ances are void

What conveyavoid bankruptcy. (a) If under such circumstances he makes a payment to a particular creditor, his intention to prefer will be under the bankruptcy presumed, and its rebuttal rests with the creditor. (") It seems that laws. the last clause of sec. 92 and ss. 94 and 95 of the Bankruptcy Act will protect a creditor who receives a transfer or payment otherwise preferential, if he can show that he received it in good faith and without knowledge of any fraudulent preference. (8) Sections 94 and 95 provide that nothing in this Act contained shall render invalid any contract or dealing with any bankrupt, made in good faith and for valuable consideration, 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, or 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 consideration, 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 him for adjudication.

The rights of an unregistered bill of sale holder will however be defeated by the commission of an act of bankruptcy to which the title of the trustee under a subsequent bankruptcy relates, although the bill of sale holder has no notice of such act of bankruptcy and afterwards takes possession. (t)

An act of Bankruptcy available for adjudication must occur within six months next before the presentation of the petition on which the adjudication was made, (u) but by sec. 11 of the Bankruptcy Act, 1869, the trustee's title relates to any prior act of bankruptcy committed within twelve months next preceding adjudication; and it would seem that a deed executed before that period is not impeachable as an act of bankruptcy.(v)

An existing adjudication is conclusive against the holder of a bill of sale executed by the bankrupt, that the act of bankruptcy on which the adjudication was professedly founded was in fact committed, but a third party whose title to property is affected by the adjudication may appeal from it.(w)

Although a bill of sale is not void under the statute of Elizabeth, (q) Gibson v. Boutts, 4 M & G. 169. Morgan v. Brundrett, 5 B & A. 296. (r) Exp. Tate, 25 W. R. 52; 35 L. T. 531.

(8) Butcher v. Stead, L. R. 7 H. L. 839; 44 L. J. Bank. 129. Exp. Kevan, re Crawford, L. R. 9 Ch. 752. Exp. Halliday, L. R. 8 Ch. 614.

(t) Exp. Attwater, re Turner, 5 Ch. D. 27; See exp. Cochrane, re Cross, W. N. 1879, 28.

(u) Exp. Gilbey, re Bedell, 8 Ch. D. 248; 47 L. J. Bank. 49; 26 W. R. 768.

(v) Allen v. Bonnett, L. R. 5 Ch. 577; 23 L. T. 437.

(w) Exp. Learoyd, re Foulds, 10 Ch. D. 3; 39 L. T. 525; 27 W. R. 277. This case is on appeal to the House of Lords.

Registration.

or as an act of bankruptcy, it may still be invalid as against the debtor's trustee for non-compliance with the provisions of this Act; and in the case of a trader debtor, if the goods are in the debtor's apparent possession and the necessary formalities have not been complied with, (*) the chattels will remain in his order and disposition, if something has not been done by the creditor to avoid the operation of sec. 15, sub-sec. 5, of the Bankruptcy Act, 1869. (y)

Where the chattels comprised in an unregistered bill of sale had been transferred by joint tenants, one of whom assigned his interest to the other, who became bankrupt, the latter's moiety only was held to pass to the trustee. (*)

Where a question is pending between the grantee and trustee under the grantor's bankruptcy as to the validity of a bill of sale, removal of the goods it comprises will be a contempt of court.(a)

(5) An unregistered bill of sale is good as between the grantor and grantee, and all other persons except those mentioned in the section: thus it prevails against the unsecured creditors of a testator whose estate is being administered. () It is also good against execution creditors or trustees in bankruptcy or liquidation for seven days after it is made (c); after that time it cannot be registered.

An unregistered bill of sale is void against an execution creditor, notwithstanding he had notice of the bill of sale at the time he became the grantor's creditor. (d)

Prior to this Act, registration in no way affected the priorities of claimants other than execution creditors; but by sec. 10, cl. 4, bills of sale comprising the same property shall have priority in the order of their date of registration.

The effect of an execution is to avoid a prior unregistered bill of sale altogether, and to give the holder of a second registered security a good title against the prior grantee and the trustee in bankruptcy, (e) but if a security is given up, and the mortgagee proves for his whole debt, a subsequent mortgagee is not advanced. ()

To create a necessity for registration, as against execution creditors and trustees in bankruptcy, there must be apparent possession by the maker of the bill of sale, and non-registration for seven days after

(x) Sec. 10, sub-sec. 2, note.

(y) Sec. 20, note.

(z) Exp. Brown, re Reed, 39 L. T. 338; 9 Ch. D. 389; 27 W. R. 219; 48 L. J. Bank. 10.

(a) Exp. Andrews, re Fells, 36 L. T. 38.

(b) Re Knott, 7 Ch. D. 549 n.

(c) Smale v. Burr, L. R. 8 C. P. 64.

H. & C. 300.

(d) Edwards v. Edwards, 2 Ch. D. 291.

Banbury v. White, 32 L. J. Ex. 258; 2.

(e) Edwards v. English, 7 E. & B. 564; 26 L. J. Q. B. 193. Exp. Allen, re Middleton, L. R. 11 Eq. 209; 40 L. J. Bank. 17. Richards v. James, L. R. 2 Q. B.. 285; 36 L. J. Q. B. 116. Payne v. Cales, 38 L. T. 355.

(f) Cracknall v. Janson, 26 W. R. 904; 46 L. J. Ch. 652; 37 L. T. 118. Re Zucco, Exp. Cooper, L. R. 10 Ch. 510; 44 L. J. Bank. 121.

it is made, and if within seven days the assignee takes and retains a more than formal possession, he acquires a good title, and no registration is necessary; (g) but possession taken under an unregistered bill of sale, more than seven days old, will not avail against the title of a trustee under a subsequent petition, if the grantor has committed a prior act of bankruptcy, though such act of bankruptcy may be unknown to the grantee at the time of taking possession. (4)

to distress.

(6) Whether a bill of sale be registered or not, all goods it com- Goods subject prises, except fixtures, beasts of the plough, sheep, implements of trade or husbandry and goods in actual use, or those delivered to a person in the way of his trade, or in the custody of the law, will be subject to the landlord's claim for rent whilst they remain on the grantor's premises, unless the landlord's rights are waived by consent. (i) The grantee may, however, remove the goods before distress levied; for stat. 11, Geo. 2, cap. 19, by which landlords are authorised to follow goods clandestinely removed, does not apply to strangers or mortgagees.() Where the landlord distrains and sells the chattels on the premises, part of which are, and part are not, comprised in the bill of sale, a mortgagee is entitled to stand in the landlord's place, and have the goods not comprised in the security first applied in payment of the rent. (*)

certain

bills of sale.

9. Where a subsequent bill of sale is executed Avoidance of within or on the expiration of seven days after the successive execution of a prior unregistered bill of sale, and comprises all or any part of the personal chattels comprised in such prior bill of sale, then, if such subsequent bill of sale is given as a security for the same debt as is secured by the prior bill of sale, or for any part of such debt, it shall, to the extent to which it is a security for the same debt or part thereof, and so far as respects the personal chattels or part thereof comprised in the prior bill, be absolutely void, unless it is proved to the satisfaction of the Court having cognizance of the case, that the subsequent bill of sale was bonâ fide given for the purpose of correcting some

(9) Marples v. Hartley, 30 L. J. Q. B. 92. Hollingsworth v. White, 10 W. B. 619. Exp. Harris, L. R. 8 Ch. 48.

(h) Exp. Attwater, re Turner, 5 Ch. D. 27; 25 W. R. 206; 35 L. T. 682.

(i) Horsford v. Webster, 5 Tyrr. 409.

(j) Thornton v. Adams, 5 M. & S. 38. Bach v. Meats, 5 M. & S. 200.

(k) Exp. Stephenson, 17 L. J. Bank. 5.

"Mode of registering and attesting bills of sale.

When the attesting witness must be called.

material error in the prior bill of sale, and not for the purpose of evading this Act.

Under the repealed Acts, it was attempted to avoid the necessity for registration by an agreement between the grantor and grantee, made at the time of giving the bill of sale, to give and accept successive bills of sale, the last only to be registered; and such an arrangement was good against execution creditors, (") although void against the trustee as an Act of Bankruptcy, (m) unless founded on a new consideration. (n)

A clerical error will not invalidate a bill of sale. (•)

10. A bill of sale shall be attested and registered under this Act in the following manner:

(1.) The execution of every bill of sale shall be attested by a solicitor of the Supreme Court, and the attestation shall state that before the execution of the bill of sale the effect thereof has been explained to the grantor by the attesting solicitor.()

Attestation was not necessary under the repealed Acts. (4)

By the Common Law Procedure Act, 1854, () it is not necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite. The above section, with sec. 8, will render it necessary to call the attesting witness to prove all bills of sale executed under this Act. The rule applies to a cancelled or burnt deed, (s) as also to one the execution of which is admitted by the party to it, even in open court, (t) or in a subsequent agree

(7) Ramsden v. Lupton, L. R. 9 Q. B. 17. Smale v. Burr, L. R. 8 C. P. 64. (m) Exp. Cohen, re Sparke, L. R. 7 Ch. 20 ; 41 L. J. Bank. 17. Exp. Stevens, 44 L. J. Bank. 136; L. R. 20 Eq. 786. Stansfield v. Cubitt, 27 L. J. Ch. 266. Exp. Furber, re Pellew, 6 Ch. D. 181.

(n) Exp. Harris, re Pulling, L. R. 8 Ch. 48. Exp. Hall, re Jackson, 4 Ch. D. 682.

(0) Elliott v. Freeman, 7 L. T. N. S. 715. Hollingsworth v. White, 10 W. R. 619. Lamb v. Bruce, 45 L. J. Q. B. 538.

(p) The following is suggested as a form of attestation :

Signed, sealed and delivered by the said grantor, A. B., in my presence; the effect of the above written bill of sale having been explained to the said grantor before his execution thereof, by me, the attesting solicitor,

C. D., (Address).

A Solicitor of the Supreme Court of Judicature.

(2) Deffell v. Miles, 15 L. T. N. S. 293.
(r) Sec. 26.

(8) Breton v. Cope, Pea. R. 44; Gillies v. Smither, 2 Stark. 528.

(t) R. v. Harringworth, 4 M. & S. 353; Johnson v. Mason, 1 Esp. 89.

ment,(«) or in a sworn answer to interrogatories, (*) nor will illness When it is excuse the attendance of an attesting witness.(w)

unnecessary to call the attest

Where the instrument is thirty years old it proves itself; and ing witness. if it was signed in pursuance of a rule of Court, and such Court has recognised its validity by acting upon it; (*) or if it is in the possession of the adverse party, who refuses to produce it pursuant to notice, or, if producing it, claims an interest under it in the subject-matter of the cause; (v) or where the document is tendered in evidence against a public officer who is bound by law to have procured its due execution, and who has dealt with it as a document duly executed; (*) it will be unnecessary to call the attesting witness; neither will the rule apply where the party from physical or legal obstacles is unable to produce the attesting witness-as, if the witness be dead, or insane, or out of the jurisdiction of the Court, or cannot be found, or if he be absent by collusion with the opposite party,(a) and if the instrument be lost and the name of the subscribing witness be unknown, the execution may be proved by other evidence.

Where an instrument, requiring attestation, is subscribed by several witnesses, it is only necessary to call one of them. (b)

of bill of sale.

(2.) Such bill, with every schedule or inventory
thereto annexed or therein referred to,(1) and
also a true copy of such bill and of every such Registration
schedule or inventory, and of every attestation
of the execution of such bill of sale, together
with an affidavit of the time of such bill of
sale being made or given, (2) and of its due
execution and attestation, and a description of
the residence and occupation of the person
making or giving the same (3) (or in case the
same is made or given by any person under or
in execution of any process, then a description
of the residence and occupation of the person
against whom such process issued), and of

(u) Doe v. Penfold, 8 C. & P. 536; contra, Bringloe v. Goodson, 5 Bing. N. C. 740.
(v) Call v. Dunning, 4 East. 53. Bowles v. Langworthy, 5 T. R. 366.
(w) Harrison v. Blades, 3 Camp. 357; contra, Jones v. Brewer, 4 Taunt. 46.
(x) Streeter v. Bartlett, 5 C. B. 562.

(y) Doe v. M. of Cleveland, 9 B. & C. 864.

(z) Plumer v. Brisco, 11 Q. B. 46.

Barnes v. Lucas, Ry. & M. 264.

(a) Currie v. Child, 3 Camp. 283. R. v. St. Giles, 1 E. & B. 642.

(b) Forster v. Forster, 33 L. J. P. & M. 113. The above epitome is taken from Mr. Taylor's valuable work on evidence, where the subject will be found fully discussed. 7th Ed. 1530 et seq.