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and a bill of exchange or a promissory note, when made payable to the order of a particular person, can, of course, be assigned by him only under a written indorsement of his name.

Again, though the property in a chattel personal will (on a sale) pass without delivery of possession, yet it is to be remembered, that, by the 13 Eliz. c. 5, a gift (and even an assignment) of chattels, made with the intent to defeat or delay creditors, is void as against such creditors, though good and effectual as against the grantor himself (6). One of the principal badges of fraud has always been deemed to be the retention of the goods by the original owner, contrary to the purport of his assignment (c), although, where the retention of the possession is consistent with the apparent object of the parties (e.g., in the case of a mortgage), that primâ facie presumption would not arise (d).

By the old common law, where judgment was obtained in an action, and a writ of execution by fieri facias issued thereon against the goods of the judgment debtor, the property in the goods was, in all cases, bound from the time of issuing the writ (e); but by the Statute of Frauds (29 Car. II. c. 3), s. 16, it was provided, in favour of bonâ fide purchasers of the goods, purchasing from the debtor after judgment, that no such writ should as against them (but not as between the judgment creditor and the judgment debtor) bind the property in the goods, but from the time that the writ was delivered to be executed,

-a provision which has been repealed, but at the same time re-enacted, by the Sale of Goods Act, 1893, s. 26. Under the proviso contained in the last-mentioned section,

(6) 3 Rep. 82.
(c) Twyne's Case (1585), 3 Rep.

(e) 8 Rep. 171 ; 2 Bl. Com. 447; Samuel v. Duke (1839), 6 Dowl. P. C. 536.


(d) Martindale v. Booth (1832), 3 B. & Ad. 498.

—which is a mere re-enactment of the provision to the like effect contained in the Mercantile Law Amendment Act, 1856, s. 1,- no writ of execution against the goods of a judgment debtor is now to prejudice the title thereto acquired by any person, bonâ fide and for a valuable consideration, unless such person had, at the time he acquired his title, notice that a writ (by virtue of which the goods might be seized or attached) had been delivered to, and remained unexecuted in the hands of, the sheriff (f).

By the Bills of Sale Act, 1878, as amended by the Bills of Sale Act, 1882, a bill of sale of personal chattels will be void wholly or to a certain extent, so far as regards any personal chattels comprised in such bill of sale which are left in the defendant's possession or apparent possession, unless such bill of sale shall have been duly registered in the Central Office of the Supreme Court within seven days from its date ; and unless such registration shall have been renewed once in every period of five years during the subsistence of the security, and the other provisions of the Acts duly complied with.

There is an important distinction to be noted between an absolute bill of sale and one given by way of security for money. The former is a document evidencing an out-and-out sale, under which the seller continues in apparent possession of the goods sold. Non-compliance with the requirements of the Act in this case only avoids the bill, as against the trustee in bankruptcy of the grantor or an execution creditor. The latter is in effect a mortgage of chattels, and non-compliance with the Acts avoids it entirely, even as between the grantor and grantee. The Bills of Sale Acts are of a highly elaborate nature, and their provisions have to be very strictly complied with in order that a bill of sale may be effectual. In particular,

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bills by way of security must be in the exact form prescribed by s. 9 of the Act of 1882 (9), and the parties, the subject-matter, and the true consideration must be precisely described. The grantee's right to seize the goods for default of payment of the debt is limited to five cases, specified by s. 7 of the Act. The subject of bills of sale is an important one and is treated of in greater detail in a subsequent chapter (99).

In what has been hitherto said of transferring chattels, we have supposed the property to be vested in the person who assumes to transfer it. In general, this circumstance is essential to the validity of the transaction, in accordance with the maxim “nemo dat quod non habet(h). There are exceptional cases, however, in which a man may confer property in chattels, of which he is not himself the owner, and of which he is not even authorised to make a disposition ; for if current coin of the realm be paid over for valuable consideration to an innocent party, his, title thereto will be complete, although it should have been wrongfully obtained by the party who made the payment (©). And the case is the same with respect to notes of the Bank of England; also with respect to the transfer in regular course, of bills of exchange, promissory notes, and other negotiable instruments (k); and also with respect to goods sold in open market (market overt), except in the case of stolen goods, when the thief has been prosecuted to conviction (1). As regards choses in action which are not negotiable instruments, e.g., shares,

(g) Thomas v. Kelly (1888), L. R. 13 App. Ca. 506 ; Weardule Co. v. Hodson, [1894] 1 Q. B. 598.

(99) See post, ch. v., s. 13.

(h) Peer v. Humphry (1835), 2 A. & E. 495 ; Lunn v. Thornton (1845), 1 C. B. 379.

(i) Miller v. Race (1791), 1 Burr. 452.

(k) Picker v. London and County Banking Co. (1887), 18 Q. B. D. 515 ; London and County Banking Co. v. River Plate Bank (1888), 20 Q. B. D. 232 ; 21 Q. B. D. 535.

(1) Hargreare v. Spink, (1892] 1 Q. B. 25 ; Sale of Goods Act, 1893, s. 24.

stocks, and securities issued by companies and local authorities, any purported transfer of these by a person who is not the true owner is, of course, ineffectual to pass the title to them (m); wherefore, by the Forged Transfers Acts, 1891 and 1892, companies and local authorities may, as regards such shares, stocks, and securities, compensate the purchaser thereof for the loss he sustains through purchasing under a forged transfer thereof, or in pursuance of a forged power of attorney to transfer same. And the company or authority paying such compensation is remitted to all the rights and remedies of the innocent purchaser as against the person liable for the loss.

(m) Crouch v. Crédit Foncier (1873), L. R. 8 Q. B. 374 ; London Join Stock Bank r. Simmons, [1892] A. C. 201.



A CONTRACT is not, strictly speaking, in itself a title to things personal or other property. Contracts give rise directly to rights in personam, that is to say, rights to compel another person to do or not to do something, and only indirectly to rights in rem, that is to say, rights in the nature of property. In a certain sense, however, every right under a contract may perhaps be regarded as a kind of chose in action, particularly where the contract in itself constitutes, or incidentally involves, an assignment of property ; as in the case of an actual loan of money, or an agreement for the sale of specific goods ready for delivery. Further, it may be said that every contract for the sale or disposition of property, if and so far as an action for specific performance of it would successfully lie, amounts in equity to an assignment of such property, and effectually vests in the person in whose favour it is made an equitable title to such property (a). It is therefore not inappropriate, and is in any case convenient, in this portion of the present work to consider the legal nature and effect of contracts, particularly those which directly or indirectly involve dispositions of, or affect the title to, chattels personal.

For this purpose, it is proposed in this chapter to deal in the first place with the rules of law relating to contracts in general, and in the next place to examine in greater detail certain particular classes of contracts.

(a) Cf. Walsh v. Lonsdale (1882), 21 Ch. D. 9; Lysaght v. Eduards (1876), 2 Ch. D. 499, at p. 506 ; Raffety v. Schofield, [1897] 1 Ch. 937.

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