way of mortgage. It was held by the Court of Appeal that, as there was no debt until after the transaction was completed, the consideration was untruly stated. But in the case of In re Cann (v), however, a bill of sale was given "in consideration of £10 now paid by H. to C." In fact, D. acted as solicitor in the matter for both H. and C., and, on the execution of the deed, received the £10 from H., and, with C.'s consent, retained £9 for costs and handed over £1 to C. Cave, J., held that, under the circumstances, the consideration was stated with perfect accuracy, for on the execution of the deed D. ceased to be H.'s agent, and was C.'s agent alone, and, as such, could apply the £9 to pay his costs. In Ex parte Bolland (w) the consideration was stated to be "£2000 to the mortgagor paid by the mortgagee immediately before the execution of these presents," while the grantor owed the grantee £2000, the balance of £2500 purchase-money for a leasehold brewery, and had paid him £500 in cash and given him the bill of sale for the balance, and this was accepted by the grantee in payment. The Court of Appeal held the consideration to be truly stated, following Ex parte Challinor (x), as it would be held in law a payment of the £2000. There is another class of cases in which the question Cases as to is whether the circumstances attending the advance circumhave been so mis-stated as to amount to an untrue statemert of the consideration. It is a matter of some difficulty to say in what cases precisely, and upon what principle, the Court would hold the mis-statement *of the transaction so [* 145] mixed up with the consideration as to give an untrue impression of what the consideration really was (y). Recitals of the motive and object of the advance need not be stated, nor need any collateral agreement or bargain between the grantor and the grantee as to the application of the consideration (z); nor need the history of the transaction be described (a). (v) 13 Q. B. D. 36; and see In re Williams, 25 Ch. D. 656, (y) Hamlyn v. Betteley, 5 C. P. D., per Grove J., 330. (z) Ex parte National Mercantile Bank, 15 Ch. D., per James, L. J., 53; Ex parte Popplewell, 21 Ch. D. 73; Ex parte Winter, 29 W. R. 575. (a) Ex parte Allam, 14 Q. B. D. 43. stances of advance. Of course, if there was a bargain that the whole sum which is stated to be the consideration should be at once returned to the grantee, that would be a sham transaction (b). The consideration of a bill of sale which contained a recital in which promissory notes were mis described as bills of exchange which had been discounted, and in which an agreement to take up the bills was described as a covenant hereinafter contained, and was actually omitted, was held to be sufficiently stated (c). A verbal agreement not to register a bill of sale, being a mere collateral agreement, is no part of the consideration (d). So, a recital that a bill of sale was executed to induce the grantee not to take proceedings, against the grantor was held immaterial (e). So, the mis-statement of the consideration in the deed cannot be corrected by a true statement of it in the indorsed receipt, which is not part of the deed (ƒ). As payment does not necessarily mean payment at once, a statement of the consideration as the payment of two sums in fact paid some two months before was held sufficient (g). So, where there was an agreement that the grantor should have a present advance of £1500, and should give a bill of sale as security for it, which was done, and that bill, being found to be worthless, was replaced by a bill in which the consideration was stated as money 66 now paid," the consideration was held to be properly described (h). [* 146] *Where a sum of £400 was advanced by five instalments, the first three of which, amounting to £240, were advanced to the grantor and his partner some time before June, while £100 was advanced in June and £60 in July, both to the grantor alone, and the deed recited that £340 was advanced to the grantor in June all at (b) Ex parte National Mercantile Bank, 15 Ch. D., per James L. J., 53. (c) Roberts v. Roberts, 13 Q. B. D. 794. (d) Ex parte Popplewell, 21 Ch. D. 73. (e) Ex parte Winter, 29 W. R. 575. (f) Ex parte Charing Cross Advance Bank, 16 Ch. D. 34. (g) Carrard v. Meek, 50 L. J. (N.S.) C. P. 187; but see Ex parte Rolph, 19 Ch. D. 98. (h) Ex parte Allam, 14 Q. B. D. 43; but see Ex parte Berwick, 29 W. R. 292. one time, it was held that the consideration was not truly stated (i). whether It has been a question whether the Bills of Sale Act, Act 1882 -1882, applied to cases in which the right to immediate applies possession of the goods was given by the grantor to the right to grantee, and the grantee took possession of the goods immediate instantly in accordance with the contract then and there possession of made (k) goods is given to grantee or The Court of Appeal, however, in Ex parte Par- not. sons (1), where the bill of sale conferred a right to immediate possession of the goods, laid down the principle that the Act of 1882 applies, whether the right to immediate possession is or is not given by the grantor to the grantee. The ground of this decision is that (unless the document is one of the excepted class of documents specified in section 4 of the Act of 1878) section 9 of the Act of 1882 avoids every document by which goods are made a security for a debt, unless it is made in accordance with the form prescribed in the schedule. at once But a transaction (such as a pledge) the effect of which But not when is immediately to transfer possession as distinguished possession is from giving the right to take it is not within the scope transferred of the Bills of Sale Acts. The distinction seems to be by the that in such a case the transfer of possession precedes transaction. the document, instead of following it; and that the special property passes by that transfer of possession, and not by the document (m). The question whether a particular document, if a What is a security for the payment of money, is within the Act bill of sale of 1882 depends upon whether it is a bill of sale as de- depends on find by the Act of 1878 (n). If the document is a bill Act 1878. of sale as defined by the Act 1878, then it is a bill of sale within the Act of 1882. *By the Bills of Sale Act, 1878 (o), the expres- [*147] (i) Ex parte Carter, 12 Ch. D. 908; but see Ex parte National Mercantile Bank, 15 Ch. D. 55; Credit Co. v. Pott, 6 Q. B. D. 295. (k) See In re Hall, 14 Q. B. D. 386; In re Cunningham, 28 Ch. D. 682; but see post, p. 150. (1) 16 Q. B. D. 532. (m) In re Hall, 14 Q. B. D. 386; In re Hardwick, 55 L. J. (N.S.) Q. B. 490. (n) 41 & 42 Vict. c. 31 ss. 4, 6, 10 (3); 45 & 46 Vict. c. 43, s. 3. (0) Section 4. What is a bill of sale under Act 1878. What is a bill of sale. sion "bills of sale" includes "bills of sale, assignments, transfers, declarations of trust without transfer, inventories of goods with receipt thereto attached, or receipts for purchase-moneys of goods, and other assurances of personal chattels, and also powers of attorney, authorities, or licences to take possession of personal chattels as security for any debt, and also any agreement, whether intended or not to be followed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shall be conferred." The following documents have been held to be "bills of sale": An agreement to execute a bill of sale, if relied on as an equitable assignment, but not if a mere agreement (p); a receipt for purchase-money (q); a document giving licence to take immediate possession (r); a post-nuptial settlement (s), but not if made in pursuance of an ante-nuptial agreement (†). Every attornment, instrument, or agreement (not being a mining lease) whereby a power of distress is given by way of security for any debt or advance, and whereby any rent is reserved for the purpose of such security only, is deemed a bill of sale (u). And any defeasance, condition, or declaration subject to which the bill of sale is given, and which is not contained in the body thereof, shall be deemed to be a part of the bill, and shall be written on the same parchment or paper thereof (v). A parol agreement to pay a debt by instalments is a defeasance (w); but a memorandum was held not to be a condition so as to require registration (x), nor is a verbal agreement not to register a bill of sale (y). (p) Ex parte Mackay, L. R. 7 Ch. 643; Ex parte Conning, L. R. 16 Eq. 414; Edwards v. Edwards, 2 Ch. D. 291. (q) Snell v. Heighton, 1 C. & E. 95. (r) Reg. v. Townshend, 15 Cox, C. C. 466; In re Cunningham & Co., 28 Ch. D. 682; and see In re Hardwick, 55 L. J. (N.S.) Q. B. 490. (s) Ashton v. Blackshaw, L. R. 9 Eq. 510. (1) Fowler v. Foster, 28 L. J. Q. B. 210. (u) Section 6; ante, p. 140. (v) Section 10 (3). (w) Ex parte Southam, L. R. 17 Ed. 578; and see Ex parte Odell, 10 Ch. D. 76. (x) Ex parte Collins, L. R. 10 Ch. 367. (y) Ex parte Popplewell, 21 Ch. D. 73. *A bill of sale given by the equitable owner [*148] will be valid if registered in his name (y). A bill of sale originally duly registered, even if assigned by the grantee, will be void if not re-registered (z.) But the expression "bill of sale" does not include What is not a the following documents : Assignments for the benefit 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 warrants, warehouse keepers' certificates, warrants or orders for the delivery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented. The following documents have been held not to be bills of sale : An equitable sub-mortgage of a registered bill of sale (a); a transfer so far only as relates to the sum transferred, where a further advance is then made (b); a contract giving a right connected with the vendor's lien on goods in transitu (c); an inventory of goods, with receipt for the purchase-money attached to it, when not the instrument of transfer, but merely an acknowledgement for money previously paid (d); a mere equitable agreement (e); a building agreement which is a licence to take possession of personal chattels, but (y) Walrond v. Goldmann, 16 Q. B. D. 121, not following Chapman v. Knight, 5 C. P. D. 308. (z) Karet v. The Kosher Meat Supply Association, Limited, 2 Q. B. D. 361; and see Horne v. Hughes, 6 Q. B. D. 676; Ex parte Shaw, 25 W. R. 686; Askew v. Lewis, 10 Q. B. D. 477. (a) Ex parte Turquand, 14 Q. B. D. 636. (b) Horne v. Hughes, 6 Q. B. D. 676; and see section 10 (5); and Ex parte Shaw, 25 W. R. 68. (e) Ex parte Watson, 5 Ch. D. 35. (d) Woodgate v. Godfrey, 4 Ex. D. 59, S. C. 5 Ex. D. 24; Marsden v. Meadows, 7 Q. B. D. 80; and see Ex parte Odell, 10 Ch. D. 76; Ex parte Cooper, 10 Ch. D. 313. (e) Ex parte Mackay, L. R. 8 Ch. 653. bill of sale. |