1860. Jan. 11.

[268]

THOMSON v. BARRETT (1).

(1 L. T. N. S. 268.)

A more memorandum or receipt for the purchase-money, not intended to operate as a record of a sale absolute or conditional of chattels, does not require registration under the Bills of Sale Act. INTERPLEADER issue to try whether the plaintiff (the claimant) was entitled to the property in a barge, seized under a fi. fa., on a judgment for 561. recovered by the defendant in an action brought by the defendant against a person named Mallett.

It appeared that in 1858 Mallett was the owner of the barge, and that he had borrowed money from time to time of Thomson. In October of that year Mallett applied to Thomson for a further loan of 201., which the latter refused without some security. It was then verbally agreed between them, that Mallett should. sell the barge to Thomson, but that if Mallett brought him the money, the barge should become his property again; and it was further arranged that Thomson should let the barge to Mallett at 30l. per annum. Accordingly on Oct. 26th, 1858, the following memorandum and receipt was drawn up and signed by Mallett, and handed to Thomson.

'Received of Mr. W. Thomson the sum of 201., being the balance of the purchase-money for the barge Robert, formerly called Emma. He holds the following I O U's, dated respectively Aug. 7th, 301.; and Sept. 23rd, 25l.; making together 751."

In pursuance of the arrangement, two receipts for two quarters' rent were alleged to have been given for rent paid for the barge, and these receipts were produced. At the time of the seizure Thomson's name was on the barge. The jury found that there was a bona fide sale of the barge to Thomson; and in answer to a question left to them, whether the above document of Oct. 26th was a mere receipt for the purchasemoney, or a record of the transaction in case the matter should afterwards be called in question, they found that it was a mere receipt. The learned Judge then directed the verdict to be entered for the plaintiff.

Woollett now moved for a new trial on the ground of misdirection:

The Judge ought not to have left the point to the jury, whether this document was a receipt or a record of the transaction, for that was matter of law which he should have decided himself.

(1) Dist. In re Walden (1878) 10
Ch. D. 76, 48 L. J. Bk. 1, 39 L. T. 333.
Cited, North Central Wagon Co. v.
M. S. & L. Rail. Co. (1887) 35 Ch. Div.

191, 208, 56 L. J. Ch. 609, 36 L. T 755; affirmed, 13 App. Cas. 554, 55 L. J. Ch. 219, 59 L. T. 730.

(HILL. J.: You must make out not only that this was matter of law, but that the Judge ought to have decided it in your favour.)

From the evidence at the trial, the document appears to have been the binding one between Thomson and Mallett. The sale was subject to a defeasance, for the property in the barge. was to remain in him, if he repaid the money.

(HILL, J. It has been decided in the Court of Exchequer that there may be a conditional sale by way of mortgage by word of mouth.)

Further, this document should have been registered under the Bills of Sale Act, 17 & 18 Vict. c. 36, s. 2 (1), being subject to a defeasance.

COCKBURN, Ch. J.:

There should be no rule in this case. This document was not intended to operate as a bill of sale, and, as it imports, it was only a receipt for the purchase-money. If it had been so intended, I think that it was not given subject to a defeasance within the 17 & 18 Vict. c. 36, s. 2, but that it was intended that the property should pass, and the engagement that if the money was repaid, the property should revest was a separate and independent engagement.

WIGHTMAN, J.:

The case is the same as if the barge had been actually delivered over to Thomson at the time, and then let by him to Mallett, in which case Mr. Woollett admits that it would have an unconditional sale. It has been decided that a receipt like this for part of the purchase-money does not require to be registered under the 17 & 18 Vict. c. 36: Hale v. The Metropolitan Saloon Omnibus Company (2). That case is precisely

in point.

CROMPTON, J.:

There was no evidence of any bill of sale or written assignment. The right question was left to the jury and properly decided. The questions of apparent possession or defeasance do not properly arise now, and I say nothing about them. An absolute or conditional sale may be by word of mouth. The jury having found that this document was not a record of the transaction, it does not require to be registered.

(1) Repealed, see now Bills of Sale Act, 1878, s. 4.

(2) 113 R. R. 430 (4 Drew. 492; 28 L. J. Ch. 777).

The only question is, was this a mere receipt for the balance of the purchase-money? The case cited is an authority that it was, and such a document is not within the Bills of Sale Act, as appears from the interpretation clause.

Rule refused.

OF THE

NEW YORK

LAW, INSTITUTE

[In this and future indexes only cases reproduced at large will be included.]

ACTION, NOTICE OF-County court bailiff-Wrongful seizure-
Goods of B. taken under warrant against goods of A.-Act done in
pursuance of statute. Burling v. Harley

APPEAL-1. To Privy Council. See Practice, 1.

2. From justices. See Justices, 1-3.

684

ARBITRATION-Decision of arbitrators, whether binding between
parties to trade dispute. Hill v. Levey.

593, 599

ATTACHMENT-Solicitor-Contempt of Court-Order for declaring
profession and address of plaintiff. Malpass v. Mudd.

. 675
ATTACHMENT OF DEBT-Joint judgment against several-Debt
due to one-Common Law Procedure Act, 1854 (17 & 18 Vict. c. 63),
s. 61 [now R. S. C., Order XLV.]. Miller v. Mynn
582

AUCTIONEER-Liability-Lot knocked down to owner when sale
stated to be without reserve. See Sale of Goods, 10.

844

BAILMENT-Trover for goods-Jus tertii-Warehouseman-Dis-
puting title of bailor--Pleading. Thorne v. Tilbury
BANKRUPTCY-1. Discharge Surety under annuity bond - Lia-
bility for arrears of annuity accruing due subsequent to discharge in
bankruptcy. White v. Corbett .

405

2. Property of bankrupt-Goods in possession-Order and dis-
position of bankrupt-Agricultural implement-Steam engine-Part
payment of purchase-money-Engine mortgaged to seller for balance—
Engine let on hire by bankrupt at time of bankruptcy-Trover and
conversion. Hornsby v. Miller
. 176

3.

Policy of insurance-Suicide of insured after bankruptcy
-Claim by assignees. See Insurance (Life).

4. Protection order-Arrest-Want of reasonable or probable
cause-Malice-Procedure for recovery of poor rate payable after
bankruptcy. Phillips v. Naylor

600

BILL OF EXCHANGE AND PROMISSORY NOTE-1. Acceptance
--Authority to accept-Evidence of partnership-Estoppel. Gurney v.
Evans

2.

623

Company-Personal liability of directors where bill not
binding on Company-False representation-Proof of actual damage.
Eastwood v. Bain
961

-

3. Consideration Burden of proof Accommodation bill
Evidence of fraud-Breach of trust by bailee of bill for discount. Hall v.
Featherstone
692

4. Indorsement-Company-Indorsement by directors-Transfer
of right to sue on bill-Bill indorsed "per procuration"-Partner-
Notice of authority-Pleading. Smith v. Johnson

665

BILL OF EXCHANGE AND PROMISSORY NOTE-5. Indorsee of
overdue bill-Equities attaching to bill - Discharge of bill by sale
of goods deposited as collateral security-Pleading. Holmes v. Kidd
1025

6. Notice of dishonour-Sufficiency of notice Question for jury.
Paul v. Joel
. 791

7. Presentment for payment-Sufficiency-Indorsee-Present-
ment at place named in address but not in place named in acceptance.
Saul v. Jones

.

. 137
8. Presentment to acceptor not excused, as between
drawer's indorsee and the indorsee of that indorsee by mere fact that
drawer had not, at time when presentment should have been made, any
effects in hands of acceptor. Saul v. Jones
137
9. Promissory note-Company-Directors-Joint promise to pay
-Personal liability of directors. Lindus v. Melrose .
. 636
BILL OF SALE-1. Attestation-Affidavit-Description of attesting
witness-Occupation-"Gentleman "-Solicitor acting as solicitor's
clerk. Tuton v. Sanoner

2.

690

Sufficiency of affidavit of attesting witness-Description
of residence and occupation-Person making affidavit also attesting
witness. Routh v. Roublot
. 490

3. Description of assignor or attesting witness-No state-
ment of occupation-Evidence-Burden of proof. Sutton v. Bath . 741
4. Description of chattels assigned - Assignment of power
looms, &c.-Right of assignee to healds, reeds, &c. attached to looms
when in use. Cort v. Sagar

. 731

5. Fraudulent assignment-Effect on subsequent bona fide sale
-Description of assignor in affidavit of registration-"Gentle-
man "-Colliery agent, for some time without employment. Morewood
v. South Yorkshire Rail., &c. Co.:
. 981
6. Registration-Receipt for purchase-money, not intended to
operate as a record of a sale absolute or conditional of chattels, does
not require registration under Bills of Sale Act. Thomson v. Barrett 1052

7. Two bills of sale granted in respect of same property-Goods
seized and sold under first bill though that bill not duly registered-
Trover by assignees in bankruptcy of grantor-Defendant held not
entitled to set up title of grantee under second bill. Nicholson v. Cooper
742

CARRIER-1. Carriage by water-Negligence-Special contract--
Notice limiting liability-Handbill-Further notice on freight note,
whether qualifying terms. Phillips v. Edwards.
990
2. Railway Company-Negligence-Carriage of fish-Delay in
delivery-Reasonable time. Wren v. Eastern Counties Railway.. 1048
Loss of goods-Action by consignee-Property in goods
-Contract-Acceptance and receipt of goods. Coombs v. Bristol and
Exeter Rail. Co.

3.

4.

. 828
Payment of compensation to person by whom goods
delivered without notice that he was agent-Accord and satisfaction-
Pleading. Coombs v. Bristol and Exeter Rail. Co.

5.

. 590

Duty of carrier where consignee refuses to pay carriage
-Tender of cost of carriage-Right to send back goods to place
of receipt-Reasonable time-Lien-Trover-Evidence of conversion.
G. W. Rail. Co. v. Crouch .
. 639

6.

Insurable interest in goods carried. See Insurance

(Fire), 1.