F.C. NELLIGAN V. WARREGO SHEEP SHEARING CO. LIMITED. McCawley C.J McGill for appellant. Macrossan for respondent. The following cases were referred to by counsel; Woodgate v. Godfrey (1), Marsden v. Meadows (2), Newlove v. Shrewsbury (3), Phillipson v. Hayter (4), Yarnton v. Yarnton and Taylor (5), Glen v. Abbott (6), McCarthy v. Nicholls (7), Millar v. Rowe (8), Rcme cy v. Margrett (9), Macnamara v. Martin (10), Lotz v. Bullock (11), Caulfield v. Sooti (12). The judgment of the Court was read by C.A.V. MCCAWLEY C.J.: This is an appeal under The Magistrates Courts Acts of 1921 from the decision of the Magistrates Court held at Charleville. A motor car was seized under a warrant of execution against M. Milton. Amos Nelligan, the appellant in this case, claimed the car as his property. The Magistrate gave judgment for the execution creditor and ordered the execution to proceed. this decision Nelligan appeals. From The appellant gave evidence that he agreed to buy the car from Milton for £95; that he paid the money and received a document dated 12th October, 1922, as follows:-" This is to certify that I have this day sold to Amos Nelligan one Ford motor car, including one Rushmore generator, one set of special Fox spanners, two pairs pliers, other tools, spare parts, etc. For full value received. Witness, H. Schakleton. (Signed) M. Milton.” Appellant's story was that the alleged sale was made at Cunnamulla on 12th October, 1922; that he left that town on Sunday, 15th October, Milton coming with him in the car, and arrived at Charleville on 17th. Appellant did not use the car on the 18th. He could not drive a car. On the 18th the car was seized at the hotel where Milton was staying-appellant was staying at another hotel. Before it was seized, Milton asked the bailiff for permission to remove from the car his private propertya box and overcoat. The whole of the evidence is quite consistent (1) 1879, 4 Ex. D. 59. (7) 1887, 8 A.L.T. 180. F.C. NELLIGAN V. WARREGO SHEEP with Milton having continued in possession of the car. The Magistrate found as a fact that Nelligan "had never, after the alleged sale, taken or had actual bona fide possession of the property in question." There was evidence from which the Magistrate could reasonably so conclude. The Magistrate decided McCawley C.J. further that the document was a bill of sale. We have to determine whether his decision can be supported. To be a bill of sale, the document must amount to an "assurance" within the meaning of The Bills of Sale Acts, 1891 to 1896. Dealing with the analogous provision of the English Bills of Sale Act, Cotton L.J. in Marsden v. Meadows (1) says: "A document to be a bill of sale to which the Act applies, must be one on which the title of the transferee depends, either as the actual transfer of the property or an agreement to transfer, or as a muniment or document of title taken, to use an expression found in some of the cases, at the time as a record of the transaction." In the same case, Bramwell L.J. says: "I think that the proper interpretation of the statute is that when receipt is intended to be the instrument of transfer or a record of the transaction, then it is to be registered and attested as a bill of sale under the Act." This statement of the law is cited with approval by Cotton L.J. in North Central Wagon, Company v. Manchester, &c., Railway Co. (2) In Ramsay v. Margrett (3), Lord Esher M.R. remarks: It seems to me that the rule as laid down by Lord Herschell in Charlesworth v. Mills (4) is this-If a document is intended by the parties to it be a part of the bargain to pass the property in the goods, then whatever the form of the document may be, even if it be only a simple receipt for the purchase money, it is, by s. 4, to be deemed to be a bill of sale, though it is not so in fact.” Considering the whole of the circumstances of this case, including the fact that Milton retained possession of the car, it was open to the Magistrate to hold that the document was an assurance within the meaning of the Act as interpreted by these decisions. The appellant contends that in the present case there should be a new trial, alleging that the Magistrate has not found as a fact that there was no independent contract. The Magistrate was not asked to find the fact specifically, and, having found that the (1) 1881, 7 Q.B.D. 80, at p. 85. (2) 1886, 35 C.D. 191, at p. 203. (3) [1894] 2 Q.B. 18, at p. 23. LIMITED. F.C. NELLIGAN V. WARREGO SHEEP SHEARING Co. LIMITED. document was an assurance, his finding involves the implication of fact that there was no independent contract outside the document (per Bowen L.J., (1)). The appellant in the Court below sought, no doubt with the object of establishing an McCawley C.J. independent contract of sale completed by delivery, to establish that the car had been delivered to him, but this fact the Magistrate expressly determined against him. We are of opinion that the appeal should be dismissed with costs. Solicitors for appellant: Bouchard & Holland, for Mayne, Timbury & Francis, Charleville. Solicitors for respondent: Osborne & Waugh, for J. F. F. Lockett, Charleville. (1) 1887, 35 Ch. D. 191 at p. 211. [IN THE FULL COURT.] NELSON AND ANOTHER v. NELSON. Detinue-Demand for chattels Unlawful refusal to deliver — to remove chattels. In an action in detinue, judgment was given by a Magistrates Court for the plaintiff. Before action was brought, the defendant wrote a letter, demanding to be allowed to remove the chattels alleged to be detained. The plaintiffs did not answer that letter. There was no other evidence relating to any demand or refusal. Held, that there was no evidence of an unlawful failure to deliver up chattels when demanded, and that an action in detinue did not lie. Semble, a plea of not guilty is in effect a plea of non-detinet. Clements v. Flight (1) applied. APPEAL. same. This was an appeal from a decision of a Magistrates Court. The plaint in that Court was as follows :-The plaintiff sues the defendants jointly and severally for the recovery of possession of certain goods, namely-a waggon, a Beale piano, a sewing machine, heavy harness and working tools, and for damages for detaining And the plaintiff claims £150. Particulars were given. The notice of intention to defend stated the following grounds:"Not guilty. The waggon and heavy harness are the property of R. F. Evans, of Merriwa, which we hold as bailees only; the Beale piano is the property of our two sisters, who have ordered us not to deliver the same to anyone without their authority; the sewing machine is the property of plaintiff's wife and the plaintiff has a box of tools at our house which he is at liberty to remove at any time; we have no tools in our possession." Some weeks before the commencement of the action in the Magistrates Court, the solicitors for the plaintiff wrote the following letter to the defendants :--" We are instructed by Mr. H. A. Nelson to demand and do hereby demand from you possession of a waggon, a Beale piano, a sewing machine, heavy harness, and working tools which he wishes to remove from their present location, but which he is unable to do on account of their detention by you. Unless you allow him to remove the articles forthwith, action will be taken against you." (1) 1846, 16 M. &W. 42. 1922. December 6. McCawley C.J. F.C. NELSON AND McCawley C.J. The Magistrates Court decided that the plaintiff recover against the defendants the sum of £130, being the sum assessed by the Court to be the value of the chattels of the plaintiff wrongfully detained by the defendants (specifying them), and £10 for damages for their detention, and costs to be taxed. And it was ordered that the defendants pay the said sums to the Registrar of the Court on 1st December, 1922. And it was further ordered that if the defendants should, on or before 1st December, 1922, pay to the Registrar the sums respectively ordered to be paid for damages and costs, and also return to the plaintiff the chattels and if the plaintiff should then accept the same, then satisfaction of this judgment should be entered up by the Registrar on the production to him of the receipt for the said chattels, signed by the plaintiff or his attorney or agent into Court. (Vide Form 25 of Magistrates Courts Rules of 1922). The defendants appealed to the Full Court on the grounds stated on p. 37. McGill, for the appellants: There was no evidence of detention or conversion or even of possession by the defendants. No demand was made for the return of the chattels and no refusal of the demand. A demand and refusal must be made prior to action in detinue. Clayton v. Le Roy, per Fletcher Moulton L.J. (1). The letter was not a demand and called for no answer from or action by the appellants. In form the action is clearly one of detinue. Walsh, for the respondent: The finding of the Magistrate should stand unless manifestly wrong; he evidently accepted the evidence for the plaintiff, and on that evidence could directly, or by reasonable inference therefrom, reasonably arrive at his findings. If the evidence does not support a case of detinue it does establish a conversion of the chattels. The point that no demand or refusal was made was not raised in the Magistrates Court and cannot now be taken. The judgment of the Court was read by MCCAWLEY C.J.: This is an appeal, under s. 11 of The Magistrates Courts Act of 1921, from the Magistrates Court at Goondiwindi. H. A. Nelson, by his plaint dated 6th October last, sued P. A. Nelson and G. A. Nelson "for the recovery of possession of certain goods, namely—a wagon, a Beale piano, a (1) [1911] 2 K.B. 1031, at p. 1048. |