receive no benefit from it." The courts will not look very closely to the adequacy of the price, if the vendor endeavoured to obtain the most remunerative price he could in the way of business at the time of sale. So, where a retail draper bought on credit, at different times, large quantities of goods, and about three months after commencing such purchases resold the goods for money, part at one time, and part at another, during the six following months, for about half the cost price of the articles, — the sales being real sales, '^the trader and the buyer (the defendant), each trying to make the best bargain that he could for himself, and the trader's object appearing to be to raise money to pay his creditors, — although he afterwards became bankrupt in con- sequence of this reckless course of dealing, — it was held that such sales were not fraudulent transfers, and, consequently, not acts of bankruptcy within the mean- ing of the statute. {Lee v. Sart, 25 L.J., Ex. 135.) On the other hand, a sale of goods at such a price, and under such circumstances, that the purchaser ought to know that the trader is selling to raise money in fraud of his creditors, for his own purposes, is an act of bankruptcy, and the buyer is liable to the assignees in trover for the value of the goods. ( Cook V. Caldecott, 1 Moo. & M. 522.) Thus, if a trader raises money by selling his goods at an undervalue 108 WHEN BILLS OF SALE VOID (not for the purpose of caorrying on his business, but in contemplation of stopping payment and for the pur- pose of cheating his creditors), to one who has noticei either by express information, or from the nature of the transaction, that the trader is selling his goods, not in order to carry on his business, but with a fraudulent intention, the sale is an act of bankruptcy and void, and the trustees may recover the goods or their value from the purchaser. {M-aser v. Levy, 6 H. & N. 16.) The result wUl be the same, if the transaction is not a reaUy bond fide sale, but a mere contrivance to give a preference to the pretended purchaser. {Bustr. Cooper i Cowp. 629.) In considering whether an assignment is fraudulent within the second sub-section of the sixth section of the Act of 1869 {ante, p. 95), it has been noticed that the words " with intent to defeat or delay his creditors," which were found in former Acts, are omitted in that definition of an act of bankruptcy. But the omission does not narrow the effect of the clause. It is clear that to make a conveyance an act of bankruptcy it must be fraudulent against creditors {per Mellish, L. J.; In re Wood, L.R., 7 Ch. App. 803 ; S.O., suh nam. Ex parte Luckes, Re Wood, 41 L. J., Bkcy. 21) ; and fraud against them must import an " intent to" defeat and delay them," so that those words in the former Acts were but mere surplusage. But positive fraud need not be proved. If the effect of the assignment is to defeat and delay creditors, it will be " a fraudu- lent conveyance, gift, delivery, or transfer " witlun the above sub-section. If the consideration for the assign- ment be an antecedent debt, the intention of the grantee is immaterial. But, if the consideration be present or fature advances, it is necessary, in order to constitute the assignment an act of bankruptcy, that proof should be given of a fraudulent intention on AS ACTS OF BANKRUPTCY. 109 the part of both debtor and creditor. {In re Colemere, L.E., 1 Cb. App. 128 ; 35 L. J., Bkcy. 8 ; In re Wood, L.R., 7 Cb. App. 303; Farnelly. Dawsow, 18 C.B. 355.) And sucb an intention will be sufficiently proved, if tbe circumstances are shown to be such that both parties must have known that the present or future advances would be insufficient to enable the debtor to carry on his business. {Bittlestone v. Cook, 6 E. & B. 296 ; 25 L.J., Q.B. 281.) Where, therefore, there is an assignment by a trader of all his property and effects for a present advance of part of their value, and the advance bears a substantial proportion to the value of the property, and the assignment is sought to be avoided, the court " must be satisfied that there exists an intention to defeat and delay, and, consequently, to defraud the creditors, and that object must be the object, not only of the bankrupt, but also of the party who is dealing with him." {Per Mr. Justice WUles, Pennell v. Reynolds, 11 C.B., N.S. 722.) What amount may or may not constitute a suh- stantial advance, sufficient to support the bill of sale, must depend on the circumstances of each particular case. But in every instance it is a still more important question whether there was a lona fide intention of carrying on the business. {Ex parte Winder, Re Win- stanley, L.R., 1 Ch. D. 290 ; S.O., on App., ib. 560 ; 45 L. J., Bkcy. 14 ; S.C, on App., ib. 89.) In Pennell v. Reynolds (11 C.B., IST.S. 769), the fresh advance was £250, and the goods conveyed sold for £515. The court held that the advance was sufficient, in the absence of fraud, to prevent the deed being necessarily an act of bankruptcy, but ordered a ilew trial, in order that the opinion of a jury might be taken upon the question as to whether there was fraud in fact. 110 WHEN BILLS OF SALE VOID In Mercer v. Peterson (L.E., 2 Ex. 304 ; S.C, ih., 3 Ex. 104 ; 36 L.J., Ex. 218 ; S.C, 37 L.J.,Ex. 64), the old debt was £107, the fresh advance was £64, and the value of the property conveyed £115. It was held by the Court of Exchequer Chamber, affirm- ing the judgment of the court below, that the sum of £64 was a fair present equivalent for the assignment by the trader of^ his goods, and that the bOl of sale was not void as an act of bankruptcy. In Lomax v. Buxton (L.E., 6 C.P. 107 ; 40 L.J., C.P. 150), the past debt was £161, and the fresh advance £250 ; the value of the property conveyed, did not exactly appear, but could not have been much^ if any, more than would suffice to cover the advance, and the bUl of sale was held not to be an act of bank- ruptcy. In Allen v. Bonnett (L.E., 5 Ch. App. 577 ; IS "W.R. 874), the antecedent debt was £460, and the present advance £300. In this case also, the value of the property conveyed is not reported ; but the bill of sale was supported, not merely on the ground that there was a sufficient present advance, but also, because seventeen months had elapsed between the execution of the deed and the grantor's bankruptcy, and it was, therefore, too late to rely on the execution of the bill of sale as an act of bankruptcy. In .^a; parte Cohen, Re 8parke (L.R., 7 Ch. App. 20 ; 41 L.J., Bkcy. 17), the bills of sale comprised all the grantor's goods, effects and stock in trade, valued at £600, in consideration of £55, advanced imme- diately before the execution of the deed. No amount was advanced on the date of the assignment, which was held to be an act of bankruptcy. In Ex parte Fisher, Be Ash (L.R., 7 Ch. App. 636 ; 41 L. J., Bkcy. 62), the pre-existing debt was £600, the fresh advance was £100, and the property comprised in AS ACTS OF BANKRUPTCY. Ill the bill of sale afterwards sold for £718. It was lield tliat tlie bill of sale was an act of bankruptcy, and so void against the creditors. But in this case it was not laid down, as a matter of law, that the smallness of the amount of the advance necessarily made the bill of sale an act of bankruptcy; but the Lords Justices con- sidered that it afforded strong evidence that the princi- pal object of the parties in the whole transaction was not to enable the bankrupt to continue his trade, but to secure the repayment of the past advance. If a bill of sale is subsequently given in pursuance of an agreement entered into at the time of the farther advance, it stands on the same footing as if it had been given at the time of the further advance. But the agreement must be absolute, for where the giving of the bill of sale is purposely postponed till the circumstances of the debtor become hopeless, the antecedent agreement will not support it. {Ex parte Msher, Re Ash, L.R., 7 Ch. App. 636.) In kx parte Izard, Re Cook (L.E,., 9 Ch. App. 271 ; 43 L. J., Bkcy. 31), the antecedent debt was £560, the fresh advance was £123. 10s., and the bill of sale com- prised the whole of the grantor's property. But, having been given in pursuance of an agreement entered into when the last £250 of the whole debt was advanced, the bill of sale was held valid, mainly on the ground that the agreement to give it was entered into for a bond fide substantial advance at the time. In Ex parte King (L.E,., 2 Ch. D. 256 ; 45 L. J., Bkcy. 109), a bill of sale, which stated the antecedent debt to be £900, and the advance made only £50, was held not an act of bankruptcy. But, in that case, the assignment was made in fulfilment of a distinct promise to give a bill of sale as soon as an advance of a substantial amount (£150) had been made. The advance really made was £250, which was paid by k2 112 WHEN BILLS OF SALE VOID instalments, on payment of tlie last of which the bill of sale was given ; but there was no such intentional post- ponement found as in Ex parte Fisher, Be Ash (L.B,., 7 Ch. App. 636), from which case, therefore, it is clearly distinguishable. The advance need not be actually money paid to the grantor. If something be done for the debtor, which may enable him to continue carrying on his business, as by relieving him of a liability, that will prevent the assignment being an act of bankruptcy. {Ex parte Reed, Re Tweddell, L.E., 14 Eq. 586; Ex parte Thielfall, 46 L.J., Bkcy. 8.) And, although giving a bill of sale by A. of all his property, as security for a past debt of £100, and also for a sum of £100 then advanced by B. to enable A. to meet a bill, to which he had forged B.'s name, was held by the Chief Judge in Bankruptcy an act of bankruptcy, on the ground that it was given in consideration of a past debt, with no present advance with which A. could, deal, and made with the intention of compounding a felony [Ex parte Caldecott, 35 L.T., N.S. 172), the decision was reversed by the Court of Appeal, on the ground that the particular circumstances of the case disclosed no offence against the bankrupt laws. {Ex parte Butt, 46 L.J., Bkcy. 14.) But where the consideration for the bill of sale is not an equivalent which is paid to the debtor, and with which he may deal, the courts will more strictly inquire into the adequacy of the consideration, and, as to whether it is likely to defeat or delay creditors. So it was in the following often quoted case. Leake, a trader, being embarrassed, had sum- moned a meeting of his creditors, and requested B. to become surety for the payment of a composition he proposed. to offer, and B. consented to do so for ten shillings in the pound, but verbally stipulated that A.S ACTS OF BANKRUPTCY. 113 Leake sliould give him security over all lie had. At the meeting, B. not heing present, the creditors agreed to accept twelve shillings in the pound, hut Leake did not inform them that B. had stipulated for the security for himself. Under the composition deed three bills, of £16. 10s. each, were given to one of the creditors for the amount of his debt, which were drawn by Leake, and accepted by B. The first of these bills was dishonoured at maturity, and the creditor, having endorsed it over to his agents in London, they commenced an action in their own names against B. for the amount, and an action against Leake, in the name of their principal, for the amount of the original debt, less the amount of the bill endorsed over to them. The creditor obtained judgment, and issued execution in his action, but Leake had, under pressure from B., previously executed a biU of sale of all his property to him. The court held that the bill of sale to B. was an act of bankruptcy, being an assignment of all the trader's property, and not being for such an equivalent as to make it not necessarily delay his creditors. {Leake v. Young, 5 El. & B. 955.) " A transaction," said Lord Campbell, m de- Kvering judgment in this case, " whereby the property is conveyed to secure a surety against liabilities which he has incurred to the particular creditors, who may come in, and which surety can stop the trade at any moment, is not, in our opinion, a case where the bankrupt receives an equivalent which he can deal with in carrying on his trade, if he chooses, within the doctriae of Rose v. Haycock (3 Nev. & M. 645) and Baxter v. Fritchard. (1 Ad. & E. 456.) The whole power is entirely taken out of the hands of the bank- rupt, and his trade may be stopped at any moment, at the will of the assignee, while he is to receive nothing, and no part of the property, or its proceeds, is under his 114 WHEN BILLS OF SALE VOID control, but the whole is in effectto be appHed to secure a creditor, who is to pay instalments to the particular body of creditors, who have come in and agreed to receive his acceptances. It seems impossible to us to treat such a transaction as one where the trader obtains an equivalent, within the principle of thecases on which the plaintiff relies ; and we, therefore, on principle, as well as authority, give our opinion that the deed ia question was an act of bankruptcy." It wQl have been gathered from the preceding cases, that an assignment of all a trader's effects to secure a present advance, or present and fature ad- vances, or fature advances, honestly made, or to be made, for the purpose of enabling him to carry on his business, or to secure an advance to enable him to satisfy a pressing demand, and thus to continue his busi- ness, is not, of itself, an act of bankruptcy ; for, as long as the assignment is in consideration of a substantial advance, either of money or money's worth, it stands on the same footing as an assignment of all, with a substantial exception, which is, likewise, not an act of bankruptcy ; and it will not be so where there is no fraudulent intent, even though the effects assigned far exceed in value the amount of the advance, for it is known to every man engaged in commerce that a comparatively trifling sum of ready money may enable a trader to retrieve his affairs, and so prove of the greatest benefit, not only to himself, but to his credi- tors, and that a difficulty that would often wreck a business, being disposed of by a little timely help, the trader is enabled to gain time, which may be of vital importance to him. In Whitmore v. Claridge (33 L.J., Q.B. 87), a trader was pressed by two creditors, one of whom had a bill of sale on part of his property, and the other creditor an execution on the rest of his AS ACTS OF BANKRUPTCY. 115 goods. The debtor applied to Claridge to assist him, and, in consideration of Claridge agreeing to pay o£f the two creditors, assigned to hini by bilL of sale all his estate and effects. Claridge paid off the creditors, and it was held, affirming the decision of the court below, that the bill of sale was not an act of bank- ruptcy, as it was not in consideration of a past debt only, but an assignmentin consideration of the assignee's releasing the trader's property from a charge already laid upon it. In Bittlestone v. Cooke (6 E. & B. 296), B., a carpet manufacturer, had agreed with defendants to consign his manufactured stock to them as his factors, for sale, and they made advances to him, partly in cash, and partly by acceptance. In order to reduce the balance due to his bankers, B. consigned part of his stock of raw yarns to the defendants, and they made advances upon them. It was agreed that de- fendants should advance him from £500 to £800 to meet his payments and bills coming due, and that he should give them a biU of sale as security for that and other advances, not to exceed in the whole £1,800. When the deed was executed, it was known that B. would require more than £500 to be immediately advanced, and the bill of sale recited that B. ivas in debt to the defendants ia the sum of £500, as if that sum had been already ad- vanced. The whole of B.'s stock in trade, value £6,000, was assigned. The defendants made advances to B., in pursuance of the deed, until the 8th February. On the 16th, they took possession under the bill of sale, and, subsequently, on the same day, B. signed a declaration of insolvency, and, on the 18th, was adjudged a bankrupt. It was held that the deed, being a security for future advances, and made iond- fide to enable B. to carry on his business, and not to 116 -WHEN Bir,LS OF SALE VOID defeat or delay his creditors, was not an act of bankruptcy, for the advances, if bearing a small proportion to the amount of property pledged, might yet be of more advantage to the trader and his creditors than the property itself. An assignment, therefore, by a trader of all his pro- perty, as security for an advance of money which he may afterwards apply in payment of existing debts, is not necessarily fraudulent and an act of bankruptcy within the Bankruptcy Act. In order to make such an assignment fraudulent, as we have seen {ante, p. 109), the lender must be aware that the borrower's object was to defeat or delay his creditors, and such an assignment cannot be an act of bankruptcy, unless it be also void as being fraudulent. {In re Cokmere, L.E., lOh. App. 128 ; 35 L.J., Bkcy. 8.) In illustration of the now established rule that a bill of sale to secure an advance, even though it comprise the debtor's whole property and contain a power to seize after acquired property, is not neces- sarily an act of bankruptcy, is the well known case of Sutton v. Gruttwell (1 E. & B. 15), where a trader, being indebted to L. in £200, agreed with the defendant, upon his paying the £200 to L., to assign all her effects to him by a bill of sale to secure the £200. A bill of sale was accordingly executed some months after, .containing a power for defendant to enter and take all the effects which then were, or at any time during the continuance of the security might be, on the premises, and sell them and repay himself the £200 and interest, and pay ex- penses of sale, and pay the residue to the grantor. The grantor covenanted to pay the £200 by instal- ments, and was to remain in possession until default •in payment. She subsequently sold the effects for £567, and paid the £200 to defendant, and AS ACTS OF BANKRUPTCY. 117 afterwards became bankrupt, and ber assignees sued defendant to recover tbe £200, relying on tbe bill of sale as an act of bankruptcy and fraudulent against creditors. But it was beld tbat the execution of tbe deed was not necessarily in itself an act of bank- ruptcy, for tbe transaction was, as if tbe deed bad been executed at tbe time of tbe payment, by defend- ant to L., wbicb constituted a good consideration l)etween tbe grantor and defendant, and tbe clause enabling tbe defendant to sell after acquired property did not vitiate the transaction. Tbe payment of the £200 to L., by the defendant, was an advance to the assignor to enable her to carry on her business, and she derived tbe full benefit of the whole sum advanced. Carrying this principle still further, a bill of sale, including not only all existing property, but also all after acquired property, in consideration, partly of an existing debt, and partly of a present advance, will not be an act of bankruptcy if the debtor really get a fair present equivalent, or some substantial benefit from the money or goods advanced. So, where a trader, being indebted to the de- fendant, gave him his acceptance for the amount of the debt ; three days bemre the acceptance was due, he agreed to give tbe defendant a bill of sale on all his effects and stock in trade, in consideration of the defendant taking up the acceptance, and to cover any further advance which might be made to him by the defendant. The defendant, accordingly, took up the acceptance, and afterwards lent an additional sum of £64 to the trader, upon the understanding that it should be included in the bill of sale. A biU of sale was subsequently executed, in pursuance of the agreement, whereby the whole of the trader's per- sonal estate, of which he was then, or should in future become possessed, was assigned to the defend- 118 WHEN BILLS OF SALE VOID ant, as security for the debt due from tlie trader to him. The trader's property was worth about £115. Less than twelve months from the date of this bill of sale, but more than twelve months from the agree- ment to give it, the trader became bankrupt. In an action of trover, by his assignee in bankruptcy, against the defendant, for the goods comprised in the bill of sale, some of which had been acquired after the agreement, it was held by the Court of Ex- chequer Chamber, affirming the decision of the court below, that the sum of £64 was a fair present equivalent for the assignment by the trader of his goods, and that the bill of sale, therefore, conferred on the defendant a good title to them as against the plaintiff. (Mercer v. Peterson, L.R., 3 Ex. 104 ; 37 L.J., Ex. 64.) In another case, a bill of sale, including all the existing property of a trader, and containing a power to seize all after acquired property, except farming stock, was made by him in favour of a creditor in consideration, partly of an existing debt, and partly of a sum advanced by such creditor, to enable him to satisfy the claim of another creditor secured by a previous bill of sale over the same property, and thus to redeem the property which had been already seized under the .prior bill of sale. More than twelve months after the date of the previous bill of sale, proceedings were taken for a liquidation of the debtor's affairs, by arrangement under the 125th section of the Bank- ruptcy Act of 1869, and a trustee was appointed, and the court held that the latter bill of sale was not an act of bankruptcy. {Lomax v. Buxton, L.R., 6C.P. 107; 40 L.J., C.P. 150.) A bill of sale, comprising all the debtor's pro- perty, as security for an existing debt arising from a loan previously made, wiU not be an act of bank- AS ACTS OF BANKRUPTCY. 119 ruptcy if it be made in performance of an agreement entered into at the time of the loan. So, where a trader, indebted to several persons, procured from A. an advance of £200, for which he verbally agreed to give a bill of sale of all his property, if called upon to do so. On receiving the money, he gave to A. a promissory note for £200, a memorandum of agreement to assign some property expectant on the death of his wife's father, together with a policy of assurance, and, also, another memorandum of agree- ment to pay £10 yearly as a bonus. At a later period, on being requested, he executed a bill of sale of aU his property to A. It was held by the Court of Exchequer that such a bill of sale, having been executed in pursuance of the original agreement, was not an act of bankruptcy. {Sarris v. Riekett, 28 L. J., Ex. 197 ; Ex parte Izard, Re Cook, L.E., 9 Ch. App. 271 ; 43 L.J., Bkcy. 31 ; Ex parte King, L.R., 2 Ch. D. 256 ; 45 L. J., Bkcy. 109.) Nor is there anything in the Bills of Sale Acts to impair the security of a bill of sale given in pursuance of such a promise {Ex parte Mackenzie, Re Bent, 42 L.J., Bkcy. 25 ; 28 L.T., N.S. 486) ; but a proviso that the security shallbe increased, if the debtor become bankrupt, is a fraud upon the bankruptcy laws, and consequently void. [Ex parte Mackay, Re Jeavons, L.E., 8 Ch. App. 643 ; 42 L. J., Bkcy. 68.) Where a sum of money is advanced upon the faith of a promise by the borrower to give a bUl of sale of his property as security to the lender, the sum so advanced will be considered as advanced upon the security of the bill of sale, but the promise must be an absolute one. (Ex parte Fisher, Re Ash, L.R., 7 Oh. App. 636 ; 41 L. J., Bkcy. 62.) An insertion in a bill of sale, knowingly, of a wrong sum does not necessarily invalidate the security, as 120 WHEN BILLS OF SALE VOID against creditors, if done without fraud, and -with the intention of maMng the security available, only to the extent of the sum actually due. {Biddulph v. Goold, 11 W.R. 882.) (2.) As to transfers affecting part only of the debtor's property. — An assignment of a part merely of a trader's effects, even on account of a pre-existing debt, does not, like an assignment of the whok, con- tain Avithin itself the evidence of a fraud. {Balme v. Sutton, 2 Y. & J. 101.) A debtor may lawfully assign specific portions of his effects in payment of, or to secure, a particular creditor {Hooper v. Smith, 1 Wm. B. 442), provided, of course, that such an assignment is not manifestly and actually fraudulent ; as, for instance, when made expressly to prefer the particular creditor at the expense of all the other creditors. {Pulling v. Tucher, 4 B. & Aid. 382.) "A conveyance of a part may be public, fair and honest, for, as a trader may sell, so he may openly transfer, many kinds of property, by way of security ; but a conveyance of all must either be fraudulently kept secret, or produce an immediate absolute bank- ruptcy." {Per Lord Mansfield, Worseley v. Be Mattos, 1 Burr. 467.) At the same time a convey- ance by a debtor of part of his property, in contemplct^ tion of bankruptcy, with intent to defeat and delay or defraud his creditors, will be void as an act of bankruptcy ; as, for instance, where a trader gave a bill of sale of one-third part of his effects, in con- sideration of a loan of £120, two days before he absconded, the biU of sale was held to be an act of bankruptcy {Linton v. BartM, 3 Wils. 47) ; but it will be otherwise, if it be made bona fide. {Manton V. Moore, 7 T.R. 67.) As we have seen, if the bill of sale be, in fact, a conveyance of aU the effects, with only a colourable exception of part, it will be AS ACTS OF BANKRUPTCY. 121 deemed an act of bankruptcy {Compton v. Bedford, 1 Wm. B. 362), as, in effect, an assignment of the whole. As a general rule, an assignment, — not of the whole of a debtor's property, nor of the whole with a colour- able exception, — but of a part only, to secure a pre- existing debt, is not, in the absence of positive fraud, an act of bankruptcy. The principle, in the case of traders, appears to be that if the transaction is bond fide, and does not involve consequences injurious to the trader's solvency, it will not be an act of bankruptcy ; but if, on the other hand, the transaction is inconsistent with the rational possi- bility of a continuance of the debtor's trade, and the debtor knows that all chance of his continuing in trade, fairly or substantially, or otherwise than colourably, is gone, then the transaction will be an act of bankruptcy. An assignment under pressure by a trader to certain creditors, not of the whole of his property, but with a substantial exception, is not an act of bankruptcy ; so, where a trader, under pressure, assigned to two creditors, who were aware of his insolvency, his house- hold furniture, stock in trade, and goods, chattels and effects in his dwelKng-house, which, on their sale, realized £193, and the trader also had book debts and tea in bond of the valu'e of £93, it was held in the Exchequer Chamber (affirming the judgment of the Court of Exchequer) that the assignment was not an act of bankruptcy. "Wightman, J., said : " No doubt, an assignment of the whole of a trader's pro- perty is an act of bankruptcy, because the necessary effect of it is to defeat and delay his creditors. For the same reason, an assignment, with a colourable exception of part only, is an act of bankruptcy, for it is, in effect, an assignment of the whole. In the present case, however, the portion omitted was not merely a colourable exception, because it appears that 122 WHEN BILLS OF SALE VOID it produced, when realized, about one-tliird of the whole of the trader's property. It must, therefore, be taken as an assignment of a part only of the pra-. perty, and that was assigned under pressure. It has been decided, in several cases, that a hona fide assign- ment by a trader of part of his property, in conse- quence of pressure, is not an act of bankruptcy." (8mUh V. Timms, 32 L. J., Ex. 216.) The case of Hale v. AUnuU (25 L. J.,_ C.P. 267) is a striking illustration of the same principle. There, a licensed victualler was indebted to B. in £570, for goods sold and money advanced. Being pressed for payment, as an inducement for forbearance on, the part of B., A. executed a deed, whereby he mortgaged to him the public-house in which the business was carried on, and assigned to him, by bill of sale, all his trade and other fixtures and household furniture, with a power of sale, in case of default in payment of the debt and interest, by certain instalments, extend- , ing over a period of several months. The value of the property mortgaged constituted about a third part of the assets, while the debts altogether amounted to above three times the assets. A. con- tinued his business nearly three months, when he became bankrupt, having, in the meantime, received further supplies of goods and advances of money from B., and made various payments to other creditors. It was held that the execution of the deed was not an act ol bankruptcy ; the assignment not being of the whole (or the whole, with a colourable exception) of A.'s property, and the defeating or delaying of creditors, by producing absolute present insolvency and incapacity to carry on trade, not being its neces- sary result; nor was the deed void as a fraudulent preference of B., it being the result of pressure on his part, and not a voluntary conveyance on the part of A. AS ACTS OF BANKRUPTCY. 123 If the effect of the assignment is such that, if operated upon, it must immediately stop the grantor's trade, it will generally be deemed an act of bank- ruptcy. (James v. Mbiti, Ir. R., 6 O.L. 553 ; 21 "W.E., Dig. 16.) In the case of Stanger v. Wilkins (19 Beav. 626), A., a trader, being indebted to B., another trader, assigned to him certain property to secure the debt. A. was either actually insolvent at the time, or in such circumstances that the enforcement of the pro- visions of the deed would have stopped his business at once, and both A. and B. knew that it was only by preserving the goodwill, and by careful manage- ment, that A. could possibly hope to pay his debts, for which time and the forbearance of B. were neces- sary. A. certainly, and probably B. also, knew that the former was insolvent. B.'s debt, however, was lona fide, and the security was executed under hona fide pressure, and contemplated the continuance of the business by A., and his tutimate extrication from his difficulties by the aid of B. This deed was set aside, the Master of the Bolls saying: "In the case before me, substantially the whole of the property of the trader was assigned. He was also, in my opinion, insolvent at the time ; the effect of the assignment was such that, if operated upon, it must have imme- diately stopped the trade, have destroyed the goodwill, have produced a great deficiency of assets to pay the trader's creditors, and have given to the assignee, under that deed, a great advantage oyer them. All this was known to both parties to the deed at the time, unless they chose wilfuUy to shut their eyes to the necessary consequence of what they were about ; and these facts, vrluch I consider to be established by the evidence, are, in my opinion, sufficient to invalidate the deed." l2 124 WHEN BILLS OF SALE VOID An assignment of part of a debtor's property, although tte rest is large, will be an act of bankruptcy, if it be accompanied at the time by silch circum- stances of insolvency, that the general body of the creditors are defeated and delayed in the manner of distribution, according to the bankruptcy laws. {Ex parte Wensley, 32 L.J., Bkcy. 23.) On the same principle was decided another case, where a debtor, in consideration of a bygone debt of £230, by a bill of sale assigned to the defendants certain property, amounting to £160. He had also other property, consisting of an equity of redemption, valued at £150, and book debts to the amount of £60, of which £22 were good. His debts amounted to £1,100, of which £600 was due to the defendants, and the residue to other creditors. At the time the deed was executed, the debtor was insolvent, and the defendants knew it ; and they also knew that, if they put the deed in force, it would prevent the debtor from carrying on his trade. The deed was put in force by the defendants, and the debtor's trade was stopped. It was held that the assignment was an act of bankruptcy, as the defendants, by putting the deed in force, prevented the continu- ance of the trade, and thereby necessarily defeated and delayed creditors. ( Young v. Fletcher, 34 L. J., Ex. 154 ; James v. EhUtt, Ir. E., 6 C.L. 553 ; 21 W.R. Dig. 16.) An assignment of the machinery and effects of a trader, necessary for carrying on his trade, and com- prising all his property, except his household furniture and book debts, which were of small value, he being at the time in insolvent circumstances, was held an act of bankruptcy, the Lord Justice Turner saying : " This case appears to me to combine within itself all the materials which, in the reported cases, have been AS ACTS OF BANKRUPTCY. 125 held to constitute the execution of such an instrument as the one before us an act of bankruptcy. There is an assignment of nearly all the property of the bank- rupt; of the machinery by which alone his trade could be carried on, for securing a pre-existing debt." {Ex parte Bland, Re Murgatroyd, 6 De G., M. & G. 757 ; and see also Goodricke v. Taylor, 2 De Or., J. & S. 135.) But, it must not be forgotten that the mere fact that the assignment has the effect of preventing the trader from carrying on his business will not alone render the deed invalid ; as, for example, if the debtor have other substantial property, not comprised in the biU of sale, and, generally, if he be not thereby rendered insolvent ; for, where a trader assigns part of his property by way of mortgage, the most important question under the bankruptcy laws is, not whether putting the deed in force will para,lyze and stop the business, but whether it will make him insolvent. A manufacturer assigned aU his machinery, by way of mortgage, to secure the amount of certain Tjills drawn by him and accepted by the consignees of his goods, which had been discounted by the mortgagee, and. also of such other biUs, as should, from time to time, be discounted in like manner. The mortgagee was empowered, after three days' notice, to enter and take possession of aU the machinery, and, after a sale of the same, to pay the amount of the expenses, and the bills then due or recurring, and pay the surplus to the mortgagors. At the time of the execution of this deed, the machinery was worth £1,500, and the mortgagor's property consisted of goods £1,100, and good debts £900 ; while his whole liabilities were £2,900. It was held that this deed was no evidence of an act of bankruptcy, although, had it been acted upon, the mortgagor could not have carried on the 126 WHEN VOID AS ACTS OF BANKRUPTCY. particular business in wHoli lie was engaged. (Young V. Waud, 22 L.J., Ex. 27.) Mr. Baron Parke said: " The question is not whether tli'e result of tlie assign- ment being acted upon would be to disable bim from carrying on bis trade, but wbetber be would thereby be rendered insolvent." In judging, therefore, of the validity of a bill of sale of part of a debtor's property, given to secure a pre- contracted debt, it will be most important to consider, not merely the description of the property comprised in the bill of sale, but its relative proportion to the debtor's other property, the general state of his pecuniary affairs, and whether insolvency is a necessary consequence of the transaction ; and this principle is applicable to traders as well as non-traders. Even if the bill of sale be not fraudulently intended, ask the question, will it delay or defraud the other creditors ? It is obvious that any assignment by way of security must remove property to some extent out of the power of the other creditors, but the question in each case appears to be whether the circumstances are of such a nature as to constitute the transaction a fraudulent interference with the rights of other creditors, and whether, by reason of such transaction, the debtor, being rendered insolvent, will be unable to meet his liabilities. The conveyance or assignment, if executed out of England, to be fraudulent must be fraudulent by English law. {Ex parte Crispin, L.R., 8 Ch. App. 380 ; 42 L.J., Bkcy. 65.) When an adjudication of bankruptcy is made, founded upon the execution by the debtor of a biU of sale which is held to be an act of bankruptcy, the holder of the biU of sale is entitled to appeal against the adjudication. (Ex parte Ellis, L.R., 2 Ch. D. 797.) ON THE KEGISTEATION OF BILLS OF SALE. 127 CHAPTEE YII. On the registration of bills of sale. Assuming tlie transaction embodied in a bill of sale not to be invalid by reason of any of the matters mentioned in the tbree last preceding Chapters, there still remains one formality to be observed for per- fecting the bill of sale as an instrument, namely, registration in accordance with the provisions of 17 & 18 Yict., c. 36. Before the passing of this statute, the question in ascertaining the validity of a hUl of sale was, whether the transaction was bond fide, or made with intent to defeat the creditors of the person making it, and the apparent possession itself raised a presumption of fraud. The legislature not, however (as appears from the preamble of the Act), consider- ing this a sufficient safeguard against possible frauds, has provided for the registration of bills of sale as a further secxirity to creditors, not, be it. observed, for giving any additional force or validity to the instru- ment as an assurance, but for maJdng it more a matter of notoriety. The statute 17 & 18 Vict., c. 36, recites that : " Frauds are frequently committed upon creditors by secret bills of sale of personal chattels, whereby persons are enabled to keep up the appearance of being in good circumstances and possessed of property, and the grantees or holders of such bills of sale have the power of taking possession of the property of such persons, to the exclusion of the rest of their creditors ;" and, by section 1, it enacts as follows : " Every bUl of 128 ON THE REGISTRATION sale of personal chattels made after tlie passing of this Act (loth July, 1854), either absolutely or con- ditionally, or subject or not subject to any trusts, and whereby the grantee or holder shall have power, either with or without notice, and either immediately after the making of such bill of sale, or at any future time, to seize or take possession of any property and effects comprised in or made subject to such bill of sale, and every schedule or inventory which shall be thereto annexed or therein referred to, or a true copy thereof, and of every attestation of the execution thereof, shall, together with an affidavit of the time of such bill of sale being made or given, and a description of the residence and occupation of the person making or giving the same, , or, in case the same shall be made or given by any person under or in the execution of any process, then a description of the residence and occupation of the person against whom such process shall have issued, and of every attesting witness»to such bill of sale, be filed with the officer acting as clerk of the docquets and judgments in the Court of Queen's Bench, within twenty-one days after the making or giving of such bill of sale (in like manner as a warrant of attorney in any personal action given by a trader is now by law required to be filed), otherwise such bill of sale shall, as against aU assignees of the estate and effects of the person whose goods, or any of them, are comprised in such bill of sale under the laws relating to bank- ruptcy or insolvency, or under any assignment for the benefit of the creditors of such person, and as against all sheriffs' officers and other persons seizing any property or effects comprised in such bill of sale, in the execution of any process of any court of law or equity authorizing the seizure of the goods of the person by whom, or of whose goods, such bill of sale OF BILLS OF SALE. 129 shall hare been made, and against every person on whose hehalf such process shall have been issued, he null and void to all intents and purposes whatsoever, so far as regards the property in or right to the possession of any personal chattels comprised ia such bill of sale, which at or after the time of such bank- ruptcy, or of filing the insolvent's petition in such insolvency, or of the execution by the debtor of such assignment for the benefit of his creditors, or of executing such process (as the case may be), and after the expiration of the said period of twenty-one days shall be in the possession, or apparent posses- sion, of the person making such bill of sale, or of any person against whom the process shall have issued under, or in the execution of which, such bill of sale shall have been made or given, as the case may be." Section 2 provides that : " If such bill of sale shall be made or given, subject to any defeasance or condi- tion, or declaration of trust, not contained in the body thereof, such defeasance, or condition, or declaration of trust, shall, for the purposes of this Act, be taken as part of such biU of sale, and shall be written on the same paper or parchment on which such bill of sale shall be written, before the time when the same, or a copy thereof, respectively, shall be filed, other- wise such bill of sale shall be nuU and void to all intents and purposes, as against the same persons, and as regards the same property and efiects, as if such bill of sale, or a copy thereof, had not been filed according to the provisions of this Act." "We have previously considered what are " bills of sale " (see Chapter I.), and what " personal chattels " (Chapter II.), within the meaning of the Act. Before dealing with the construction of section 1, it may be well to note the interpretation placed by the courts upon the words " defeasance or condition" 130 ON THE REGISTRATION and "declaration of trust," in the second section. Neither expression includes an arrangement outside the bill of sale which does not confer some benefit upon the grantor. Thus, it has been held that " a defeasance or condition " is something which diminishes, defeats, or prejudicially qualifies the rights of the grantee in favour of the grantor {Ex parte Collins, 44L.J.,Bkcy.78 ; L.E.,100h.App. 367), and does not include a collateral agreement giving the grantee additional benefits to those con- ferred by the bill of sale itself, such as a contempo- raneous memorandum that a portion of the sum of money in the bill of sale expressed to be paid to the grantor, but which had, in fact, been retained by the grantee as a charge for making the advance, was to be paid in full, notwithstanding the moneys secured by the bin of sale might be repaid, or the rights of the grantee enforced, before the expiration of the time for payment mentioned in the bill of sale. Such a docu- ment, though not required to be " written on the same paper or parchment " as the bUl of sale, would, if not registered, have all the infirmities of an imregistered bill of sale. {lb. ; and see Ex parte Southam, L.E., 17 Eq. 578 ; 43 L. J., Bkcy. 39.) And so the terms " declaration of trust " comprehend only declarations of trust in favour of the grantor of the biU of sale ; and, where there are no such trusts, it is not necessary that the grantee imder a bill of sale should state in it the name of the person who reaUy advances the money, the object of the provision being to prevent creditors being defrauded by sham bills of sale, by which the whole interest of the grantor is apparently- transferred, whereas, in reality, he retains some interest in the subject of the transfer. {Robinson v. Colling- wood, 34 L.J., C.P. 18.) " Time of such bankruptcy." — These words, in OF BILLS OF SALE. 131 section 1, mean the time of the commission of an act of bankruptcy, to whicli the trustee's title can relate back. {Ex parte Attwatei; lie Turner, W.'N., Dec. 30, 1876, 304; 21 Sol. Jour. 146.) j£s to possession and apparent possession. — ^As th© personal chattels, in respect of which an unregistered bill of sale is declared Toid against assignees in bank- ruptcy and execution creditors, are such as shall be in the possession or apparent possession of the person making the bill, or other persons in the Act mentioned, it. will be convenient here to consider what is meant by "possession" and "apparent possession." It seems that the Act applies unless the grantee has both got actual possession of the goods, and taken them out of the apparent possession of the grantor. {Ex parte Jay, 43 L. J., Bkcy. 122 ; L.R,, 9 Ch. App. 697, per Mellish, L.J.) A mere endeavour to get possession of them is not sufficient if, in fact, actual possession is not obtained, for the Act is applicable whether the possession of the grantor is with the consent of the true owner or not. {Ancona v. Sogers, L.E,., 1 Ex. D. 285 ; 24 W.R. 1000, reversing decision of Ex. D., 33 L.T.' N.S. 749 ; and see also Purber v. mnlayson, 24 W.R. 370 ; 34 L.T. 323.) Even if the goods have by the grantor been delivered to a bailee, they still remain in the grantor's possession, notwith- standing the grantee may have demanded possession of the bailee and been refused. {Ancona v. Rogers, supra, per Mellish, L.J.) But it is seldom that the grantee is unsuccessful in his endeavours to obtain actual possession of the goods. A more frequent difficulty is to determine whether, having once obtained possession, he continues to exercise such dominion over them as to take them out of the apparent possession of the grantor. The Act itself declares (section 7), that " personal chattels 132 ON THE REGISTRATION shall be deemed to be in the apparent possession of the person making or giving the bill of sale, so long as they shall remain, or be in or upon any house, null, warehouse, building, works, yard, land, or other premises occupied by him, or as they shall be used and enjoyed by him in any place whatsoever, not- withstanding that formal possession thereof may ham been taken by or given to any other person." The possession of a vendor or mortgagor is a ques- tion of fact, rather than of law, and is to be decided by the jury. . Bramwell, B., has observed {Gough v. Everard, 32 L.J., Ex. 210), that the meaning of this clause is, that the goods shall be deemed to be in the apparent possession of the vendor, as long as they are on the premises occupied by him, if there has been nothing more done to them than mere formal pos- session taken. (And see Re Vining, 39 L.J., Bkcy. 4 ; L.E,., 10 Eq. 63.) What the " something more than/or»«a^ possession" must be has never been very clearly defined by the judges. It would seem to be the exercising of some such continuous act or acts of dominion over the goods as would, in the view of tbe outer world, change the appearance of possession, with which the grantor was previouslyinvested. The material question is, what is apparent to the public, not what the inten- tion of the parties is. {Ex parte Jay, 43 L. J., Bkcy. 122 ; L.R., 9 Ch. App. m7,per MeUish, L.J.) It is not necessary that the goods should be removed out of the house or buildings of the grantor, but generally the possession which has been upheld by the courts has been where the person who has taken possession of the goods has also got exclusive possession of the premises in which they are. Thus, in Smith v. Wall (18 L.T., N.S. 182), the creditor had put a man in possession of the house containing the goods comprised in the bill of or BILLS OF SALE. 133 sale, kept tlie doors locked, and stopped the business carried on there ; two days after, printed notices of sale by auction of the goods were posted outside the house, stating that the sale was to take place under a bill of sale. The debtor, who was an infirm old man, remained on the premises, contrary to the officer's wishes, as he said he could not get lodgings elsewhere. These proceedings were held to have taken the goods out of the apparent possession of the debtor. (And see Emanuel v. Bridger, 43 L.J., Q.B. 96 ; L.R., 9 Q.B. 286 ; Ex parte Bedfern, 19 W.E. 1058.) So, where the assignor ceased to reside upon the premises, not- withstanding the business was still carried on with his name over the door. (JDavies v. Jones, 10 "W.R. 779.) On the other hand, the following circumstances were held to show that the goods remained in the apparent possession of the grantor, within the meaning of the Act, and that only formal possession had been taken. H., on the 3rd November, 1870, executed a bill of sale, which was never regis- tered, assigning the furniture in his house to L. On the 28th of November, L. sent a broker's man to take possession of the furniture. This man continued to live in the house of H., and- to sleep there until H. became bankrupt, but H. was permitted to use and enjoy the furniture just as before possession was taken. On the 19th December, bills were posted in the neighbourhood, announcing a sale of the furniture by auction on the 28th, but not stating that the sale was to take place under a bill of sale. On the 23rd of December, H. was adjudicated a bankrupt, and it was held that the bill of sale was invalid, and that the furniture passed to the trustee under the bankruptcy. {Ex parte Lewis, Be Senderson, L.R., 6 Ch. App. 626; 19 W.E. 835.) MeUish, L.J., in delivering judgment, remarked: "The facts of Smith M 134 ON THE KEGISTEATION V. Wall (18 L.T., N.S. 182), compared with those of the present case, appear to show exactly what is necessary to make the possession taken by the per* son claiming under a bill of sale good, as against the trustee in bankruptcy of the maker of the bill of sale. In Smith v. Wall, the man who took possession did not leave the goods in the possession of the mortgagor just as before, and merely live in the house and sleep in a room upstairs. On the contrary, he tried to turn the mortgagor out of the house, but he allowed him, as he was an old man, and as he said he could not get a lodging elsewhere, to sleep in the house. In that ease, the bills announcing the intended sale of the goods, stated that the sale was to be made under a bill of sale. In the present ease, there was nothing in the bills to show that the sale was not one which was to be made by H. himself of his furniture. It appears to me that the possession which was taken was merely that which the Act means by 'formal possession,' and that bills an- nouncing a sale of the goods by auction, even if posted upon the house in which the goods were, would not be enough to terminate the possession of the bankrupt, unless they stated that the sale was to be made under a bill of sale." (And see Ex parte Jay, 43 L.J., Bkcy. 122 ; L.R., 9 Ch. App. 697 ; Ex parte Eomann, 39 L.J., Bkcy. 4 ; L.R., 10 Eq. 63 ; Edwards v. Edwards, 45 L.J., Ch. 391 ; L.R., 2 Ch. D. 291.) Where a person, after assigning his furniture, remained on the premises, having the use of the furni- ture as part of his wages, it was held to be in his apparent possession. {PiekardY. Marriage, 45 L.J., Ex. 594 ; L.R., 1 Ex. D. 364.) Goods formally seized by the sheriff under an execution remain in the appa- rent possession of the debtor. {Ex parte Mutton, 4l L. J., Bkcy. 57 ; L.R., 14 Eq. 178.) OF BILLS OF SALE. 135 The Court of Exchequer, interpreting the above quoted words of the seventh section, " so long as they shall remain, or be in, or upon any house, land, or other premises, occupied by him," held {Rohinson v. Briggs, 40 L.J., Ex. 17 ; L.R., 6 Ex. 1) that the occupation must be a c^e/ac^o occupation ; and, therefore, where goods comprised in an unregistered bill of sale had been deposited in rooms rented by the grantor, and the keys of the premises had been demanded and given up to the grantee in consequence of non-compliance by the grantor with the conditions of the bill of sale, and the grantee entered, marked the goods, and kept the keys, the jury found rightly that the premises were not " occupied " by the grantor, and the goods were, therefore, not in his "apparent possession," within the meaning of the Act. When registration is necessary. — To create the ne- cessity for registration under the Act, there must be apparent possession by the maker of the bill of sale for upwards of twenty-one days after it is made. {Be Carlisle, 27 L.T., N.S. 520.) So that, if within the twenty-one days the assignee takes and retains possession of the goods, he acquires a good title, not- withstanding that m. the iuterval the maker may have become bankrupt (unless he is a trader, in which case they will, whether the bill be registered or not, vest in the trustee, as being in the order or disposition of the bankrupt, 32 & 33 Vict., c. 71, s. 15, sub- sec. 5), or an execution creditor may have seized the goods. In fact, an unregistered bill of sale is a good assurance against all the world (other than the trustee in bankruptcy or liquidation of a maker, who is a trader) for the space of twenty-one days. {Marples v. Hartley, 30 L. J., Q.B. 92 ; Brignall v. Cohen, 21 "W.R. 25.) And, where the goods are taken in execution within the twenty-one days, a bill m2 136 ON THE EEGISTKATION of sale is not void, although the holder, intending to comply -with the Act, has filed documents not in con- formi<7 with it, for an imperfect registration will not place the holder of the bill of sale in a worse position than if there were none whatever. {Banbury v. White, 32 L. J., Ex. 258.) Even if the grantee of the goods contained in the hiH of sale obtains possession of them at any time before they are seized in execution by a creditor, although the twenty-one days may have elapsed, the bill of sale, though unregistered, confers a good title upon the grantee. So, if after the twenty-one days, and before the commission of an act of bankruptcy by the grantor, possession is obtained by the grantee, his unregistered bill of sale will confer a good title as against the grantor's trustee in bankruptcy. But where an unregistered bin of sale comprised brewer's casks, which, when the grantee took possession, were in the hands of customers, and were hot returned until after the commission of an act of bankruptcy, the mortgagee was held not to be entitled to them. {Ex parte Warren, L.R., 10 Ch. App. 222 ; 23 W.R. 401.) An unregistered bill of sale given by a company is good against the liquidator, upon the winding-up of the company. {Re Maritie Mansions Company, 37 L. J., CL 113 ; L.E., 4 Eq. 601.) Where an attempt was made to evade the necessity of registration by having a new bill of sale every nineteen days, it was decided that the new bills were void on the bankruptcy of the assignor. {Ex parte Cohen, Re Sparke, 41 L. J., Bkcy. 17 ; L.R., 7 Ch. App. 20 ; Ex parte Stevens, Re Steeens, 44 L.J., Bkcy. 136.) But this transaction was held invalid, not as being in evasion of the Bills of Sale Act, but as fraudulent under the Bankruptcy Act, for the suc- cessive bills of sale having been given in pursuance of OF BILLS OF SALE. 137 a prior agreement, and without any new consideration, the last of the series was regarded as having been given to secure an antecedent debt, and, therefore, void as against the trustee in bankruptcy. (And see ante, Chapter YI.) If there had been a new consideration and a new arrangement the transaction would have been, valid. Thus, in JEx parte Harris, Be Fulling (42 L. J., Bkcy. 9 ; L.B,., 8 Ch. App. 48), a trader gave a bill of sale of the furniture in his dwelling-house to secure accept- ances which the creditor had discounted for him, and which were to become due within the twenty-one days. The debtor requested the creditor not to register the bill of sale until the acceptances became due and were dis- honoured. It was accordingly not registered, nor was possession taken of the goods. On the day (12th Octo- ber) the acceptances fell due they were dishonoured, and the creditor had to take them up. The debtor gave him new acceptances to fall due within eighteen days (on the 30th October) from that date, and he also gave biTTi a new bill of sale of the furniture. These ac- ceptances, on faUing due, were dishonoured, and the creditor instructed a broker to take possession of the furniture. The broker, on the 31st October, en- deavoured to take possession, but his men found the door locked, and they were unable to obtain possession until the next day, when he seized the furniture and removed it. On the 31st October, the second bill of sale was registered, and the same day the debtor filed a petition for liquidation by arrangement. The second bin of sale was held to be valid, James, L.J., re- marking that : " He could see no evidence thatit was a device to evade the operation of the Bills of Sale Act. The debtor said to his creditor, ' Do not register the bin of sale tUl after the expiration of twenty-one days.' The Act allowed this to be done. The second bill of 138 ON THE HEGISTRATION sale was given npon an entirely new arrangement. The creditor lent the money to take np the bills of exchange which were nnpaid, and then he took a security for the new bills of exchange which were substituted for the nnpaid ones." And, although an arrangement for successiye re- newals, or the want of a new consideration, may inyalidate the last of a series of biUs of sale as an attempt to evade the bankruptcy laws, it wiU not invalidate it as an evasion of the Bills of Sale Act. If the last of the series is duly registered, the Bflls of Sale Act is complied with, and the security wiU be good as against the execution creditors of the maker, though it might fail as against his trustee in bankrupti^. (Mamsden v. I^ton, 43 L.J., aB. 17 ; L.E., 9 aB. 17 ; ffunfer v. Turner, 23 W.R. 792.) Thus, iq a case in which there had been successive renewals of a bill of sale, which was in the form of a mortgage and contained a proviso for redemption, the last of the series was held good against an execution creditor who levied four days after the date of such last bill of sale, which was afterwards registered within the twenty- one days, on the ground that, although the property had passed from flie grantor by the former bills of sale, yet, as there was a power of redemption, each Tnaln'Tig of a new bill of sale would be regarded as a redemption of the goods and a fresh mortgage pf them {Hollingsworth v. White, 10 W.R. 619) ; and, even where, in the case of a bill of sale which, though in fact a mori^age, purported to amount to an absolute sale of the properiy, there had been similar successive bills, the preceding one in each case being destroyed upon the execution of a new one, but no fresh con- sideration having been paid, the last of the series was, upon being duly registered, held to be valid against exe- cution creditors, on the original consideration, on the OF BILLS OF SALE. 139 groimd that the intention of the parties must have been that the original consideration should he treated as existing as a debt, although the giving of each new bin of sale amounted to an annulment of the preceding one, and as a revesting of the goods ia the debtor who, by the new bill of sale, immediately transferred them to the grantee, and so on to the last bill of sale given, when, if the debtor was in possession and the bill of sale was registered, all that the law strictly required to be done was complied with. [Smale V. Burr, 42 L.J., O.P. 20 ; L.E., 8 C.P. 64.) And so, although there was an arrangement upon the giving of the first bill of sale that neither it nor the renewals were to be registered within twelve months, unless the maker shoxdd get into difficulties. {Ramsden V. Lupion, 43 L. J., Q.B. 17 ; L.R., 9 Q.B. 17.) With regard to the twenty- one days it would seem, by analogy to a warrant of attorney, that the time is to be reckoned exclusively of the day of execution, so that a bin of sale, having been executed on the 9th, would be properly filed on or before the 30th of the same month. ( Williams v. Burgess, 12 A. & E. 635.) Difference between a bill of sale and an agreement for one. — To avoid the necessity for immediate registra- tion, the plan is sometimes adopted of taking an agreement for a future bill of sale. Such an agreement, qua agreement, does not require registration (Ex parte Soman, Re Broadbent, L.E,., 12 Eq. 698 ; 19 W.E. 1078), and wiU, as against a trustee in bankruptcy, be a good consideration for a bill of sale subsequently given and duly registered [Mercer v. Peterson, 36 L.J., Ex. 218); but, if it is itself reHed upon as giving a title to the holder, it must be registered. {Ex parte Mackay, Re Jeavons, 42 L. J., Bkcy. 68 ; L.R., 8 Oh. App. 643.) Moreover, such an agreement would not be a good consideration where 140 ON THE BEGISTKATION the giving of the bill of sale is purposely postponed to prevent the loss of credit resulting from registration. lExpaHe Fisher, Be Ash, L.R., 7 Ch. App. 636 ; 20 W.R. 849 ; Ex parte King, 45 L.J., Bkcy. 109 ; L.R., 2 Ch. D. 256 ; and see Ex parte Izard, Re Cook, 43 L.J., Bkcy. 31 ; L.R., 9 Ch. App. 271.) A duly registered hill of sale, given ia pursuance of an agreement, "would he good as against the execution creditors of the maker. Indeed, the authors conceive that the validity of such a biU would, both as against a trustee ia bankruptcy and an execution creditor, be determined by the like rules as have been adopted in the case of a registered bill of sale given in the place of a previously unregistered one. {Ante, p. 138.) The effect of non-registration. — The Act declares that, after twenty-one days from the execution, an unregistered bill of sale shall be " nuU and void, to all intents and purposes whatsoever," as against the persons therein named, being the trustee iu bankruptcy or liquidation, or under an assignment for benefit of creditors, and execution creditors of the maker. Therefore, an execution creditor of the maker will be entitled to the goods comprised in an unregistered bin of sale, notwithstanding he knew of the bill of sale at the time he allowed his debt to be contracted. {Edwards v. Edwards, 45 L.J., Ch. 391 ; L.R., 2 CL I). 291.) But, an unregistered bill of sale is, at any period of time after it is made, not only good as between the grantor and the grantee, but against aU the world, other than the persons before mentioned, and will even prevail against a subsequently given and registered biU of sale. Therefore, if the owner of goods executes a bill of sale of them in favour of A., which is not registered, and subsequently assigns the same goods by a second bill of sale to B., which is regis- tered, B. will have no title under the second bill of OF BILLS OF SALE. 141 sale, as the grantor had previously parted with his property in the goods to A., and had nothing in them to convey to B. {Nichohon v. Cooper, 27 L. J., Ex. 393.) But, where a debtor made a hill of sale of his goods to S., which was not registered, and afterwards made another to H., which was registered, and, execu- tion being issued against him, both S. and H. claimed the goods, which still remained in the debtor's posses- sion, it was held that H. was entitled to them, on the ground that the consequence of avoiding an unregis- tered bill of sale by execution is to displace it altogether, and not merely as concerns the execution creditor. {Richards v. James, 36 L.J., Q.B. 116 ; L.E,., 2 Q.B, 285 ; and see Meux v. t/acoSs, 44 L.J., Ch. 481 ; L.R., 7 H. L. 481.) So, where a non-trader gave a bill of sale to B., which was not registered, and afterwards a bill of sale over the same property to C, which was registered, and subsequently went into liquidation, it was held that the liquidation displaced B.'s bill of sale, and that C. thereupon became entitled to the goods, and not the trustee in Kquidation. {Ex parte Coch- rane, Re Barrand, 45 L.J., Bkcy. 122 ; L.R., 3 Ch. D. 324 ; affirmed on appeal by the Lords Justices, sub nom. Ex parte Leman, 25 W.R. 65 ; L.E,., 4 Ch. D. 23.) Where, however, A., the holder of a first bill of sale, had not registered, but had taken suc- cessive renewals of his bill, and, during the cur- rency of one of these renewals, the goods comprised in the biU of sale were taken in execution, and after- wards, within twenty-one days from the last renewal, A. registered such renewed bill, it was held that A. was entitled to the goods as against both the execution creditor and the holder of a duly registered bill of sale over the same goods given after A.'s first bill, but before the last renewal. {Hunter v. Turner, 23 W.R. 792.) 142 ON THE REGISTKATION The holder of a prior bill of sale does not lose his priority, hy reason of the holder of a subsequent bill of sale of the same chattels proceeding to take posses- sion of them, for there is no rule of law requiring the former to perfect his title as against the latter, by taking possession. {Ex parte Allen, Be Middleton, 40 L. J., Bkcy. 17 ; L.R., 11 Eq. 209.) From the above' remarks, it will be seen that a person, who is about to advance money upon the security of a bOl of sale, should make diligent in- quiries to ascertain that no previous unregistered bill of sale has been given, otherwise he may find himself to be the holder of a perfectly worthless instrument. The plan is sometimes adopted of requiring a statu- tory declaration from the giver of the bill of sale that the goods are not subject to any prior security or charge. A person inducing another to lend him money on a bill of sale, upon a representation that the chattels included in the biU of sale were unin- cumbered, whereas they were, in fact, included in a prior bill of sale, although not charged to their full value, would be guilty of an indictable false pretence. {Reg. V. Meakin, 11 Cox, 270.) Effect of registration. — Registration is to give pub- licity to the transaction for the protection of credi- tors. It will not make good a bill of sale which is in itself fraudulent or otherwise bad {JDarvill v. Terry, 30 L.J., Ex. 355 ; 6 H. &N. 807) ; but a bill of sale when registered must be dealt with in the same way as an unregistered bill of sale would have been dealt with before the Act. {Ex parte Collins, 44 L. J., Bkcy. 78 ; L.R., 10 Ch. App. 367.) We have seen that, notwithstanding the continued possession or apparent possession of the maker, an unregistered bill of sale, if made without fraud, is good against all persons, other than execution creditors and trustees in bank- OF BILLS OF SALE. 143 ruptcy. Moreover, there is no question that a duly- registered bill of sale is good against the execution, creditors of the maker, and also against his trustee in bankruptcy or liquidation, if he is not a trader. If the maker is a trader, and he retains such possession of the goods as to render him reputed owner of them at the time of the commission of an act of bankruptcy, it is different. In a previous Chapter (Chapter Y.) we have considered under what circumstances "goods and chattels at the commencement of the bankruptcy in the possession, order, or disposition of the bankrupt, being a trader, by the permission of the true owner, of which goods and chattels the bankrupt is reputed owner," pass to his trustee in bankruptcy. It is thoroughly settled that there is nothing in the Bills of Sale Act to narrow the doctrine of reputed owner- ship, and that the registration of a bill of sale will not take the chattels included iu it out of the order and disposition of the bankrupt. {Badger v. 8haw, 29 L. J., Q.B. 73 ; Stansfeld v. CuUtt, 2 De G. & J. 222 ; 27 L..J., Ch. 266 ; Ex parte Harding, 42 L.J., Bkcy. 30 ; L.R., 15 Eq. 223.) To defeat the claim of the trustee in bankruptcy, in case the grantor of the bill of sale should become bankrupt, the precaution should be adopted of framing the bUl of sale, so that the grantee can take possession of the goods upon very short notice whenever he fears bankruptcy is impending over the grantor. But this matter will be dealt with at more length in the next Chapter. The requisites of the affidavit to be filed. — The affi- davit to accompany the biU of sale at the time it is filed or registered must set forth : (1) The time of the making of tho bill of sale, (2) a description of the resi- dence and occupation of the grantor, and (3) a like account of the attesting witness. It is immaterial 144 ON THE EEGISTKATION wlietlier the bill of sale itself contain any or all of these particulars ; they must be contained in the affi- davit. And, even though the bill of sale contain these matters, the affidavit must contain them also, either in express words or by direct reference to them, as set forth in the bill of sale, so as to verify them on oath. It is therefore proposed to consider the result of the decisions upon each of these three points, first premising that a false statement in the affidavit is a common law pusdemeanour, and punishable accordingly. (Beg. v. JSodgkiss, 39 L.J., M.C. 14; L.E,., 1 C.C.R. 212.) 1. The time of making the bill of sale. — In order to comply with the requirements of the Act, the affi.davit must accurately state the day of execution, and an . affidavit, alleging that the deponent was present and saw the bill of sale annexed, bearing date the 20th day of June, 1860, duly executed, would be bad for not averring when it was in fact executed. But it would be suf&cient to state that the bill of sale was given on the day it bears date, without mentioning what the date is. (Lamb v. Bruce, 45 L. J., Ex. 538.) And if the affidavit state the day of the actual execu- tion of the bill of sale, it is valid, though the con- sideration money was not paid, nor the deed attested, until two days after the actual execution. {Barmll v. Terry, 6 H. & N. 807 ; 30 L. J., Ex. 355.) 2. Description of the residence and occupation of the grantor. — The whole object of the Act is to prevent frauds, and to give, by means of registration, informa- tion to all persons whom it may concern that a debtor, or a person about to contract debts, has executed a bill of sale, and thereby deprived himself of a portion of his property. And the reason for the affidavit of the residence and occupation of the grantor is to ensure that there shall be such a description on oath, OF BILLS OF SALE. 145 60 that where these, matters are not distinctly sworn to, the statute is not complied with. {Jones v. Sarris, 41 L.J., Q.B. 6.) The great and main thing is residence ; the occupation is accessory and secondary. (Lamb v. Bruce, 24 W.E. 645, per Cockburn, C.J.) But the affidavit should contain such information as will unmistakeably identify the grantor and also give the assignee and creditor a true idea of his position in life, and therefore a misdescription, or the absence of a true description, in regard to his occupation, is substantial and invalidates the transaction. {Allen v. Thompson, 25 L. J., Ex. 249.) But a variation between one of the christian names of the grantor in the bill of sale and in the accompanying affidavit, which cannot mislead, is immaterial. {Corbeti v. JRowe, 25 W.R. 59.) {a.) As to residence. — The residence must be given with sufficient exactness, to enable creditors and others who look at the register to identify the person giving the bill of sale. Residence within the Act means the place where a person carries on business for himself, or his employer, during the day, and not where he happens to sleep at night. Thus, a solicitor's clerk may be described as residing at his master's office. {Blackwell v. England, 27 L. J., Q.B. 124 ; 8 E. & B. 541 ; Eewer v. 'Cox, 30 L. J., Q.B. 73, per Wightman, J.) A person may, however, it seems, be described as residing at the place where he sleeps at night, {deeper Pollock, C.B., Attenhorough v. Thompson, 27 L. J., Ex. 23 ; 2 H. & N. 559.) What is a sufficient description of residence will depend upon the particular circumstances of each case, and is a question for the judge, not for the jury. {Phillips V. Burt, 2 F. & F. 862.) If a person is resident in a small town, or is a well known person in a town of moderate size, it would be sufficient to N 146 ON THE REGISTRATION describe him, generally, as of that town ; on the other hand, if he is resident in a large town or city, it would be necessary to give the street and number of the house in which he lives. Probably, the ordinary postal address of the grantor would, in the majority of cases, be sufficient. For example, the description " of the city of Cork " would not be sufficient ; unless, possibly, the person were one of the chief merchants there {In re Earns, 10 Jr. Ch. Eep. 100) ; but "law clerk, Carlow, in the county of Carlow," was held a sufficient description of a person living in a town of 9,000 inhabitants. {McCue v. James, 19 W.R. 158.) And, where the attesting witness stated in the affi- davit,' " I reside at Hanley, in the county of Stafford, and am an accountant," and it appeared that he was a clerk to H., an accountant, at Manchester, and managed H.'s business at Hanley, being allowed occasionally to do business on his own account, and that the name of H., not of M. (the witness), was over the office, but that hundreds of letters reached M. by the post, with the address of Hanley only, although the population of the parliamentary borough of Hanley was 40,000, it was held a good description of the residence and occupation of the attesting witness. {Briggs v. Boss, L.R., 3 Q.B. 268 ; 37 L.J., Q.B. iOl.) If the description be substantially correct, so that creditors could not have been misled by it, but any person could easily discover the identity of the party, it is sufficient. Thus, where a person's residence was described in the affidavit as of " New Street, Blackfriars, in the county of Middlesex," instead of "New Street, Blackfriars, in the city of London," it was held good. (Sewer v. Cox, 30 L.J., Q.B. 73.) Q>.) As to occupation. — The description of the occupation of the grantor must give a true idea of OF BILLS OF SALE. 147 his position in life. Occupation means tlie business a man follows, the profession, pursuit, calling, or avocation hy which he makes his living or gains money, and not any mere title or designation to which he is accustomed by the courtesy of the world or the usages of society, or even to which he is entitled by express enactment of law, except in the case of a peer, who may be described by his title. (/w re Earl of Limerick, 7Ir. Jur., N.S. 65.) Thus, " esquire " is no description of an occupation, and has been held insufficient in the case of a merchant {In re 0' Connor, 27 L.T. 27 ; but see In re Boughiy, 18 L.T., N.S. 188), and of a lessee and manager of a theatre, who was an actor by profession. {Ex parte Somann, Re Fining, 39 L.J., Bkcy. 4 ; L.R., 10 Eq. 63.) Neither is " gentleman " a description of an occupation, and can only be sufficient where the grantor is entirely without occupation, and, indeed, it implies a person without occupation. {Per Pollock, C.B., Allen v. Thompson, 25 L.J., Ex. 249 ; 1 H. & N. 15; Brodrick v. Scale, 40 L.J., C.P. 130; L.R., 6 C.P. 98.) It has, therefore, been held an insufficient description of a clerk in a public depart- ment, and semble of the head of the department {Allen V. Thompson, supra) ; of a buyer of silk for a city house {Adams v. Graham, 33 L.J., Q.B. 71) ; of a solicitor's clerk {Dryden v. Sope, 9 W.E,. 18 ; Beales v. Tennant, 29 L.J., Q.B. 188) ; and even of a solicitorj though his proper legal description is that of a gentleman. (Tuton v. Sanoner, 27 L.J., Ex. 293.) " Gentleman " would not be a good description of a person in a low social position, of no occupation {Sniith V. Cheese, 45 L.J., C.P. 156 ; L.R., 1 O.P.D. 60) ; but a person who belongs to the class of life to which the term " gentleman " is usually applied may be so described when he has either never been n2 148 ON THE KEGISTRATION engaged in any occupation {Gh-ay v. Jones, 14 C.B., N.S. 743), or at the time of giving the bill of sale has no definite occupation. {Smith v. Cheese, 45 L.J., O.P. 156 ; L.E., 1 C.P.D. 60.) " Merchant " is a good description of a shipbroker (Gugen v. Sampson, 4 F. & F. 974) ; and "government clerk " of a clerk in the Admiralty. (Grant v. Shaw, 41 L.J., Q.B. 305; L.R., 7 G.B. 700.) " Clerk '_' is a good description of an occupation, without stating the kind of clerk. {Lamb v. Bruce, 45 L.J., Ex. 538.) A person who carried on the business of accountant as clerk or agent to a principal who Kyed at a distance, but who was also allowed to transact business on his own account, was held to be sufficiently described as an " account- ant" {BriggsY. Boss, 37 L.J., Q.B. 101 ; L.R., 3 Q.B. 268) ; but this was held an insufficient description of the occupation of a clerk in the accountant's depart- ment at the Euston Station, although he worked for other people after office hours in bookkeeping and matters of account. {Larchin v. North Western Deposit Bank, 44 L.J., Ex. 71 ; L.R., 10 Ex. 64.) A woman engaged in trade is not sufficiently described as "widow;" butwhereawoman who at the time of giving the bill of sale carried on a farm as the executrix of her late husband, and not with a view of taking perma- nently to it, and had no other occupation, it was held that she need not be described as a fanner, but was sufficiently described as "widow." {lAickin\.Mamliyn, 21 L.T., N.S. 366 ; Croshie\. Murphy, 8 Ir. C.L. Rep. 301.) A person bearing the same name as his father need not be described as " A.B., the younger." {FouU ger v. Taylor, 1 L.T., N.S. 57.) _ It is not necessary to describe a person as of an occupation which he has only casually and temporarily followed; so that where the grantor was a medical student, who had for some time acted as a surgeon's OF BILLS OF SALE. 149 assistant, but there was no evidence that he was so acting at the time of the bill of sale, he was held to be sufficiently described as a " gentleman." {Bath v. Sutton, 27 L. J., Ex. 388.) And the same was held a good description of a person who had been a colliery agent, but for some months had been out of employment (Morewood v. South Yorkshire Railway Company, 3 H. & N. 799 ; 28 L.J., Ex. 114) ; and of a person, formerly a proctor's clerk, but who had left his em- ployment six years before, and was doing casual work, such as collecting debts, but had no regular employ- ment, living principally on an allowance from his mother {Smith v. Cheese, 45 L.J., C.P. 156 ; L.R., 1 C.P.D. 60) ; and of an undischarged bankrupt fol- lowing no occupation. {London and Westminster Loan Company v. Chase, 12 C.B., N.S. 730.) But it is suggested that in all these cases it will be a safe pre- caution to describe the grantor as lately carrying on a specified trade, but now of no occupation, thus : "John Jones, of 200 Fleet Street, in the city of London, late a butcher, but now of no occupation." (And see Trousdale v. Sheppard, 14 Jr. C.L. Eep. 370.) If the grantor has an occupation, it must be given, although he has no definite employment. So that a person who had been managing clerk to a dissolved firm of solicitors, by whom he was temporarily em- ployed in making out the bills of the firm, was held to be improperly described as a gentleman. {Beaks v. Tennant, 29 L.J., Q.B. 188.) Where, however, a person is described as a " gentleman," or of no occupation, the onus of proving that he had at the time any definite occupation lies on the party seeking to impeach the bill of sale on that ground. {Bath v. Sutton, 27 L. J., Ex. 388 ; 3 H. & N. 382.) An affidavit of the residence and occupation of the grantor, to the best of the deponent's belief, is sufficient, 150 ON THE REGISTRATION if uncontradicted. (Boe v. Bradshaw, 35 L. J., Ex. 71 ; L.R., 1 Ex.106.) It is a somewliat nice question how far an imperfect description of tKe grantor in the affidavit may be explained and cured by reference to the bill of sale. If there be an entire absence of the description of the occupation or residence of the grantor in the affidavit, the biH of sale filed at the same time cannot be looked at to supply what is wanting in the affidavit, though the grantor is there fully described. {Hatton v. English, 26 L.J., Q.B. 161.) Neither will it be sufficient to state in the affidavit that A.B. (omitting his residence or occupation) is the person mentioned in the bin of sale,* unless it is averred that he is truly described therein. {Pickard v. Bretts, 29 L.J., Ex. 18 ; 6 H. & N. 9.) But, where the affidavit stated that " the paper writing hereunto annexed is a true copy of a bill of sale, bearing date &o., and made between &c.," setting forth the names, residences, and occupations of the parties as given in the bill of sale, but not directly deposing to the correctness of the descriptions, it was held sufficient. {Wikoxon v. Searhy, 29 L.J., Ex. 154.) And, if there be upon the affidavit a description of the residence and occu- pation of the grantor, which was intended to be a true description, but there is a slight ambiguity in the expression used, that ambiguity may be removed by reference to the bill of sale containing a true and unambiguous description. Thus, in an affidavit filed with the copy of a bOl of sale, it was sworn that the deponent was present, and did see the said J.A. execute the said biU of sale, and that the said J.A. resides at Dynevor Lodge, and is an auctioneer ; it was also sworn in the affidavit that the paper writing thereto annexed was a true copy of a bill of sale given by J.A., &c. The paper writing, thus referred OF BILLS OF SALE. 151 to and annexed, commenced : " This indenture, made the 5th day of December, 1870, between J.A., of Dynevor Lodge, in the parish of Llanarthney, in the county of Carmarthen, auctioneer, of the one part," &c. It -was held that, although if the affidavit were taken alone, the description of the residence of the grantor would be insufficient, yet the defect might be cured by reference to the bUl of sale. {Jones v. Karris, 41 L.J., Q.B. 6 ; L.R., 7 Q.B. 157 ; Ex parte Mackenzie, Re Bent, 42 L.J., Bkcy. 25.) But, where the affidavit contains an actual misdescription of the residence or occupation, it is bad, notwithstanding they may be correctly described in the bill of sale. {Murray V. Mackenzie, 44 L. J., C.P. 313 ; L.E., 10 C.P. 625 ; Brodrick v. Scale, L.R., 6 C.P. 98 ; 40 L.J., C.P. 130.) The description of residence and occupation to be contained in the affidavit must be such as fits the person at the time of giving the bill of sale, not at that of filing it ; it is immaterial that he has changed one or both in the inteiTal. {London and Westminster Loan Company v. Chase, 12 C.B., N.S. 730 ; 31 L. J., C.P. 314.) Where the bill of sale is executed by two grantors, one only of whom is in possession of the goods, it is not sufficient that the affidavit give a description of the one so in possession. {Hooper v, Farmenter, 10 W.R. 648.) A trading company may give a bill of sale to secure a debt, although the power to do so is not expressly conferred by the articles of a'Ssociation. And, in such a case, no statement of its residence or occupation need be given in the bill of sale or the affidavit, nor is it necessary to state the residences or occupations of the directors, who sign as such, and not as attesting witnesses. {Shears v. Jacobs, 35 L.J., C.P. 241; Befell V. White, 36 L.J., C.P. 25 ; L.R., 2 C.P. 144.) 3. Description of the residence and occupation of 152 ON THE REGISTRATION the'attesting witness. — The description, in the aflS.da- vit, of the witness to the execution of the bill of sale must he such as to enable a man readily, and without difficulty, to find out who he is, the object being to famish the means for anyone to apply to him to ascertain, if necessary, the bond fides of the transaction. (Lamb v. Bruce, 45 L.J., Ex. 538.) It would seem, in fact, that the same exactness of description of residence and occupation is required in the case of the attesting witness, as in that of the grantor ; for the same words ia the Act refer to the witness as to the grantor, and the observations before made as to describing the grantor must, therefore, be taken as applicable to the witness ; indeed, many of the cases cited have arisen upon the sufficiency of the description of the witness. Where the bill of sale contains the residence and occupation of the attesting witness, the affidavit, if made by the attestiag witness, will be sufficient, if it contain his name, without adding his residence and description, provided there is a clear reference to those matters in the bill of sale. {Eas parte Mackenzie, Be Bent, 42 L.J., Bkcy. 25.) If the deponent says, " I am the attesting witness to the said bill of sale, and my residence and occupation therein set forth is the true description of my residence and occupation," that is sufficient. {Per Pollock, C.B., in Banbury v. White, 32 L.J., Ex._ 258.) But, if the bill of sale contain a trufe description of the attesting witness, while the affidavit made by him contains an incorrect description of himself, though referring to himself as the same person as the attesting witness, the description is bad. Thus, a bill of sale was attested by J.S,, described properly as " clerk to W.F., a solicitor, of 21 Bedford Row, W.C," but the affidavit purported to be made by " J.S., of 21 OF BILLS OF SALE. 153 Bedford Row, Holbom, gentleman," and concluded thus : " I further say that the name or signature J.S., snhscribed to the said indenture and bill of sale, as attesting witness to the execution thereof, is in my own handwriting, and I am a gentleman." The affidavit was held to be insufficient. [Brodrick v. Scale, L.R., 6 C.P. 98 ; 40 L. J., C.P. 130.) The affidavit should state clearly who was the attesting witness, but ia Routh v. Roublot (28 L.J., Q.B. 240), it was held that the affidavit will be valid if, on comparison with the bill of sale, it appear to have been made by the attesting witness to the bill, although the affidavit does not expressly state that the deponent was the attesting witness. If there are two attesting witnesses to the bill of sale, the affidavit must contain a proper description of both, for if there be no description of one of them, the bill of sale will be void. {Nicholson v. Cooper, 27 L.J., Ex. 393 ; PickardY. Marriage, 45 L.J., Ex. 594 ; L.R., 1 Ex. D. 364.) Clerical errors in the affidavit or the hill of sale. — Any important error in the copy of the bill of sale, or the affidavit, which would tend to deceive the world, will invalidate the instrument. But a mere clerical error, not of any importance to the notoriety of the transaction, will not affect it. So, that where in the copy of a bill of sale, which was filed, the name of the grantee was inaccurately spelt, it was held of no importance, though the court expressed an opinion that if the error had been made in the name of the grantor, the case would have been differ- ent. {Gardnor v. Shaw, 19 W.R. 753.) And, where an original bill of sale, and the copy filed, stated, in the recital, the consideration as £100, but, by mis- take, in the operative part as £1,000, and in all other parts the sum was correctly described, it was held 154 ON THE EEGISTKATION that the error in the operative part was clerical, and could be amended. {Elliott v. Freeman, 7 L.T., N.8. 715.) In the jurat of an affidavit of the execution of a bill of sale, the date was written 1860, instead of 1861, and it was held that this might be amended. {Hollingsworth v. White, 10 W.E,. 619.) And, where the affidavit set forth that the bill of sale was executed on the 17th of February, 1806, circumstances showing that it was a clerical error for 1876, it was held not to invalidate the bill of sale. {Lamb v. Bruce, 24 "W.E,. 645 ; 45 L.J., Ex. 538.) But, where the affi- davit omitted to state the description and occupation of the grantor, and of each of the attesting witnesses, an application to have the bill of sale and the affida- vit taken o£E the file, for the purpose of having this omission rectified, was refused ; the proper course being to file a new bUl of sale and affidavit, with an endorsement thereon referring to the first bill of sale, and a statement to the efEect that each of the biUs of sale was made for the same purpose, and relates to the same transaction, but that, by reason of an irregu- larity in the affidavit of execution of the first bill of sale, it had become necessary to file the second bill of sale and affidavit. {Ee O'Brien, 10 Jr. C.L. Eep. App. XXXIII.) Practical instructions for filing bill of sale and affi-. davit. — Before the expiration of twenty- one days after making the security, procure an affidavit of the exe- cution of the bill of sale, to be made by the attesting witness, or either of such witnesses, if there be more than one. The affidavit will be made in the form No. VII. in the Appendix of Precedents, given at the end of this work. Let it be sworn before a judge, or a commissioner for taking affidavits ; take it, with a true copy of the bUl of sale (the original can be taken, if desired, but this is not generally advisable), to the OF BILLS OF SALE. 155 office of tlie Masters of the Queen's Bencli Division of the High Court of Justice in the Temple ; pay the fee, and the officer will file the instruments. Of course, if there he a schedule to the hill of sale, that, or a true copy, must be filed at the same time. Proof of filing of hills of sale and affidmits thereof. — The Act itself requires the hill of sale and affidavit to be filed at the same time. The book containing a list of bills of sale, required to be kept under section 3 of the Act, is of such a pubHc nature, that a certified copy is admissible in evidence to prove the time at which the affidavit was filed, as well as the time at which the bill of sale was filed. (GrrindellY. Brendon, 28 L.J., C.P. 333.) But the production of a bill of sale, with a certificate of registration attached, is not evidence that an affidavit was filed at the same time ; a certified copy of the affidavit must also be produced. {Masonv.Wood, 45 L.J., C.P. 76 ; L.R., 1 C.P.D. 63.) Renewing registration. — By 29 & 30 Vict., c. 96, s. 4, the registration of a biU of sale must be re- newed every five years, or it wUl cease to be of any effect. By section 5, the renewal is to be effected by some person filing, in the office of the Masters of the Queen's Bench Division, an affidavit, stating the date of the bill of sale, and the names, residences, and occupations of the parties thereto, as stated therein, and also the date of the registration of the bill of sale, and that it is stiU a subsisting security. And the masters shall thereupon number such affidavit, and renumber the original biU of sale or copy filed in the said office with a similar number. By section 6, such affidavit of renewal shall bear a five shilling stamp, and may be in the form given in the schedule to the Act. The duties of a master of the Queen's Bench Division as to the affidavit filed on the renewal of a bill of sale are ministerial, and it is not his duty 156 ON THE SEGISTRATION to inquire wlietlier tlie affidavit satisfies the require- ments of the Act. {Needham v. Johnson, 15 "W.R. 346 ; 8 B. & S. 190.) Book of particulars to he kept hy masters of Queen' ^ Bench Division. — The third section of the Act provides for numbering bills of sale and keeping certam books of particulars thereof. By section 7 of 29 & 30 Vict,, c. 96, however, it is provided, that instead of the books directed to be kept by the third section of the principal Act, there shall be kept at the office of th§ Masters of the Queen's Bench Division one book only, in which shall be fairly inserted, as and when such bills of sale or copies or affidavits of renewal are respectively filed, the name, residence, and occupa- tion of the person by whom the bill of sale was made or given, or, in case the same was made or given by any person under or in the execution of process, then the name, residence, and occupation of the person against whom such process was issued, and, also, the name of the person or persons to whom, or in whose favour, the said bill of sale was given, together with the number affixed to the said bill of sale or copy ; the whole of the said particulars shall be entered accord* ing to the form given in a schedule to the Act, and the said book, and the bUl of sale and affidavit, maybe searched and viewed upon payment of one shilling. An office copy or extract from the bill of sale may be had, on payment of sixpence for every seventy-two words. The officer is entitled to receive for his trouble in filing and entering every bill of sale, or a copy there- of, the fee of one shilling. (17 & 18 Yict, c. 36, s. 4.) Entering satisfaction of a bill of sale. — ^A judge of the Queen's Bench Division of the High Court of Justice may order a memorandum of satisfaction to be written upon any bill of sale or copy thereof re- spectively as aforesaid, if.it shall appear to him that OF BILLS OF SALE. 157 the debt (if any), for whicli such bill of sale is given as security, shall have been satisfied or discharged. (17 & 18 Vict., c. 36, s. 6.) For the purpose of entering up satisfaction the debtor should obtain a certificate fi-om the creditor acknowledging the satisfaction of the claim ; and an affidavit must be made before a judge of the Queen's Bench Division, verifying the certificate, and the fact that the debt for which the bill of sale was given as a security has been paid or discharged. On the pro- duction of these documents, the judge will make the order accordingly. The judge's clerk will draw up the order, and, on taking it to the office of the Masters of the Queen's Bench Division, the officer will endorse the satisfaction on the biU of sale or copy filed. 158 ON THE PREPARATION CHAPTER VIII. On the preparation of bilk of sale. It is hoped tliat the foregoing Chapters, coupled with the Precedents hereafter given, will enable the reader to understand the nature of a hill of sale and the rights, and also the risks, of the holder of such a security, from other persons having or acquiring claims upon goods comprised in it, and, further, to comprehend the precautions to be observed in framing and acting upon the clauses of such an instrument. It does not, therefore, seem necessary, in conclusion, to do more than briefly draw attention to two of the most vital considerations to the validity of a bill of sale. We have seen that a duly registered biU of sale, where possession is retained by the grantor, is good against his execution creditors, if such possession be consistent with the terms of the deed, or the nature of the transaction ; but that, where the bill of sale is given by a trader, and the goods are of such a nature that, being left in his possession, the law would regard him as reputed owner thereof (see ante, Chapter v.), there are no means by which the goods can be prevented from passing to the trustee in bankruptcy of the grantor, in case he should become bankrupt while they are allowed to remain in his possession. Devices, more or less successful, have, as we have before (Chapter VII.) noticed, been resorted to, to avoid regis- tration, and also to secure the goods against the trustee in bankruptcy ; such as a succession of bills of OF BILLS OF SALE. 159 sale, an agreement for a future bill of sale, &c. ; but tbese devices are always dangerous, would always be more or less tainted with fraud, and are not, therefore, to be recommended. "We consider it safer, therefore, to adopt the broad rules of numberless decisions, and point out to those entrusted with the framing of bills of sale by way of mortgage : — 1st. That to have the security good against execution creditors, the possession of the grantor must be made consistent with the terms of the deed ; and, 2nd, that if the grantor be a trader, in order to make it good in the event of his becoming bankrupt, the grantee should be empowered to take possession and seU on default in payment of the money secured, either on demand, or after a very short notice, say, for instance, twenty-four hours. If the power to seize and sell is in case the grantor does not " immediately upon demand thereof" pay the sum secured, " immediately " would imply after such reasonable time as would allow a man to go to his bankers, or the like, for the money, or otherwise comply with the demand. {Wharlton v. Kirkwood, 22 W.R. 93 ; Brighty v. Norton, 32 L.J., Q-B. 38 ; Toms V. Wilson, ib. 382 ; 4 B. & S. 442 ; Massey v. Sladm, 38 L. J., Ex. 34 ; L.R., 4 Ex. 13 ; :Ex parte Trevor, He Burghardt, 45 L.J., Bkcy. 27 ; L.R., 1 Ch. D. 297 ; as to a power to seize and sell " upon default in payment," see Albert y. Grosvenor Invest- ment Company, 37 L. J., Q.B. 24 ; 8 B. & S. 664 ; L.R., 3 Q.B. 123.) The power to seize and sell must be strictly executed. Where there was a power to distrain, in case the moneys secured should not be paid " on demand," it was held that a demand on the wife of the grantor was not sufficient. {B eld- ing V. Bead, 34 L.J., Ex. 212 ; Massey v. Sladen, supra, per Oleasby, B.) If such a power, as before suggested, be omitted, the grantee wdl be precluded o2 160 ON THE PKEPARATION by the terms of the deed from taking the goods, out of the possession of the grantor, notwithstanding he may know that bankruptcy is impending, untU. it is too late to prevent the title of the trustee attaching. After a liquidation petition has been filed, and a receiver appointed, who has taken possession, the holder of a registered bill of sale has no right to remove the goods out of the receiver's possession. {Ex parte Cochrane, Re Mead, L.E,., 20 Eq. 282; 44 L.J., Bkcy. 87.) Description of the parties. — The observations before made (ante, pp. 144 — 151) will show the care which ought to be exercised in describing the grantor in a bill of sale. The same exactness of description is not requisite in the case of the grantee ; any description which identifies him is sufficient. Thus, a bill of sale to L. and Company was held a good assurance to the persons using that style and firm. {Maughan v. Sharpe, 12 W.E. 1057.) Description of the chattels. — ^Words of description more extensive than the intention of the parties should be avoided. An assignment of all the grantor's "personal property," or "personal estate," would include leaseholds, as well as mere personal chattels. ( White V. Munt, L.E., 6 Ex. 32 ; Debenham v. Dighy, 21 W.E.. 359 ; but see Harrison v. Blackburn, 34 L.J., C.P. 109.) So, it seems the word " goods," and equally the word " chattels," taken simplyand without qualification, comprise the whole personal estate of every description (other than chattels real) of the grantor {Ryall v. Rolle, 1 Atk. 182; Kendall v. Kendall, 4 Euss. 370) ; so would the word " effects." (Hogan v. Jackson, Cowp. 304 ; Campbell v. Prescott, 15 Ves. 507.) But these general terms, if coupled with other words of a limited signification, will be restrained to things ejusdem generis. (Rawlings v. OF BILLS OF SALE. , 161 Jennings, 13 Ves. 39 ; Sarrison v. Blackburn, 34 L. J., C.P., 109.) It is not necessary that the chattels to be assigned should be specifically enumerated in the deed, or that an inventory or schedifle of them should be annexed. {Jarman v. WooUoton, 3 T.R. 622.) It is sufficient to use a general description, if parol evi- dence can be produced to show what property was intended to be referred to. (2 Taylor on Evidence, s. 1082.) And where a man assigned all his house- hold goods, the particulars whereof were stated to be set forth in an inventory annexed, the fact of no inventory being found was held not to invalidate the deed, but extrinsic evidence was admitted for the pur- pose of identifying the chattels. (England v. Downs, 2 Beav. 522.) Where goods are assigned by reference to a schedule, the words of description used in the deed, however broad and inclusive, will generally be controlled by the specific enumeration in the schedule. Thus, an assign- ment of all the furniture in a certain house, and comprised in a schedule annexed, was held to include goods mentioned in the schedule, but not placed in the house until after the date of the assignment. {Sutton V. Bath, 1 F. & F. 152. ) On the other hand, in Wood V. Rowcliff'e (20 L.J., Ex. 285), a biUof sale purported to assign to G-. " all the household goods and furniture of every kind and description whatsoever in the house No. 2 Meadow Place, more particularly mentioned and set forth in an inventory or schedule of even date and given up to the said G. on the exe- cution thereof." The inventory did not specify all the goods and furniture, and it was held that the bill of sale only operated as an assignment of such as were specified in the schedule, that is, such as answered the two-fold description of being in the house and ia the inventory. 162 ON THE preparation" But this danger, it seems to the authors, may be avoided, by adding words to the effect that the schedule is to be considered a further description and not a limitation. For instance, the goods may be described as all the goods and furniture in a specified house, " which goods and furniture are intended to be more particularly enumerated in the schedule hereunder ■written, but which said schedule is added by way of further description and identification, and is not in- tended to Hmit or circumscribe the general description hereinbefore contained," or words similar in effect. Terms, not so strong or decided as these, have been held to make the schedide a further description, and not a limitation. (See Baker v. Bichardson, 6 W.E. 663.) But care must be taken to use such general terms of description in the body of the deed as will linclude everything mentioned in the schedule. Thus, in a mortgage of a foundry, and all the-fixtures, machinery and working plant, &c., thereon, " more particularly specified in an inventory of even date," but no men- tion was made in the deed of " stock in trade," it was held that stock in trade specified in the inventory would not pass, as the inventory could not enlarge the operation of the deed. {Ex parte Jardine, 44 L.J., Bkcy. 58 ; L.E., 10 Ch. App. 322.) When an article is described, other articles attached to it, and, though not forming part of the article described, yet in actual use with it, or essential for the proper employment of it, will pass without special mention. So that, by an assignment of looms on certain premises, and " other effects and things thereto belonging, more particularly set forth in the schedule," articles used therewith, they having been upon the premises, were held to pass, although the looms only were mentioned in the schedule. {Cort OF BILLS OF SALE. 163 V. 8agar, 27 L.J., Ex. 378; and see Fisher on Mortgages, 29.) Wten a schedule is used, it must be filed at the same time as the bill of sale. And it should be ■written on the same paper or parchment as the deed, or^ firmly annexed to it, otherwise a (question may arise whether it may not become chargeable with a separate stamp duty. (See 33 & 34 Yict., c. 97, tit. " Schedule ;" and Dyer v. Green, 1 Ex. 71.) It may be convenient here to note the case of Crrem v. Attenborough (34 L. J., Ex. 88), which decided that, inasmuch as the goods pass upon the execution of the bill of sale, the subsequent alteration or destruc- tion of the original deed wiU not matter, and, pro- vided a true copy is filed, it will be valid and effectual under the Bills of Sale Act. The circumstances were that, at the time of the execution of the bill of sale, a rough inventory of the goods which had been pre- viously made on several loose sheets and appended to the bill, remained fixed thereto. A few days after- wards a fair copy of the inventory was made out and signed, and, with the consent of both parties to the bill of sale, the rough inventory was disannexBd and the fair copy affixed instead. Both the rough copy and the fair copy agreed. A copy of the bill of sale and of the inventory was duly filed, and it was held effectual. But it is suggested that the decision would have been otherwise if the original bill of sale, with the fair copy of the inventory, had been filed, for, as the disannexing of the inventory was a mutilation and alteration of the deed, the matter filed would be neither the original bill of sale or a true copy thereof, within the terms of the Act. Attestation. — ^Although the BUls of Sale Act re- quires that the affidavit to be filed with a bill of sale shall contain a description of every attesting witness 164 ON THE PBEPARATION to a bill of sale, yet attestation is not necessary to the validity of tlie bill of sale. (Deffell v. Miles, 15 L.T., N.S. 293.) Stating the consideration. — Care must be taken in preparing the deed to state truly the consideration paid by the purchaser or mortgagee, and upon which the (ui valorem duty will have to be paid, as the omission to do so will expose the parties, who prepare the deed, to penalties, though any mis-statement of the consideration neither avoids the' deed, nor affects its admissibility in evidence. Stamps. — ^A bill of sale .should be stamped accord- ing to the amount of the consideration appearing on the face of the deed. The want of a proper stamp does not, however, affect the validity of the deed, but merely renders it inadmissible in evidence, except in criminal proceedings, or for some collateral purpose, as, for example, to prove fraud or an act of bankruptcy, consisting in the execution of the deed itself. And even in a Court of Civil Judicature the instrument may, upon the payment of certain penalties, be ad- mitted m evidence. (33 & 34 Vict., c. 97, s. 16.) It is provided by the Stamp Act, 1870 (33 & 34 Yict., c. 97, s. 67), that a " copy of a bOl of sale is not to be filed in any court, unless the original, duly stamped, is produced to the j)roper officer." A similar provision was contained m the previous Stamp Act, and, upon the construction thereof, it was held that the section was a direction to the officer, cast- ing on him the duty of seeing that the bill of sale is duly stamped, and that the mere absence of a proper stamp did not invalidate the registration, otherwise regular, but that the deed might be re- ceived in evidence and due effect given to it, when, on payment of the penalty, it had been properly stamped. {Bellamy v. Saull, 32 L.J., Ci.B. 366.) But, as the OF BILLS OF SALE. 165 officer will refase to register an improperly stamped deed, attention to the stamp will prevent delay and disappointment. An absolute biU of sale is cliargeable as a convey- ance with an ad valorem stamp, on the consideration money ; and a conditional bill of sale to secure money is subject to the same stamp duty as a mortgage. Therefore, in the case of an absolute biU of sale, the following stamps must be used : — ' Where the amount or value of the £. s. d. consideration for the sale does not exceed £5 Exceeds £5 and does not exceed £10 10 15 „ „ 20 25 „ „ 50 75 „ „ 100 125 150 175 200 225 „ „ 250 275 300 For every £50 and also for fractional part of £50 of amount or value ... ... ... 5 If the bill of sale be conditional, or by way of mortgage, the following duties become payable :^ Where the instrument is the only or principal or primary security for The payment or repayment of money £. s. d. Not exceeding £25 8 15 20 25 60 75 100 125 150 175 200 225 250 275 300 every such 1 1 2 2 5 7 10 12 15 17 2 5 7 10 166 ON THE PREPARATION £, 8. d. £50 1 3 100 2 6 150 3 9 200 5 250 6 3 300 7 6 Exceeding £25 and not exceeding £50 50 100 150 200 250 300 For every £100, and also for any frac- tional part of £100 of such amount 2 6 If it be a collateral, or auxiliary, or additional, or substituted security, or by way of further assurance for the above mentioned purpose, where the principal or primary security is duly stamped : — For every £100, and also for anyfractional part of £100 of the amount secured. . . 6 The following section in the Stamp Act should be borne in mind, where a bill of sale is a security, not only for the money actually advanced at the time, but for further advances : " A security for the payment or repayment of money to be lent, advanced or paid, or which may become due upon an account current, either with or without money previously due, is to be charged, where the total amount secured, or to be ultimately recoverable, is in any way limited, with the same duty, as a security for the amount so limited." And, further, " where such total amount is imlimited, the security is to be available for such an amount only as the ad valorem duty impressed thereon extends to cover." (33 & 34 Vict., c. 97, s. 107.) An unstamped, or insufficiently stamped instru- ment may be stamped after the execution thereof, on payment of the unpaid duty, and a penalty of £10, and also, by way of^ further penalty, where the unpaid duty exceeds £10, of interest on such duty, at the rate of £5 per cent per annum, from the day upon OF BILLS OF SALE. 167 which the instrument was first executed, up to the time when such interest is equal in amount to the unpaid duty. But the comanissioners may, if they thmk fit, at any time within twelye months after the first execution of any instnmient, remit the penalty or penalties, or any part thereof. (Section 15.) Stamp duties upon bills of sale should be indicated by impressed, and not by adhesive stamps. Where, a bill of sale assigned certain horses as a security, and also such other horses as might be substituted for them in the business of the assignor, provided the names and descriptions of such sub- stituted horses were endorsed, it was held that such endorsement, being merely for the purpose of identifica- tion, did not require an additional stamp. [Barker v. Aston, 1 F. & F. 192.) 168 APPENDIX. 17 & 18 VICT., c. 36. An Act for preventing Frauds upon Creditors hy secret Bills of Sale of personal Chattels. [lOth July, 1854.] WHEREAS frauds are frequently committed upon creditors by- secret bills of sale of personal chattels, whereby persons are enabled to keep up the appearance of being in good circumstances and possessed of property, and the grantees or holders of such bills of sale have the power of taking possession of the property of such persons, to the exclusion of the rest of their creditors : For remedy ■whereof, be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assem- bled, and by the authority of the same, as follows : I. Every bill of sale of personal chattels made, after the passing of this Act, either absolutely or conditionally, or subject or not subject to any trusts, and whereby the grantee or holder shall have power, either with or without notice, and either immediately after the making of such bill of sale, or at any future time, to seize or take possession of any property and effects comprised in or made subject to such bill of sale, and every schedule or inventory which shall be thereto annexed or therein referred to, or a true copy thereof, and of every attestation of the execution thereof, shall, together with an affidavit of the time of such biU of sale being made or given, and a description of the residence and occupation of the person making or giving the same, or, in case the same shall be made or given by any person under or in the execution of any process, then a description of the residence and occupation of the person against whom such process shall have issued, and of every attesting witness to such bill of sale, be filed with the officer acting as clerk of the docquets and judgments in the Court of Queen's Bench, within twenty-one days after the making or giving of such bill of sale (in like manner as a warrant of attorney in any personal action given by a trader is now by law required to be filed), other- wise such biU of sale shall, as against all assignees of the estate and effects of the person whose goods or any of them are comprised in such bill of sale under the laws relating to bankruptcy or insol- vency, or under any assignment for the benefit of the creditors of such person, and as against all sheriffs officers and other persons seizing any property or effects comprised in such bill of sale in the execution of any process of any court of law or equity authorizing the seizure of the goods of the person by whom or of whose goods such bill of sale shall have been made, and against every person on ■whose behalf such process shall have been issued, be null and void to all intents and purposes whatsoever, so far as regards the pro- perty in or right to the possession of any personal chattels com- prised in such bill of sale, which at or after the time of such bank- ruptcy, or of filing the insolvent's petition in such insolvency, or of the execution by the debtor of such assignment for the benefit of his creditors, or of executing such process (as the case may be), and after the expiration of the said period of twenty-one days, 17 & 18 YicT., c. 36. 169 shall be in the possession or apparent possession of the person making such biU of sale, or of any person agaiast whom the process shaU have issued under or in the execution of ■which such bill of sale shall have been made or given, as the case may be. II. If such bill of sale shaU be made or given, subject to any defeasance or condition or declaration of trust not contained in the body thereof, such defeasance or condition or declaration of trust shall, for the purposes of this Act, be taken as part of such bill of sale, and shall be written on the same paper or parchment on which such bill of sale shall be written, before the time when the same or a copy thereof respectively shall be filed, otherwise such bill of sale shall be null and void to aU intents and purposes, as against the same persons and as regards the same property and effects, as if such bill of sale or a copy thereof had not been filed according to the provisions of this Act. III. The said officer of the said Court of Queen's Bench shaU cause everj' biU of sale, and every such schedule and inventory as aforesaid, and every such copy filed in his said ofSce under the pro- visions of this Act, to be numbered, and shall keep a book or books in his said office, in which he shall cause to be fairly entered an alphabetical list of every such bill of sale, containing therein the name, addition, and description of the person making or giving the same, or in case the same shall be made or given by any person under or in the execution of process aa aforesaid, then the name, addijiion, and description of the person against whom such process shall have issued, and also of the person to whom or in whose favour the same shall have been given, together with the number, and the dates of the execution, and filing of the same, and the sum for which the same has been given, and the time or times (if any) when the same is thereby made payable, according to the form contained in the schedule to this Act, which said book or books, and every bill of sale or copy thereof filed in the said office, may be searched and viewed by all persons at all reasonable times, pay- ing to the officer for every search against one person the sum of sixpence and no more ; and that, in addition to the last mentioned book the said officer of the said Court of Queen's Bench shall keep another book or index, in which he shall cause to be fairly inserted, as and when such bills of sale are filed in manner aforesaid, the name, addition, and description of the person making or giving the same, or of the person against whom such process shall have issued, as the case may be, and also of the persons to whom or in whose favour the case shall have been given, but containing no further particulars thereof ; which last mentioned book or index all per- sons shall be permitted to search for themselves, paying to the officer for such last mentioned search the sum of one shilling. IV. The said officer shall be entitled to receive, for his trouble in filing and entering every such biU of sale or a copy thereof as aforesaid, the sum of one shilling and no more ; and such officer shaU render a like account to the Commissioners of Her Majesty's Treasury, and the said Commissioners shall have the dike powers in every particular with respect to such account, and the amount of remuneration of such officer, and with respect to any surplus of 170 APPENDIX. the fees received by tiiTn as it is provided by the seventy-fifHi chapter of the statute passed in the thirteenth and fonrteentli years of the reign of Her present Majesty with respect to the of&cers of the Court of Common Pleas therein mentioned. V. Any person shall be entitled to have an oiEce copy or an extract of every bill of sale, or of the copy thereof filed as afore- said, upon paying for the same at the like rate as for office copies of judgments in the said Court of Queen's Bench. VI. It diaJl be lawful for any Judge of the said Court of Queen's Bench to order a memorandum of satis&ction to be written upon any bill of sale or copy thereof respectively as aforesaid, if it shall appear to him that the debt (if any) for which such bill of sale is given as security shall have been satisfied or discharged. YU. In construing this Act the following words and expressions shall have the meanings hereby assigned to them, unless there be something in the subject or context repugnant to such constmc- tions ; (that is to say.) The expression " bill of sale " shall include bills of sale, assign- ments, transfers, declarations of trust without transfer, and other assurances of personal chattels, and also powers of attorney, authorities or licenses to tsike possession of personal chattels as security for any debt, but shall not include the following documents ; that is to say, assignments for the bene- fit of the creditors of the person making or giving the same ; marriage settlements ; transfers or assignments of any ship or vessel or any share thereof ; transfers of goods in the ordinary course of business of any trade or calling ; bills of sale of goods in foreign parts or at sea ; bills of lading ; India war- rants ; warehouse keepers certificates : warrants or orders for the delivery of goods, or any other documents used in the ordinary course of busrness as proof of the possession or control of goods, or authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented : The expression " personal chattels" shall mean goods, furniture, fixtures, and other articles capable of complete transfer by delivery, and shall not include chattel interests in real estate, nor shares or interests in the stocks, funds, or securities of any government, or in the capital or property of any incorporated or joint stock company, nor choses in action, nor any stock or produce upon any farm or lands which by virtue of any covenant or agreement, or of the custom of the country, ought not to be removed from any farm where the same shall be at the time of the making or giving of snch bill of sale : Personal chattels shall be deemed to be in the apparent posses- sion" of the person making or giving the bill of sale, so long as they shall remain or be in or upon any house, mill, warehouse, building, works, yard, land, or otiber prenuses occupied by him, or as they shaU be used and enjoyed by him in any place whatsoever, notwithstanding that formal poEsession the reof may have been taken by or given to any other person. Yin. This Act shall not extend to Scotland or Ireland. 17 & 18 VICT., c. 36. 171 "It it a o o u ^■' p2 172 APPENDIX. 29 & 30 VICT., c. 96. An Act to amend the Bills of Sale Act, 1854. [10th August, 1866.] WHEREAS an Act of Parliament was passed in the IStli year of the reign of Her present Majesty, chapter 36, intituled An Aot for preventing frauds upon creditors by seeret bills of sale of personal ihattels, and it is expedient that the said Act, herein-after referred to as the " Prinoipai Act," should he amended : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. The Prinoipai Act and this Act shall, as far as is consistent with the tenor of such Acts, be construed together. 2. The Principal Act may be cited as " The Bills of Sale Act, 1854," a;nd this Act may be cited as " The Bills of Sale Act, 1866." 3. The filing of a bill of sale, or a copy thereof, with the affidavit required by the Prinoipai Act, is herein-after referred to as the registration of a bill of sale. 4. The registration of a bill of sale under the Principal Act shall, dijring the subsistence of such security, be renewed in manner herein-after mentioned once in every period of five years, com- mencing from the day of the registration, and, if not so renewed, such registration shall cease to be of any efiect at the expiration of any period of five years during which a renewal has not been made as hereby required, subject to this provision, that where a period of five years from the original registration of any bill of sale imder the Principal Act has expired before the first day of Jamuary, One thousand eight hundred and sixty-seven, such bill of sale shall be as valid to all intents and purposes as it would have been if this Act had not been passed, if auoh registration be renewed in manner aforesaid before the first day of Jamim-y, One thousand eight hundred and sixty-seven. 5. The registration of a bill of sale shall be renewed by some person filing in the oflSoe of the masters of the Court of Queen's Bench (being the oflicera acting as clerk of the docquets and judg- ments in the said Court) an affidavit stating the date of such bUl of sale, and the names, residences, and occupations of the respective parties thereto as stated therein, and also the date of the registra- tion of such biU of sale, and that such bill of sale is still a subsisting security, and such masters shall thereupon number such affidavit and renumber the original bill of sale or copy filed in the said .office with a similar number. 6. Every affidavit renewing the registration of a bill of sale shall bear an adhesive common law stamp of the value of five shillings, and may be in the form given in Schedule A. to this Act, and no, further fee shall be payable on filing such affidavit. 29 & 30 VICT., c. 96. 17a 7. After the passing of this Act, instead of the hooks directed to be kept by the third section of the Principal Act, there shall he kept at the said office one book only, in -which shall be fairly inserted, as and -virhen such bills of sale or copies as required by the Principal Act, or affidavit of renewal as required by this Act, are respectively filed, the name, residence, and occupation of the person by whom the biU of sale was made or given, or in case the same was made or given by any person under or in the execution of process, then the name, residence, and occupation of the person against whom such process was issued, and also the name of the person or persona to whom or in whose favour the said bill of sale was given, together with the number affixed to the said bill of sale or copy as directed by the Principal Act or by this Act (as the case may be) ; and the date of the said bill of sale or copy, and of the registration thereof, and the date of the filing the said affidavit of renewal, and all such particulars, shall be entered according to the form given in Schedtde B. to this Act ; and the said book, and every biU of sale or copy and affidavit filed as aforesaid, may be searched and viewed by all persons at all reasonable times upon payment for every search against one person of , the fee or sum of one shilling and no more, which fee shall be paid by a conmion law stamp. 8. Any person shall be entitled to have an office copy of such affidavit of renewal as is required to be filed under this Act upon paying for the same at the like rate as for office copies of bills of sale filed under the Principal Act. 9. Any affidavit required by the Principal Act or this Act may be sworn before pne of the masters of the Court of Queen's Bench. 10. All enactments for the time being in force relating to com- mon law stamps shall apply to the stamps to be provided for the purposes of tlus Act. 11. This Act shall not extend to Scotland or Ireland. SCHEDULE A. I A. B. of do swear that a bill of sale, bearing date the day of 18 [insert the date of the hill of sale}, and made between [insert the names, ^c., of the parties to the bill of sale as in the original bill of saW], and which said bill of sale [or " and a copy of which said biU of sale " (as the case may be)} was filed in the Court of Queen's Bench on the day of 18 [ins^t the date of filing}, and is still a subsisting security. Sworn, &o. 174 APPENDIX. p a M o OS e ll id d v |l 1^ ^1 O "OS'S PRECEDENTS. 175- PRECEDENTS. No. I. Absolute hill of sale of goods. This Indentuue, made the day of 187 , Between Jolm Jones, of 20 Street, in the city of London, Fishmonger, of the one part, and Thomas Smith, of 16 Street, in the county of Middlesex, Grocer, of the other part. Wheeeas the said John. Jones has contracted with the said Thomas Smith for the absolute sale to him of the goods, chattels and effects in and about his dwelling- house, situate and being No. 20 Street, aforesaid, which are mentioned and specified in the schedule hereunder written, at or for the price or sum of One hundred pounds. Now this Indenthee WITNESSETH, that in consideration of the said sum of One hundred pounds by the said Thomas Smith to the said John Jones paid, on or before the execution of these presents (the receipt of which said sum the said John Jones doth hereby acknowledge), he, the said John Jones, doth hereby assign unto the said Thomas Smith, his executors, administrators and assigns. All the goods, chattels and' effects in or about the said dwelling-house of him the said John Jones, situate and being No. 20 Street aforesaid, which are mentioned and specified in the schedule hereunder written. And aJI the right, title, interest, property, claim and demand of the' said John Jones, in and to the said goods, chattels and premises and every part thereof, To hate, hold, receive, take and enjoy the said goods, chattels and effects, and aU and singular other the premises hereby assigned, or intended so to be, with their appurtenances, tmto the said Thomas Smith, his executors, administrators and assigns, absolutely. And the said John Jones, doth hereby for himself, his heirs, executors and administrators, covenant with the said Thomas Smith, his executors, administrators and assigns, that he, the said John Jones, now hath good right to assign the said goods, chattels and effects hereby assigned, or intended so to be, in manner aforesaid. And that it shall he lawful for the said Thomas Smith, his executors, administrators and assigns, at all times here- after, to have, hold, use, occupy, possess and enjoy the said goods, chattels and effects, hereby assigned or intended so to be, without any let suit, hindrance, disturbance, claim or demand whatsoever, of, from, or by biTn the said John Jones, or of, from, or by any person or persons whomsoever. 176 APPENDIX. In witness ■whereof the said parties to these presents have here- unto set their hands and seals the day and year first ahove written. Signed, sealed, and deKvered by the said \ John Jones, in the presence of Henry f Eobinson, of Moorgate Street, in j th6 city of London, solicitor's clerk. ) The Schedule to which the foregoing Indenture refers. {Zist of the goods and effects.) Memorandum of delivery of possession to he endorsed on the above Indenture. Be it Eembmbebed that on the day of 187 , being the day and year first within written, a delivery was made by the within named John Jones to the within named Thomas Smith, of the goods, chattels and effects within mentioned or referred to, a chair being delivered to the said Thomas Smith in the name of the whole in the presence of me [or us]. Witness, Henry Robinson, of Moorgate Street, in the city of London, solicitor's clerk. No. II. Bill of sale hy way of mortgage of goods and effects specified in a schedule. This Indenture, made the day of 187 , Between Thomas Eoe, of , in the county of , Land Surveyor (hereinafter called the mortgagor), of the one part, and John Doe, of , in the county of , Auctioneer (hereinafter called the mortgagee), of the other part. Whereas the said mortgagee has agreed to lend to the said mortgagor the sum of £ , upon having the repayment thereof, with interest after the rate herein- after mentioned, secured to him in the maimer hereinafter appearing. Now THIS Indenture witnesseth that in consideration of tie sum of £ on the execution of these presents, to the said mortgagor paid by the said mortgagee (the receipt whereof the said mortgagor doth hereby acknowledge), he, the said mortgagor, doth hereby assign unto the said mortgagee, his executors, administrators and assigns, all and every the furniture, goods, utensils, imple- ments and chattels which are now in, about and belonging to the messuage or dwelling-house situate and being at' , in the county of , now in the occupation of the said mort- gagor, and which are intended to be hereinafter particularly mentioned, enumerated and described in the schedule hereunder PRECEDENTS. 177 written ; But the said schedule is added by ■way of further descrip- tion and not to abridge the other words of description contained in these presents ; And all the right, title, interest, property, claim and demand of the said mortgagor in and to the said goods, chattels and premises, and every part and parcel thereof ; TO HAVE, HOLD, rcccive, take and enjoy the said goods, chat- tels and premises hereby assigned, or expressed and intended 80 to be, unto the said mortgagee, his executors, administra- tors and assigns, as his and their own property and effects. Provided nevertheless, and it is hereby declared and agreed by and between the said parties to these presents, that in ease the said mortgagor, his executors or administrators, shall and do well and truly pay, or cause to be paid, unto the said mort- gagee, his. executors, administrators or assigns, the said sum of £ , with interest thereon at the rate of £5 per centum per annum, on the : — day of , 187 , or at such earlier day or time as the said mortgagee, his executors, administrators or assigns, shall appoint for the payment thereof, in and by a notice in writing to be given to the said mortgagor, his executors or administrators, or left at his or their last or usual place of abode at least twenty-four hours before the day or time so to be appointed for payment as aforesaid, and in the meantime pay unto the said mortgagee, his executors, administrators or assigns, interest on the .said sum of £ , at the rate aforesaid, by equal half-yearly payments on the — ■ day of , and the day of in every year, but so that if the said principal sum shall be paid on any other day than one of the said half-yearly days, interest thereon shall be paid up to and at the time of such payment of the said principal sum ; then and in such case, these presents, and every article, clause and thing herein contained, shall cease, determine, and be absolutely void, anything hereinbefore contained to the con- trary in anywise notwithstanding. And the said mortgagor doth hereby for himself, his heirs, executors, administrators and assigns, covenant with the said mortgagee, his executors, administrators and assigns, to pay unto him or them the aforesaid sum of £ , with interest thereon, at the time and in manner hereinbefore appointed for payment thereof. And it is hereby declared and agreed by and between the said parties to these presents, that after default shall be made by the said mortgagor, his executors or administrators, in payment of the said sum of £ and interest, or any part thereof, contrary to the tenor and effect of the before mentioned proviso, then, and in such case, it shall be lawful for the said mortgagee, his executors, administrators or assigns, peaceably and quietly to receive and take into his and their possession and thence- forth to hold and enjoy all and every the goods, chattels and premises hereby assigned or intended so to be. And also to sell and dispose of the same and every part thereof for such price or prices as can be reasonably had or gotten for the same ; and to receive and take and ' give effectual discharges for the monies 178 APPENDIX. to arise by such sale thereof, and thereby and therewith ia the first place to retain and to reimburse himself and themselves, the said mortgagee, his executors, administrators or assigns, all costs, chai'geB and expenses, which he or they may incur or be put unto, in and about making any such sale or sales, and also in and about the receipt and recovery of the said sum of £ and interest respectively, and, in the next place, to retain and to reimburse himself and themselves, the said mortgagee, his executors, administrators or assigns, the said sum of £ and the interest thereon, or so much and such part thereof as shall then remain unpaid and unsatisfied, and from and after full payment and satisfaction of such costs, charges and expenses, sum and sums of money as aforesaid, to render to and account for the surplus (if any) of the money arising from such sale or sales as aforesaid unto the said mortgagor, his executors or administrators. And it is hereby declared and agreed by and between the said parties to these . presents, that until default shall happen to be made in payment of the said principal sum of £ , at the day or time hereinbefore appointed for payment thereof contrary to the tenor and effect of the proviso hereinbefore contained, it shall be lawful for the said mortgagor, his executors or administrators, to hold, make use of and possess the said goods, chattels and premises hereby assigned or intended so to be, without any manner of hiudrance or disturb- ance of or by him the said mortgagee, his executors, administrators or assigns. And the said mortgagee doth hereby for himself, his heirs, executors and administrators, covenant and agree with the said mortgagor, his executors and administrators, that he, the said mortgagee, his executors or administrators, shall not nor wiU, until default shall be made in payment of the said sum of £ and interest, or some part thereof, on some or one of the days or times limited for payment thereof in and by the proviso for the redemp- tion hereinbefore contained, bring, commence or institute any action, suit or process, against the said mortgagor, his executors or administrators, for recovery of the said debt or any part thereof. In witness, &c. Signed, sealed and delivered by ) the said, &o. j The Schedule to which the foregoing Indenture refers. {Ztst of the goods and effects.) No. III. Bill of sale hy way of mortgage of present and after acquired furniture in a dwelling-house, to secure a present loan and further advances. This Indenture, made the — ■ day of 187 , Between A.B., of, &c. (hereinafter called the mortgagor,) of the one part, PRECEDENTS. 179 and CD., of, &o. (hereinafter called tlie mortgagee), of tlie other part. Whereas the said mortgagee heing in present need of the sum of £ hath applied to the said mortgagee to lend him the said sum of £ , and such other sums not exceeding £ which he, the said mortgagor, may hereafter require, ■which th^ said mortgagee hath agreed to do upon having the assignment or other assurance herein- after contained. Now this Indentoke wiTNESSETn,that in pursuance of the said agreement, and in consideration of the sum of £ to the said mortgagor, in hand, now paid by the said mortgagee (the receipt whereof is hereby acknowledged), he, the said mortgagor, DOTH hereby assign unto the said mortgagee, his executors, administrators and assigns. Ail and singular the furniture, goods, fixtures, chattels and other the effects now being in, about and upon the messuage and premises, known as [describe it], and also all or any other goods, chattels and effects which hereafter may come into or upon, or be about the aforesaid house and premises, or any other premises of the said mortgagor, during the time any money may be due, under and by virtue of liiese presents, together with all benefits, advantages and emoluments to arise therefrom or thereunto, or in anywise apper- taining, And all the estate, right, title, interest, property, claim and demand whatsoever, both at law and in equity, of the said mortgagor, of, in and to the said premises and any or every of them respectively, TO have and to hold the said furniture, goods, fixtures, chattels and effects, and other the premises hereby assigned unto the said mort- gagee, his executors, administrators and assigns, absolutely, but subject as hereinafter mentioned ; PnovinED always, that in case the said mortgagor shall pay to the said mortgagee the said sum of £ , and all other monies intended to be secured by these pre- sents, with interest for the same, after the rate of £ per centum per annum, upon demand made thereof in writing by the said mortgagee, and do and shall in the meantime, until the repayment of the said sum of £ , and all other monies intended to be secured by these presents, pay or cause to be paid to the said mortgagee, his executors, administrators or assigns, interest thereon after the rate of £ per centum per annum, by equal half-yearly pay- ments on the day of and the day of in every year, such interest to be considered as accruing and be- coming due from day to day, and payment thereof to be accelerated by any demand of the principalmoniesintended tobe hereby secured ; then and in such case these presents and every part thereof shall cease and become void. And it is hereby also agreed and declared that the said mortgagee, his executors, administrators or assigns, shall be at liberty to add to the sum secured by these presents any further advance or advances he or they may make to the said mort- gagor (not exceeding in the whole the sum of £- ), and also any money or monies he or they may from time to time pay or advance for his benefit, or for the better securing of these presents, and the true intent and meaning hereof; and the said mortgagee shall have 180 APPENDIX. the same remedies in all respects for the repayment and recovery thereof as are herein provided, as if such payments and advances had originally constituted an integral part of the said loan. Pro- vided ALSO, and it is hereby declared and agreed, that if the said mortgagor, his executors or administrators, shall make default in payment of the said loan, or any part thereof, at the times and ia the manner herein provided, or neglect to perform any of the covenants contained in these presents, the vphole amount of money secured by these presents shall be then immediately due and pay- able, and it shall be lawful for, but not obligatory on the said mortgagee, his executors, administrators or assigns, without any further consent or concurrence, and notwithstanding the dissent or non-concurrence of the said mortgagor, his executors, administrators or assigns, to take possession of the said furniture, goods, fixtures, chattels and effects, and thenceforth to hold and enjoy the same to and for his and their own absolute use and benefit, and also to sell and dispose of the same, at such times, in such manner and under such conditions, as the said mortgagee, his executors, administrators or assigns, shall think fit, with liberty for him or them to buy in the same or any part thereof, and to rescind any contract for sale and afterwards to sell such of the same which shall be bought ia and comprised in such contract, without being liable for any loss occasioned thereby, and no person dealing with him or them in and about such sale, shall be required to see to the application, or be answerable for the misapplication of the purchase money or any part thereof, or be required to ascertain that any default in the payments secured by, or perfonnance of, the covenants of these presents, has been made, or that any money is due upon the security of these presents. And it is hereby also agreed and declared that the said mortgagee, his executors, administrators or assigns, shall hold the monies to arise fi'om any sale, in pursuance of the aforesaid power, upon trust, in the first place, thereout to pay all charges or incum- brances which shall or may affect or attach to the goods, furniture, chattels and effects (if he shall think fit so to do), and also the expenses of, and incident to taking and holding possession of the said goods and of and incident to such sale or sales or otherwise in relation to the premises (including five pounds per centum commis- sion, travelling expenses, costs of advertising, and all and any other law costs and charges and expenses, notwithstanding the said mort- gagee may personally sell the same). And in the next place to apply such monies in or towards the satisfaction of the monies for the time being owing on the security of these presents. And then to pay the surplus (if any) unto the said mortgagor, his executors, administrators or declared assigns. Pbovided aiso, that in the event of a sale of the said goods not tslking place, the said mortgagee, his executors, administrators or assigns, shall not be obliged to accept the said sum of £ and other monies hereby intended to be secured, or so much thereof as shall remain due, without being paid also all costs, charges, damages, expenses and payments of any kind, which PRECEDENTS. 181 he or they may have been put to, or incurred in giving effect to the true intent and meaning of these presents. And that in the event of the said last mentioned costs, charges and damages not being paid to the said mortgagee, his executors, administrators or assigns, or in the event of the said mortgagor permitting himself to be sued for any debt or debts, or if any writ of fieri facias, distress for rent, or other proceedings of any nature, be levied or taken against the said goods hereby assigned, or in the event of the said mort- gagor doing any act or deed whereby he shall render himself liable to be made or become a bankrupt, or instituting proceedings for liquidation by arrangement or oompoqjtion with creditors, or shall be arrested upon, or unprisoued under any process, civil or criminal, or in the event of the said mortgagor not producing to the said mortgagee, his executors, administrators or assigns, when de- manded by him or them, the receipt or receipts for the insurance against fire or tempest of the said goods and effects, or the receipt or receipts for the rent and taxes, payable by the said mortgagor in respect of any house or houses or premises where the said goods shall be or be placed, for the quarter immediately preceding the day when the receipt or receipts shall be so demanded, or in the event of the said mortgagor or any other person doing, omitting, neglect- ing or refusing to get done any act, matter or thing, whereby the said mortgagee, his executors, administrators or assigns, shall con- sider that the security given by these presents shall be jeopardized, it shall or may be lawml for the said mortgagee, his executors, ad- ministrators or assigns, or his or their agents, forthwith to enter the said house and premises, and to sell and dispose of the said goods and effects in manner aforesaid, notwithstanding the time for pay- ment by the said mortgagor of the principal sum of £ and other monies intended to be hereby secured, or any part thereof, shall not have arrived, and to deal with the said goods and apply the proceeds arising from the sale thereof, as if the time for payment of the said sum of £ and other monies intended to be hereby secured, according to the covenant in that behalf hereinafter contained, had elapsed and default had been made in pay- ment thereof. Provided always, that the said mortgagee, his executors, administrators and assigns, shall not be answerable for any voluntary losses which may happen in the exercise of the aforesaid power and trusts, or to the said trust funds and premises ; and further that the said mortgagee, his executors, administrators or assigns, and his or their servants and agents, ma^,. from time to time, whilst any monies shall be due and remain unpaid upon the security of these presents, enter into and upon any house or premises in or upon which the said furniture, goods and effects shall or may be deposited or found and remain in possession thereof in or upon such house or premises for such time as he or they may think fit, or remove the same to other premises at his or their discretion. And also from time to time relinquish possession of the same and afterwards retake possession thereof, without Q 182 APPENDIX. invaKdating the security of the powers hereby made and given or herein contained, and for all or any of the purposes aforesaid to break open any outer or inner doors, windows, gates, fences, or other obstructions. And that the said mortgagee, his executors, administrators or assigns, and his and their servants or agents, shall not be deemed or considered a, trespasser or trespassers, in con- sequence of exercising all or any of the powers or trusts here- inbefore granted or contained. And this deed may he pleaded in bar, and shall be deemed, taken and considered to be a good defence to any action, or other proceeding that may be had or taken against the said mortgagee, his heirs, executors, administrators or assigns, for any act done in relation to or by virtue of these presents. And the said mortgagor doth hereby, for himself, his heirs, executors and administrators, covenant with the said mortgagee, his executors, administrators and assigns, that he, the said mortgagor, his executors or' administrators, shall and will pay, or cause to be paid, unto the said mort- gagee, his executors, administrators or assigns, the monies secured by these presents, with interest for the same respectively, at the times and in the manner aforesaid, without any deduction or abatement, according to the true intent and meaning of these presents. And LASTLY, the said mortgagor, for himself, and his executors, adminis- te-ators or assigns, doth hereby warrant and defend, and from time to time, and at all times hereafter, shall and will at his and their own costs, warrant and defend, the furniture, goods and effects hereby assigned or otherwise assured unto the said mortgagee, his executors, administrators or assig-ns, against all persons whomso- ever. In witness, &c. No. IV. Bill of sale hy way of mortgage of present and future household effects, farming stock and crops, to secure an antecedent debt and future liabilities. This Indenture, made the day of 187 , Between A.B., of, cSfcc, of the one. part, and CD., of, &o., of the other part. Wbeeeas the said A.B. is now indebted to the said CD. in the sum of £• for goods sold and delivered, and the said CD. hath de- manded payment of or security for the said sum, and the said A.B., not being prepared to pay the same, hath agreed to secure the repayment thereof, and also of any further monies in which the said A.B. may hereafter become indebted, to the said CD., and interest for the same respectively in manner hereinafter mentioned. Now this Indenture witnesseth, that in pursuance of the said agreement in this behalf, and in consideration of the premises, and also in con- PRECEDENTS. 183 sideratiou of five shillings sterling to the said A.B., now paid hy the said CD., the receipt whereof is hereby acknowledged, he the said A.B.,doth hereby assign unto the said CD., his executors, administrators and assigns, aU and every the household goods and furniture, stock in trade, plate and plated articles, household linen, books, ohma, and other household effects whatsoever, horses, saddles, harness, and other accoutrements. Aud also all the implements of husbandry, crops of com and grain, and Hve and dead stock, and other goods, chattels and effects, now being, or which shall here- after during the continuance of this security be, in, upon or about the messuage or dwelling-house and farm called occupied by the said A.B., and situate at aforesaid, and the bams, stables and other outbuildings and lands belonging thereto or held there- with. And axl the estate, right, title, interest, claim and demand of the said A.B., of, in, to or upon the said several premises hereby assigned or intended so to be, to have, hold, take, receive and enjoy the said several premises hereby assigned unto the said CD., ms executors, administrators and assigns, absolutely. Pro- vided NEVERTHELESS, that iu casc the said A.B., his heirs, executors or administrators, shall, on demand made thereof in writing by the said CD., his executors, administrators or assigns, well and truly pay, or cause to be paid, unto the said CD., his executors, adminis- trators or assigns, the said sum of £ and also all other monies (if any) in which the said A.B. shall hereafter become indebted to the said CD. ; and do and shall, in the meantime, until the repay- ment of the said principal sum of £ and other monies (if any) well and truly pay, or cause to be paid, unto the said CD., his executors, administrators or assigns, interest thereon at the rate of £ per centum per annum by ec[ual half-yearly payments on the day of and the day of in every year (the interest for the said other monies being computed from the time, or respective times, when the debt thereof shall be incurred), and also a. proportional part of such interest for the fractional period of the half year (if any) which shall elapse between the last half-yearly day of payment and the demand, so to be made as aforesaid, of the said principal sum of £ and other monies (if any) as aforesaid, such proportional part to be paid immediately such demand is made, and such several payments aforesaid to bemade without any deduction (except for income tax) ; then these presents shall be absolutely void, anything hereinbefore contained to the contrary notwithstanding. And the said A.B. doth hereby for himself, his heirs, executors and administrators, covenant with the said CD., his executors, administrators and assigns, that he, the said A.B., his heirs, executors or administrators, shaU and will, on demand made thereof as aforesaid, pay, or cause to be paid, unto the said CD., his executors, administrators or assigns, the said sum of £ and also all other monies (if any) in which the said A.B. shall hereafter become indebted to the said CD., and interest for the same respectively, after the rate and in manner q2 184 APPENDIX. aforesaid, -without any deduction (except as aforesaid). Akd it is hereby agreed and declared that after default shall be made by the said A.B., his executors, administrators or assigns, in payment of the said sum of £ and other monies (if any) and interest, or any part thereof respectively, contrary to the tenor and effect of the before mentioned proviso, then and in such case it shall be lawful for the said C.D., his executors, administrators or assigns, peaceably and quietly to receive and take into his and their own possession, and thenceforth to hold and enjoy, all and every the premises hereby assigned, or expressed so to be, includiag any household goods and furniture, stock in trade, and other goods, chattels and effects which shall or may from time to time be substituted in lieu of the said household goods and furniture, stock in trade, goods, chattels and effects, or any part thereof, or which shall for the time being be found in or about the messuage or dwelling-house and premises now in the occupation of the said A.B., or which may at any time hereafter during the continuance of this present security be .in the occupation of the said A.B., either in the lifetime or after the decease of the said CD., and. also to sell and dispose of the same premises, and every or any part thereof, for such price or prices as can be reasonably had or gotten for the same, and to receive and take and give effectual discharges for the monies to arise by such sale or sales thereof, and to stand possessed of such monies upon the trusts following (that is to say) : — TJfon tbtjst, in the first place, to retain, satisfy and discharge all costs, charges and ex- penses incidental to these presents, and also all costs, charges and expenses which the ^id CD., his executors, administrators and assigns, may incur or be put unto, in and about the receipt and recovery of the said sum of £ and other monies (if any), and the interest thereof respectively, and in the next place to satisfy, pay, deduct or retain unto the said CD., his executors, adminia- trators or assigns, the said principal sum of £ and other monies (if any), and the interest thereof respectively, or so much and such part or parts thereof respectively as shall then remain unsatisfied, and from and after full payment and satisfaction of such costs, charges and expenses, and monies and interest as aforesaid, to render to and account for the surplus (if any) of the money arising from such sale or sales as aforesaid unto the said A.B., his executors, administrators or assigns. And it is hereby deolaked and agebbd by and between the said parties to these presents, that until defeult shall happen to be made in payment of the said principal sum of £ and other monies (if any) and interest, contrary to the tenor and effect of the proviso hereinbefore contained, or until default shall be made in payment of the interest of the said principal sum of £ and other mjpiies (if any), or some part or parts thereof, on some one of the days or times hereinbefore appointed for payment thereof, contrary to the same proviso, and also until, in respect of the said interest, demand thereof in writing shall be made by the PKECEDENTS. 185 said CD., his executors or administrators or assigns, unto tte said A.B., his executors or administrators, or left at his or their last place or places of ahode in England, req[uiring the payment of such interest, it shall and may he lawful for the said A.B., his executors or administrators, to hold, make use of and possess the said premises herehy assigned or intended so to he, without any hindrance or disturhance of or hy the said CD., his executors, administrators or assigns. Pkotided lastly, that the total principal monies to he secured hy or ultimately recoverahle hy virtue of these presents,. shall not exceed the sum of . {This amount should he stated and an ad valorem stamp in respect thereof impressed.^ In witness, &c. No. V. Bill of sale hy way of mortgage, — more ample form, con- taining clauses for insurance, Sfc. This Indentuke, made the day of 187 , Between A.B., of, &c. \the mortgagor'], of the one part, and CD., of, ■ &c. \the mortgagee], of the other part. Whekeas the said CD. ha& agreed to lend! the said A.B. the sum of £ , upon having'' the- repayment thereof, with interest, secured to him in manner herein- after appearing. Now this Indenture witnesseth, that in consideration of the sum of £ to the said CD., on or hefore the execution of these presents, paid hy the said A.B. (the receipt of which said sum of £ the said A.B. doth herehy acknow- ledge), HE, the said A.B., doth herehy for himself, his heirs, execu- tors and administrators, covenant with the said CD., his executors, administrators and assigns, that he, the said A.6., his heirs, executors, administrators or assigns, will, on demand, pay to the said CD., his executors, administrators or assigns, the sum of £ , with interest for the same, after the rate of £ per cent per annum, without any deduction (except for income tax) ; and will, until such demand shall he made, pay to the said CD., his execu- tors, administrators or assigns, interest for the said principal sum of £ , or for so much thereof as shall, for the time heing, remain unpaid, at the rate of £ per cent per annum, such interest to he computed from the date of these presents, and to he considered as accruing due from day to day, to he paid on demand, or, if no demand shall have heen made, then hy equal half-yearly payments, on the day of and the day of without any deduction (except for income tax) . And this Inden- ture ALSO WITNESSETH, that, for the consideration aforesaid, the said A.B. doth hereby assign unto the said CD., his executors and administrators, all the furniture and other household effects and ornaments specified in the schedule hereunder written, and all other the furniture and other household effects and ornaments which now are, or during the continuance of this security, may he, in, 186 APPENDIX. upon or about the dwelling-house of the said A.B., being No. — Street, aforesaid, aud all the estate and interest of the said A.B., in, to or out of the same premises. To have and to hold the said premises unto and to the use of the said CD., his execn- tois, administrators and assigns, subject, nevertheless, to the proviso for redemption hereinafter contained (that is to say). Provided ALWAYS, and it IS HEREBY DECLARED, that if the Said A.B., his heirs, executors, administrators or assigns, do and shall, immediately on demand being made by notice in writing to that effect, to be delivered to him, or left at his usual place of residence or abode, pay unto the said CD., his executors, administrators or assigns, the sum of £ , together with interest thereon, at the rate of £ per cent per annum, up to the time of such demand, without any deduction (except for income tax), and shall in the meantime, and imtil the said sum of £ shall have become payable under this proviso, pay, without deduction (except for income tax), interest on so much of such last mentioned sum, as shall, for the time being, remain unpaid, after the rate of £ per cent per annum, on demand, or if no demand shall have been made, by equal half- , yearly payments, on the — ■ day of and the — day of until such principal sum shall be paid ; then the said CD., his executors, administrators or assigns, shall, at the request and costs of the said A.B., his executors, administrators or assigns, re-assign the said premises hereby assigned unto the said A.B., his executors and administrators, and also cause a memorandum of satisfaction of this security to be written on these presents. Pro- vided ALSO, AND IT IS HEREBY PTIRTHER DECLARED, that Until such default in payment of mortgage money or interest as aforesaid, it shall be lawful for the said A.B., his executors or administrators, to retain possession of the premises hereby assigned. And the said A.B. doth hereby for himself, his heirs, executors, adminis- trators and assigns, covenant with the said CD., his executors, administrators and assigns, that so long as any money shall remain owing on the security of these presents, he, the said A.B., his executors, administrators or assigns, wiU not remove any of the premises comprised in this security from the said dwelling-house, without the previous consent in writing of the said CD., his executors, administrators or assigns, except for necessary repairs ; and wiU replace any articles damaged or worn out, with others of equal value, at least. And will, at all times, keep the premises hereby assigned in good repair. And that the said CD., his executors, administrators or assigns, and his and their agents, may, at all reasonable times, so long as any money shall remain owing on this security, enter into tide said dweUing-house to view the condition of the premises, and to take inventories and schedules of the same, and of any want of repair or dilapidation, to give to, or leave for the said A.B., his executors, administrators or assigns, notice in writing, and upon such notice being given or left, the matter complained of shall be forthvrith amended by the said A.B., PRECEDENTS. 187 his executors, administrators or assigns. And pxjbtheb, that the said A.B., his executors, administrators or assigns, -will, during the continuance of this security, keep the premises, and all other articles for the time heing subject thereto, insured from damage hy fire, in the sum of £ , at the least, and will, on demand, produce the receipt for the current year's premium for such insurance. And will, at the option of the said CD., his executors, administrators or assigns, either expend the monies received by virtue of such insurance in replacing or restoring the articles destroyed or damaged, or apply such monies in or towards the discharge of the monies for the time being owing under or by virtue of these presents.* And that, if default shall be made in keeping the said premises so insured, it shall be lawful for the said CD., lus executors, adminis- trators or assigns, to insure, and keep insured, the said premises, and to pay such sums of money as may be necessary for that pur- pose ; and that the said A.B., his executors, administrators or assigns, will repay to the said C.D., his executors, administrators or assigns, all monies so expended for that piirpose by him or them, with interest thereon, at the rate of £ per cent per annum, from the time of the same respectively having been advanced or paid, and that, until such repayment, the same shall be a charge upon the said premises hereby assigned. Peovided always, and IT IS HBKEBY DECLARED, that immediately on such default in pay- ment of principal money or interest as aforesaid, it shall be lawM for the said CD., his executors, administrators or assigns, to enter into possession of the premises hereby assigned, and to sell the same or any part or parts thereof, either by public auction or private contract, and to give effectual receipts for any purchase money, and to do all other acts and things for completing any sale which the said CD., his executors, administrators or assigns, may- think fit. And it is hereby declared, that the said CD., his executors, administrators or assigns, shall apply the purchase money of the premises sold, in the first place, in defraying the expenses of, and incidental to, the said sale, and then in or towards satisfac- tion of the monies, for the time tieing due on this security, and shall pay any surplus to the said A.B., his executors, administrators or assigns. Provided always, and iv is hereby declared, that, upon any sale, purporting to be made in pursuance of these S resents, no purchaser shall be bound to inquire, whether such efault, as hereinbefore is required, has been made, or whether any money is due on this security, or, in anywise, to ascertain the pro- priety or regularity of such sale, or be affected by express notice that any such sale is irregular or improper. Provided also, and it is hereby further declared, that the said CD., his executors, administrators or assigns, shall not be answerable or responsible, xmder or by means of the trusts or provisions of these presents, for any other monies than he or they shall actually receive, nor for • See leea v. WhUeley, 86 L.J., Oh. 112. 188 APPENDIX. any losses which may arise to the said trust monies, other than hy or through his or their -wilful default or neglect. And the said A.B. doth hereby for himself, his heirs, executors and administrators, covenant with the said CD., his executors, administrators and assigns, that he, the said A.B., has good right to assign the_ pre- mises hereby assigned, Ann that the same shall be quietly enjoyed by the said CD., his executors, administrators and assigns, in manner aforesaid : and that the same are free from any charge, incumbrance, claim or demand whatsoever : and that he, the said A.B., his executors and administrators, and every other person claiming any interest in the said premises or any of them, will, at aU times hereafter (at the cost of the said A.B., his executors, administrators or assigns, whilst any equity of redemption shall be subsisting, and afterwards of the person or persons requiring the same), execute and do every such lawful assurance and thing for farther or better assuring all or any of the said premises unto the said CD., his executors, administrators and assigns, and enabling him and them to obtain possession of, and quietly enjoy the same, as by him or them shall be reasonably required. In witness, &c. The Schedule above referred to. No. VI. Transfer of a hill of sale hy endorsement* This Indenture, made the day of 18 , Between the within named CD., of the one part, and E.F., of, &c., of the other part. Whereas the within mentioned principal sum of £ , together with £ for interest thereon from the day of-; last; is owing to the said CD. on the security of the within written indenture. And whereas the said E.P. has agreed to pay to the said CD. the said sums of £ and £ (matmg together £ ), upon having a transfer of the said principal sum and interest, and the securities for the same in manner hereinafter appearing. Now this Indenture witnesseth, that in pursuance of the said agreement, and in consideration of £ this day paid to the said CD. by the said E.F. (the receipt whereof the said CD. doth hereby acknowledge), he, the said CD., doth hereby assign unto the said E.F., his executors, administrators and assigns. All that the principal sum of £ now owing to the said CD. on the security of the within written indenture as aforesaid. And all interest due and to become due for the same, and the benefit of all securities for the same.f And all the right, * Thia precedent may easily be adapted to a transfer by separate deed. t No power of attqmey is necessary, as by 36 & 87 Vict., u. 66, s. 25, sub- sec. 6, suon a debt is assignable at law. PRECEDENTS. 189 title, interest, claim and demand whatsoever of the said CD., in, to or out of the same premises. To hold all. the premises hereinbefore assigned unto the said E.F., his executors, adminis- trators and assigns absolutely. And this Indenture also WIT- NESSETH, that, for the consideration aforesaid, the said CD. doth hereby assign unto the said E.F., his executors, administrators and assigns, All the furniture, goods, chattels and effects comprised in and expressed to be assigned by the within written indenture, with their rights and appurtenances. And all the right, title, interest, claim_ and demand of the said CD. in, to or out of the same premises. To hold all the said premises hereinbefore lastly assigned unto the said E.F., his executors, administrators and assigns, subject, nevertheless, to such right or equity of redemption as is subsisting therein, under or by virtue of the within written indenture. And the said CD. doth hereby for himself, his heirs, executors and administrators, covenant with the said E.F., his executors, administrators and assigns, that the said sum of £ , with interest thereon from the said day of , is now owing to him, the said CD., on the security of the within written indenture, and that he, the said CD., hath not done, or knowingly suffered or been party or privy to anything whereby the said principal sum, interest and premises hereby assigned, or any part thereof respectively, are or can be impeached, incumbered or affected in anywise howsoever. In witness, &c. No. VII. Affidavit of execution of hill of sale. In the High Court or Justice. Queen's Bench Division. I, W. X. , of in the county of Solicitor, make oath and say: 1. That the paper waiting, hereunto annexed, marked A., is a true copy of a bill of sale, and of every schedule or inventory thereto annexed, or therein referred to, and of every attestation of the execution thereof, and that the said biU of sale was made and given on the day it bears date, being the day of in the year of our Lord One thousand eight hundred and , and that I was present and did see A.B. [the mortgagor], in the said bUl of sale mentioned, and whose name is signed thereto, sign and execute the same on the said day of in the year aforesaid, and that the said A-B. resides at in the county of and is a . 2. And I further say that the name W.X. set and subscribed as the witness attesting thedue execution thereof,isofthe proper handwriting of me this deponent, and that I reside at and am a SoUoitor. Sworn at this day of One \ thousand eight hundred and . J Before me, 190 APPENDIX. No. VIII. Affidavit on renewing registration of bill of sale. In the High Ooxiet of Justice. Queen's Bench Division. I, Gr.H., of in the county of , make oath and say: That a hill of sale, hearing date the day of One thousand eight hundred and , and made hetween A.B., of, &c., of the one part, and CD., of, &c., of the other part, and a copy of which said bill of sale was filed in this Honourable Court on the day of One tiiousandeighthundredand , is still a subsisting security. Sworn at, &o. No. IX. Affidavit of second re-registration of bill of sale. In the High Court of Justice. Queen's Bench Division. I, G.H., of in the county of , make oath and say : That a biU of sale, bearing date the day of One thousand eight hundred and , and made between, fc. [names, residences and descriptions of the pa/rtieal, and a copy of which said biU of sale was filed in this Honourable Court on the day of One thousand eight hundred and , and which was re- registered, under the "Bills of Sale Act, 1866," on the day of One thousand eight hundred and , is still a subsisting security. Sworn at, &c. No. X. Consent to order to enter satisfaction. In the Hibh Court op Justice. Queen's Bench Division. I hereby consent to an order, that a memorandum of satisfac- tion be written upon the copy of the indenture or biU of sale of per- sonal chattels, given for securing the sum of £ , bearing date the day of One thousand eight hundred and , made between A.B., of, &c., of the one part, and me CD., of, &c., of the other part, and filed on the day of One thousand eight hundred and , the debt for which such bill of sale was given as a security having been satisfied. Dated the day of One thousand eight hundred and INDEX. INDEX. A. ACT OF BANKRUPTCY, defined (32 & 33 Vict., c. 71, s. 6), 95, 96. common to all debtors, 95. arising from fraudulent assignments, 96. ■witlnn what period available, 98. notice of an, effect of on grantee's right to take possession, 78, 85. wliat is, 81-85. intention to commit, not notice of, 81. ADVANCE, fresh, what is a substantial, 109. made with intent to compound a felony, not necessarily an offence against the bankrupt laws, 112. AFFIDAVIT, accompanying bUl of sale, requisites of, 143. description of grantor in, 144-151. as to residence, 145. occupation, 146. attesting witness in, 151, 153. where there is more than one, 153. error in, if important, invalidates, 163. merely clerical, wiU not affect, 153. flUng, practical instructions for, 154. proof of, 154, 155. false statement in, a misdemeanour, 144. duties of Master of Queen's Bench Division as to, 166. AFTER ACQUIRED PROPERTY, in goods and chattels, formerly not assignable at Icm, 15. assignment of, effect of an, 16. power to seize, may extend to crops, &c.,on after taken land, 18. goods on after built premises, 18. licence to seize, is revocable until acted upon, 18. must be strictly executed, 169. intention to include, will not be inferred, 19. contract to assign, operation of, 16. E 194 INDEX. AGREEMENT, to give bill of sale, difference between and bill of sale, 139. qu& agreement, need not be registered, 139. sum advanced upon, considered as advanced on security of the bill of sale, 119. if relied upon as conferring title must be registered, S, 139. must be absolute, HI. not a good consideration where bill of sale purposely postponed, 139. bill of sale given in pursuance of, when good, 140. for hire of furniture need not be registered, i. APPARENT POSSESSION, what is meant by, 131-135. " occupation" necessary to make, 135. by maker, upwards of twenty-one days after giving bill of sale, necessitates registration, 136. goods delivered by grantor to a bailee stiU in grantor's, 131. when deemed to be in grantor's, 131. vendor's, 132. formally seized under an execution remain in debtor's, 134. APOTHECARIES, who are traders as, within schedule to B.A., 1869, 44. APPRAISEMENT, absence of an, is a badge of fraud, 36. APPROPRIATION, specific, of chattels by vendor to vendee, 60. ASSIGNMENT, of property not in existence formerly invalid at laio, .15. valid only in equity, 15. now passes property when ac- quired to assignee, 16. of all debtor's property void as an act of bankruptcy, 98-120. though to trustees for credit- rs generally, 98. but not voidable by consenting creditor, 98. never acted upon, 98. no fraud intended, 98. with colourable exception, 100, 101, 120. ' within what period voidable, 98. unless for an equivalent, 103, 104. for valuable consideration, 104. to cover jrr-' nt or future as well as past ad- vances, lOo, i08, 109, 114, 116. to bm&Jide purchaser for a fair price, 106. INDEX. 195 ASSlGTifMETST— continued. of all trader'3 effects, with power to seize after acquired pro- perty, 116. of part merely of trader's effects, 120-126. lawful to seoire particular creditor, 120. unless expressly to prefer, 120. void, if in contemplation of bankruptcy, with fraudulent intent, 120. accompanied by circumstances of actual insolvency, 123, 124. general rule as to, 121. under pressure, if bond fide, not an actiof bankruptcy, 121. which, if operated upon, will stop assignor's trade, generally deemed an act of bankruptcy, 123. unless debtor be not thereby rendered insolvent, 125. of machinery, 124, 125. passes articles used therewith, 162. ASSUKANCES, conferring equitable or legal title require registration, 5. ATTESTATION, not necessary to the validity of a bill of sale, 164. ATTESTING WITNESS, description of, in sjffidavit, &o., 143, 151-163. ATTOENEY, POWERS OF, when included in expression " bill of sale," 3. » B. BANKERS, who are traders as, within B.A., 1869, 44. BANKRUPT, what property of, divisible amongst his creditors, 41. BANKRUPTCY, laws, objects of, 41. period to which it may relate back, 76, 81. acts of, under 32 & 33 Vict., c. 71, s. 6, 96. fraudulent removal of goods in contemplation of, effect of, 77. commencement of, defined, 76, 76, 81. " time of such," meaning of, in Bills of Sale Act, s. 1, 131. trustee in, relation back of title of, 76, 76, 81. unregistered bill of sale void against, 140. how claim of, may be defeated, 143. S««ACTS OF BANKRUPTCY. r2 196 INDEX. BANKRUPTCT ACT. -See STATUTES. BEASTS OF THE PLOUGH, are conditionally exempt from distress, 21. BILL OF LADING, is not a bill of sale within Registration Act, 7. BILL OF SALE, definition of, 1. by Statute 17 & 18 Viot., o. 36, s. 7 [see STATUTES), 3. includes only documents intended to confertitle, 3. may be absolute or conditional, 2. should advisably be made by deed, 2. must be by deed when voluntary, without actual delivery, 2. when requisite, 2. within Eegistration Act, what may be, 3-6. what is not a, 6, 7. act does not apply to ordinary mercantile trjasactions, 7- what are personal chattels within, 8-20. when void against creditors within 13 Eliz., o. 5, 24-40. may be good under 13 EHz., c. S, though made to defeat expected execution, 39. when void against trustee in bankruptcy of grantor, 41-93i as an act of bankruptcy, 94-126. registration of, 127-167. when necessary, 135. renewal of, 165. preparation of, 158-167. made in performance of agreement, 119. not necessarily invalidated by insertion therein of wrong sum, 119. of all debtor's property an act of bankruptcy, 97-120. of part of debtor's property when an act of bankruptcy, 120-126. how to judge validity of, 126. when a fraudulent preference, 86-93. unregistered, good assurance for twenty-one days, 135. given by company good against liquidator, 136. between whom good, 140. as against subsequent registered, 140, 141. consequence of avoiding, 141. prior, good against grantee in possession of subsequent, 141. should enable grantee to enter at very short notice, 143. affidavit to accompany, 143. requisites of, 143. must state time of making, 143, 144. describe residence and occupation of grantor, 143; 144-161. INDEX. 197 BILL OF SMS,— continued. affidavit to accompany — continued. must describe residence and occupation of attesting witness, 161-163. clerical errors in, will not invalidate, 153. important error in copy of, wiU invalidate, 153. filing, practical instructions for, 154. time of, 139, 154. proof of, 155. description of parties in, 144-161, 160. chattels in, 160-163. invalidated by misdescription or nondescription of grantor, 145 . by two grantors, description of one in possession insufficient, 151. alteration or destruction of original, effect of, 163. stamps on, 164-167. unstamped or insufficiently stamped, 166. of chattels absolutely exempt from distress, good against land- lord, 22. made to defeat bankruptcy law absolutely void, 40. fraudulent, may be proved so by declarations of grantor, 40. arrangements for successive renewals of, validity of, 138. difference between, and an agreement for one, 139. entering satisfaction of, 156. BONDED WAEEHOTJSE, goods in, when exempt from reputed ownership doctrine, 62, 63. BOOKSBLLEES, books left for sale with, not within reputed ownership clause, 62, 65. BROKEES, who are traders as, within B.A., 1869, 46. BUILDEES, who are traders as, within B.A., 1869, 45. c. CAEPENTEES, who are traders as, within B.A., 1869, 45. CAEELEES, who are traders as, within B.A., 1869, 46. CATTLE SALESMEN, who are traders as, within B.A., 1869, 46. CHATTELS, personal, within Bills of Sale Act, what are, 8. 198 INDEX. CEATTELB— continued. personal, generally liable to distress by landlord, 21. ■what are exempt from distress,_ 21. ' need not be specifically enumerated in bill of sale, 161. in order and disposition of grantor, on Ms bankruptcy, pass to trustee, 41. description of, in bill of sale, 160-163. Bcbedule of, sbould not be framed as a limitation, 161. effect of omitting, 161. CHOSBS IN ACTION, not generally goods and chattels within s. 15, B.A., 1869, 42, 64. CLOCKMAKERS, clocks sent to, for repair, &o., not in reputed ownership of, 39, 65. COACHBTJILDBES, custom of, to display customers' carriages excludes reputed ownership clause, 65. COMPANY, trading, may give bill of sale to secure a debt, 151._ occupation of, need not be stated in affidavit, 151. bin of sale given by, good against liquidator, 136. CONSIDERATION, must be valuable, 29. absence of, an indication of fraud, 32. untruly stated, a badge of fraud, 38. does not necessanly invalidate security, 119. must not be in such form as to defeat creditors, 33. any, superseded by proof of fraudulent intention, 33. valuable, ■will not protect deed unless also bond fide, 35. what is a, 87, 88. bon&fide purchaser for, protected, 35. assignment for, 104. adequacy of, not closely investigated by courts, 107. if an equivalent "with ■which trader might deal, 112. clerical error in statement Of, in bill of sale, 133. omission to state, 164. mis-statement of, effect of, 38, 120, 164. illegality of, effect on security, 112. CONVEYANCE, of debtor's ■whole property for past debt an act of bank- ruptcy, 94. or of part, if it defeat or delay creditors, 95. or if made voluntarily in contemplation of bankruptcy, 95. INDEX. 199 CONYEYANOE—continuea. fraudulent, void under 13 Eliz., c. 5, 24-40. voluntary, in all cases fraudulent and void against creditors, 32. COWKEEPEES, ■who are traders as, -within B.A., 1869, 46. CREDITOES, privy or consenting to fraudulent assignment cannot take advantage of 13 Eliz., c. 5, 27. secured, enactment as to (32 & 33 Vict., c. 71, s. 40), 86. conveyance by trader to trustees for benefit of, an act of bankruptcy, 98. CROPS, growing, transfers of, are not within 17 & 18 Vict., c. 36, s. 7, 8. custom; OF TEADE, excluding reputation of ownership need not be known to public jit large, 67. will rebut evidence that bankrupt was "reputed owner," 62. as regards hired furniture, 64, 66. wine bought of bankrupt and left in his cellars, 60, 65. clocks left with vendor to repair, 59, 65. carriages left with maker, 66. goods remaining in bonded warehouse of the seller, 62, 63. books left in bookseller's hands for sale, 62, 66. factors, trustees, bankers, 61. faimeTS, 65. furnished houses or lodgings, 66. pianofortes, 66. hotelkeepers and innkeepers, 66. ships in course of construction, 66. goods in process of manufacture, 67. must be proved, 67. D. " DEALING," meaning of word in s. 94, B.A., 1869, 80. DECLAEATION, statutory, of non-existence of prior security sometimes required, 142. of grantor admissible in evidence to prove biU of sale fraudu- lent, 40. 200 INDEX. DECLARATIONS OP TRUST, without transfer, included in expression " bill of sale," 3. provision as to (17 & 18 Vict., c. 36, s. 2), 129. object of, 130. interpretation placed upon, by courts, 130. do not include arrangements outside bill of sale, 130. ■what comprehended in term, 130. DEED, advantages of biU of sale by, 2. "DEFEASANCE OR CONDITION," interpretation by courts of, 129. what is a, 130. DEMAND, grantee should be empowered to take possession on default of payment on, 169. what sufficient, 159. DISPOSITIONS OF PROPERTY, fraudulent within bankruptcy laws, 94, 97. absolutely void, 26, 86, 87, 94. affecting all debtor's property, 97-120. part only, 97, 120-126. in contemplation of bankruptcy, 97. within 13 Eliz., c. 6, 24-40. by way of fraudulent preference, 86-93. DISTRESS, bill of sale may be defeated by landlord taking goods for, 21. all personal chattels liable to, unless privileged at law, 21. fixtures absolutely exempt from, 21. what chattels conditionally exempt from, 21. generally, can only be made upon premises yielding the rent, 22. fraudulent or clandestine removal of goods to avoid, 22. protection to mortgagee by marshalling proceeds, 23. transfers to avoid a, not fraudulent preferences, 91. power of, on default of payment on demand, what demand sufficient, 159. DOCUMENTS OF TITLE TO GOODS, not bills of sale within Registration Act, 7. E. EVIDENCE, of fraud, 28-38. declarations of grantor when admissible as, 40. INDEX. 201 'EVID'ENGE—cmtmmd. what necessary to prove trading, 51. required to establish reputed ownership, 58. where bankrupt originally owner, 68, 59. not originally owner, 58. presumption of reputed ownership may be rebutted by, 64, 70. of customj what required to exclude doctrine of reputed ownership, 67. of " consent of true owner," what is, 71-75. to establish fraudulent preference, what required, 87, 88, 93. extrinsic, when admitted for purposes of identifying chattels assigned, 161. of filing bill of sale and affidavit, 166. EXECUTION, bin of sale good under 13 Eliz., c. 5, though made to defeat an expected, 39. effect of, levied on goods of which debtor is only reputed owner, 77. creditors, when security good against, 169. unregistered bill of sale void against, 140. F. FALSE PEETENCE, person untruly representing chattels to be unincumbered guilty of instable, 142. EAEMERS, custom of, may exclude reputation of ownership, 65. FELONY, advance compounding a, not necessarily bad under bankrupt laws, 112. FIXTUEES, what are, within Bills of Sale Act, 9. true rule as to, 9. interest in, of owner in fee, 9, 11. tenant for years, 10, 11. " trade " and " tenant's," relaxation of rule in favour of, 10. meaning of terms, 11. removability of, test as to, 10,*11. included in a mortgage of freehold, 11. of copyhold, 13. whether legal or equitable, 12. unless expressly excluded, 12. of leaseholds, 13. when deed requires registration, 14. articles essential to employment of, pass with, 12. 202 INDEX. FIKTVUIES— continued. assignment of, distinct from land requires registration, 16. ordinarily affixed to freehold not affected by reputed owner- ship, 63, S4. FRAUD, depends upon circumstances of each case, 28. evidences of, 28-38. continuance of grantor in possession, 28-32. practically limited to ahsolute bill of sale, 30. rebutted when possession consistent with deed, 30. though not expressly provided for by deed, 31. when bill of sale by way of mortgage, 30. absence of valuable consideration, 32-36. when consideration untruly stated, 38. absence of a valuation or appraisement, 36. schedule of the goods conveyed, 38. secrecy in the transaction, 36. favours presumption of ownership remaining in grantor, 36, 37. reservation of power to mortgage, 38. third persons allowed to treat the property as still the debtor's, 38. retention of deed by grantor, 38. misrepresentation of real contract, 38. consideration, 38. proof of, supersedes any consideration, 33. PRAUDULENT CONVEYANCE, void against creditors (13 Eliz., c. 5), 24-40. and their representatives, 26. at law and in equity, 26. binding between parties and as against strangers, 26. what is a, determined by purpose and intent of maker, 28. under 13 Eliz., c. 6, also act of bankruptcy, 94. passes no property, 27. See DISPOSITIONS OF PROPERTY. FRAUDULENT PREFERENCE, rule as to, 86. enactment as to, B.A., 1869, s. 92, 86, 87. transaction amounting to, voidable by trustee, 86. though not an act of bankruptcy, 4/ there be fraud in fact, 91. what amounts to evidence of, 87, 88, 89, 93. turns on good or bad faith of both debtor and creditor, 87. burden of proof as to, is on party alleging that payment is protected, 88. INDEX. 203 FEAUDULENT PEEFEKENCE— coKiMwrf. what amounts to evidence of — contimied. is question for the jury, 89. must be voluntary and spontaneous act of debtor, 88. does not include transfer made under pressure, 89. or to secure debtor from legal process, 90, 91. in apprehension of legal proceedings, 91. to avoid a distress, 91. payment by agent to principal in ordinary course, 91. debtor pursuant to precedent con- tract, 91. of money already specifically appro- priated, 91. must be made in contemplation of bankruptcy, 92. when absolutely void, 91. voidable by trustee, 91. avoid anceof, when trustee ought not to take proceedings for, 93. FEAUDULENT EEMOVAL, of goods to avoid distress, 22. FURNITURE, agreement for hire of, does not need registration, 4. unless, in fact, a mortgage, 4. left in mortgagor's house remains in his order and disposition, 61 . even where key handed to mortgagee, 61. hired, when not in reputed ownership of hirer, 64, 65, 66. FUTURE PEOPERTY. See AFTER ACQUIRED PROPERTY. &. GIFT, with delivery, valid without writing, 1. with deferred possession requires written assignment, 1, 3. GOODS, transfers of, in course of business not bills of sale within Act, 7. in foreign parts or at sea not bUls of sale within Act, 7. GRANT. See CONVEYANCE. GRANTEE, rights of, as against grantor's landlord, 21-23. security of, may be defeated by landlord distraining, 21. goods removed by, cannot be followed bjr landlord, 22. when title of, should be perfected by registration, 3. necessary inquiries by, 142. 204 INDEX. GEANTOR, continuance in possession by, a badge of fraud, 28. retention of deed by, a badge of fraud, 38. declarations by, at execution of bill of sale admissible in evidence to prove fraud, 40. description of, 144-151. in af&davit, 144. as to residence, 145, 146. ■whsA sufficient, is question for judge, 145. as to occupation, 146-151. imperfect, 150. ambiguous, 150. omission of, 160-154. misdescription or nondesoription of, invalidates bill of sale, 145-151. examples, 145-151. possession of, must be consistent with deed, 30, 32, 159. H. HOTELKEEPBE, custom of, to hire furniture excludes reputation of owner- ship, 66. HUSBANDRY, instruments of, conditionally exempt from distress, 21. HYPOTHECATION, letter of, not a security within Bills of Sale Act, 5. I. ILLEGAL CONSIDERATION, does not necessarily invalidate security, 112. INDEMNITY, assignment of all trader's property by way of, an act of bank- ruptcy, 69. INDIA WARRANTS, not bills of sale within Act, 7. INVENTORY, absence of, a badge of fraud under 13 Eliz., c. 5, 38. not necessary to be annexed to deed, 161. reference to, in deed, effect of, where none annexed, 161. generally controls words of description in deed, 161. description of chattels in, 160, 161. INDEX. 205 mYENTOnY— continued. should be described in deed, as by way of further description only, 162. description in deed must include everything mentioned in, 162. must be filed at the same time as the bill of sale, 163. and written on same paper or parchment, 163. effect of disannexing original, and replacing by fair copy, 163. LANDLORD, of grantor, rights of grantee against, 21-23. may defeat bill of sale by distraining for rent, 21. cannot follow goods removed by grantee, 22. what may be distrained by, 21, 22. LEASE, containing licence to lessor to seize stock in default of payment of rent, requires registration, 5. LEASEHOLD, fixtures included in mortgage of, 13. assurances of, when requiring registration, 14. wiU pass trade fixtures, 14. LEASEHOLDER, interest of, in land limited, in fixtures absolute, 11. LICENCE, to take possession of personal chattels as security for a debt, 3, 5, 16. does not include mortgage with power of distress, 5. power to seize after acquired properly operated by way of, 15.^ is revocable at any time until acted upon, 15, 18. cannot be exercised after bankruptcy of mortgagor, 19. effect after execution of, 18. may be extended to crops, &c., on after taken land, 18. must be strictly executed, 159. seizure of goods under, irrevocable, a protected transaction, 80 ^ LIQUIDATION, TRUSTEE IN, unregistered bill of sale void against, 140. relation back of title of, 76. LIQUIDATOR, unregistered bill of sale given by company good against, 136. LODOma-HOUSE KEEPERS, when traders within B.A., 1869, 46. S 206 INDEX. M. MACHINERY, fixed, not witliin doctrine of reputed ownership, 54. not attached to freehold, is within doctrine, 51. hired, no presumption of ownership of hirer as to, 69, 70. affixed to freehold of ironworks, custom as to, 70. assignment of, 124, 126. passes articles used therewith, 162, 163. MARKET GARDENERS, who are traders as, within B.A., 1869, 47. . MARRIAGE SETTLEMENTS, within 17 & 18 Vict., c. 36, do not include post-nuptial settlements, 7. MASTERS, of Queen's Bench Division, duties of, under Bills of Sale Acts, 155, 156, 157. hook of particulars to he kept ty, 156. MORTGAGE, biU of sale hy way of, i, 4, 19, 68. in substance, though not in form, a, 31. passes fixtures, 13. with power of distress, not a " licence to take possession of chattels," 5. reservation of power to, an indication of fraud, 38. MORTGAGEE, of goods on leasehold premises how affected hy landlord's right of distress, 22. IS". NON-REGISTRATION, effect of, 140. NOTICE, of act of hankniptoy, what is, 81-84. effect of removing goods after, 78. need not he express or formal, 82. ought not to he douhtful, 83. what sufficient, 83. to whom sufficient, 83, 84. may he sent hy post, 84. onus of proving ahseuce of, upon whom, 84. to assignee of sheriff, effect of, 84. security of grantee taking hill of sale after, 85. INDEX. 207 0. OCCUPATION, within 17 & 18 Vict., o. 36, s. 7, 135. muBt be a de facto, 136. of grantor, 144, 146-161. description of, 144. what sufficient, 146-161. of trading company need not be stated, 161. of attesting witness, 162, 153. must be stated, 163. ORDER AND DISPOSITION. See REPUTED OWNERSHIP. P. PARTNERSHIP, mortgagee of premises from one partner not concerned with equities arising from the, 12. is entitled to fixtures set up by, 12. POSSESSION, colourable, not enough to give validity to bill of sale under 13 Bliz., c. 6, 38. of vendor or mortgagor, question of fact for the jury, 132. and " apparent possession," what meant by, 131. must be " something more than formal," 132. grantor, having use of chattels as part wages, held to be in apparent, 134. goods formally seized in execution remain in debtor's apparent, 134. POWERS, to take possession of chattels as security for a debt, 3. are within 17 & 18 Vict., c. 36, s. 7, 3. PURCHASER, bon& fide, for valuable consideration, protected, 36. withnotice of vendor's fraudulent intention liable to trustee, 107. E. RECEIPT, mere, not a bill of sale, 4. unless professing to be a grant or transfer of goods, 4. REGISTRATION, of bills of sale, 127-167. acts as to, 3, 8, 127. see Appendix, 168-173, do not narrow doctrine of reputed owner- ship, 62, 143. give new security to grantees, 62. object of, 127, 142, 144. s2 208 INDEX. REGISTRATION— (!ow«M«c(«. • what instnimentB require, 3. when necessary, 135. imperfect, consequences of, 136. against whom an unregistered bill of sale is void, 140. good, 133, 136, 140-142. effect of, 142. renewal of (29 & 30 Vict., o. 96, s. 4), 166. devices to avoid, 136-140, 168. time for, reckoned exclusively of day of execution of bUl of sale, 139. RENT, common law right of landlord to distrain for, 21. may defeat security of grantee, 21. payable in advance may be distrained for, 21. chattels exempt from distress for, 21. REPUTED OWNERSHIP, provision as to (32 & 33 Vict., c. 71, B. 16), 41. doctrine of, 42. is iiot narrowed by BiUs of Sale Act, 62, 143. limited to goods of traders, 43. applies where possession of bankrupt not ion&Jide, 68. is not applicable to goods acquired by bankrupt after date of his bankruptcy, 76, 77. general rule as to, 63. property affected by, must consist of goods and chattels, 63. not lands, houses or interests therein, 53. nor heirlooms, 63. nor fixtures, 63. nor fixed machinery, 64. nor choses in action, except debts due, &c., 42, 54. nor goods held upon trust, 66, 66. unless trust created mal&flde, 56, 66. nor goods in possession of mortgagee, pawnee or bailee, 67. includes machinery not attached to free- hold, 64. must be in possession, &c., of bankrupt as reputed owner, 57. at time of his bankruptcy, 76. actual possession of, by bankrupt un- necessary, 57. must be in sole possession of bankrupt, 70, 72. INDEX. 209 REPUTED OWSm,SBIF—conimuea. property affected ty — continued. must te in sole possession of bankrupt, with consent of true owner, 73. t}-ue owner, meaning of expression, 73. must have capacity to give consent, 73. cannot he an infant, 74. absence of consent of, where implied, 74. iond fide demand of, indication of withdrawal of consent, 76, 80. may remove goods at any time before act of bankruptcy, 77. without notice of act of bankruptcy, may remove goods, 78. consent of, onus of proving, is on trustee. Add. presumption of, where bankrupt was originally owner, 68. chattels are lea,sedby vendee to vendor,68- raised by mere proof of possession, 68, 59, 64. unless change of ownership no- torious, 69, 60. unless nature of business rebuts the inference, 59. where bankrupt was not originally owner, 58. evidence required to establish, 58. evidence of, 58. may be rebutted by notoriety of change of ownership, 60. custom of certain trades, 59. as to clocks left in maker's shop, 69. wine left in bankrupt's cellars, 60, 62, 65. books left with book- seller for sale, 62, 65. spirits left in bonded stores, 62. carriage left on maker's premises, 66. farmer's, 66. furniture let out on hire, 64, 66. upholsterers, 64, 66. hotelkeepers, 66. ship in course of con- struction, 66. goods in process of manufacture, 66. rightly in eustodid legis, 71. 210 INDEX. REPUTED OWNERSHIP— (!o«««««rf. evidence of — contimied. custom exempting from doctrine, need not be known to public at large, 62, 63, 67. must be general in bankrupt's trade, 67. proved, 67. effect of seizure under a fi. fe. against reputed owner, 77. removing goods from order, &c., of bankrupt after act of bankruptcy, 78. RE-REGISTRATION, of bills of sale, mode of, 155. REVOCATION, of lioenoe to seize after acquired property, 18, 19. power of, in deed, a badge of fraud, 38. SATISFACTION, entering, of a bill of sale, 166. SCHEDULE, absence of, some indication of fraud under 13 Eliz., o. 6, 38. when referred to in deed, effect of, 161. does not enlarge operation of deed, 162. controls words of description in deed, 161. should be referred to as by way of further description merely, 162. when used, must be filed at the same time as the bill of sale, 155, 163. disannexing original and replacing with fair copy, effect of, 163. of traders (32 & 33 Vict., c. 71, s. 4), 44. exemption from, 51. SCRIVENERS, who are traders as, within B.A., 1869, 47. SECRECY, of transfer a badge of fraud under 13 Eliz., c. 5, 36. SECURITIES, held by creditors, provisions as to, in B.A., 1869, 85, 86. general rules as to, 86. SHAREBROKERS, are traders within B.A., 1869, 47. INDEX. 211 SHEEP, are conditionally exempt from distress, 21. SHIPBUILDEES, ships in covirse of construction by, not io reputed ownership of, 66. SHIPOWNERS, are traders within B.A., 1869, 47. SHIPS, traiisfers of, not bills of sale within Act, 7. STAMPS, provisions as to, in BEIb of Sale Stamp Act, 1870 (33 & 34 Vict., 0. 97), 164. upon biUs of sale should be impressed, 167. STATUTES, 51 Hen. III., stat. 4 (distress on beasts of the plough, &c.), 22. 13 Eliz., c. 5 (conveyances to deftuud creditors), 24-40, 94, 96. 8. 1 (preamble), 24. a. 2 (enactrug clause), 25. 3. 6 (protection to purchasers), 25, 26, 29. 14 Eliz., c. 11 (confirming 13 Eliz., c. 6), 26. 27 Eliz., c. 4 (conveyances of real estate), 24. c. 5 (making perpetual 13 BUz., c. 6), 26. 11 Geo. n., c. 19 (fraudulent removals), 22. B. 1 ( do. do. ), 22. s. 2 ( do. do. 1, 22. s. 3 ( do. do. ), 22. 12 & 13 Vict., c. 106 (Bankruptcy Act, 1849), 79, 80, 81. 17 & 18 Vict., c. 36 (registration of bills of sale), 3, 32, 71, 127-155, 168 A^. (preamble), 127. s. 1 (filing of bills of sale), 127-129. s. 2 fdefeasance to be filed), 129. s. 3 (books to be kept), 156. s. 6 (memorandum of satisfaction), 156, 157. 8. 7 (interpretation clause), 3, 6, 8, 131. 24 & 25 Vict., c. 134 (Bankruptcy Act, 1861), 43, 96. 29 & 30 Vict., c. 96 (registration of bills of sale), 3, 155, 172 App. a. 4 (renewal of registration), 155, 156. 8. 5 (mode of re-registration), 165. 8. 6 (affidavit), 155. 8. 7 (books to be kept), 156. 212 IKDEX. STATUTES— roK«»«erf. 32 & 33 Viot., c. 71 (Bankruptcy Act, 1869), 40, 43, 94, 95. s. 4 (interpretation claiise), 44, 85. 8. 6 (exclusion of companies, &c.), 44, 51. s. 6 (acts of bankruptcy), 81, 96, 98. 8. 11 (commencement of bankruptcy), 76, 81. 8. 15 (property of bankrupt), 41, 42, S3, 64, 136. s. 40 (secured creditors), 85. 8. 78 (petition by secured creditor), 85. B. 87 (proceeds of sale and seizure), 51. s. 92 (fraudulent preferences), 39, 86, 87, 88. 8. 94 (protected transactions), 78, 80, 81, 82, 85. 8. 95 ( do. do. ), 79, 81, 85. 8. 125 (liquidation by arrangement), 118. 33 & 34 Vict., c. 97 (stamps), 163. 8. 15 (penalties), 167. s. 16 (unstamped instruments admissible in evidence), 164. s. 57 (filing of unstamped bill of sale), 164. s. 107 (duty on securities for future advances), 166. 36 & 37 Vict., c. 66 (Judicature Act, 1873), 16. 8. 26 (amendment of law), 16. TENANT, security of grantee of chattels on premises of which grantor is, 21. fraudulent removal of goods by, to avoid distress, 22. TRADERS, who are, within schedule of Bankruptcy Act, 1869, 43-62. TRANSFERS. See CONVEYANCE — DISPOSITIONS OF PROPERTY. TRUE OWNER. See REPUTED OWNERSHIP. TRUST, DECLARATIONS OF, what are, 130. included in expression " bill of sale," 3. provision as to (17 & 18 Vict., o. 36, u. 2), 129. object of, 130. interpretation placed upon, by courts, 130. do not include arrangements outside bUl of sale, 130. TRUSTEE, conveyance to, of aU debtor's property for creditors, void, 98. in bankruptcy, when bills of sale void against, 41-93. relation back of title of, 75, 76, 81. INDEX. 213 TRUSTEE— «OMi!tM««rf. in bankruptcy — continued. unregistered bill of sale void against, 140. how claim of, may be defeated, 143. onus of proving consent of true owner rests on, .Add. in liquidtvtion, title of, relation back of, 76. V. VOLUNTAEY CONVEYANCES, must be by deed, 2, 3. fraudulent and void as against creditors, 32. w. WITNESS, attesting, description of, 143, 162, 163, object of, 162. efi'ect of omitting, 163. sufficient, what is, 162. where more than one, 163. FOEMS OP BILLS OF SALE, AFFIDAVITS, &c., AR£ SOLD BY EVISON & BRIDGE, Sato Statiottm, %Tii^oQt^lim & '§xixdm, 22 OHAJSrOBRY LAJSTB, W.C.