Chap. XIV. having an interest in the land (†); and that the next year's § 2 (viii). wool of sheep belonging to the grantor was capable of being assigned (u). If, however, there was a foundation of interest, it was not necessary that a grantor should actually be in possession of the property from which the produce assigned was to issue. So a security was held to extend to growing crops on a farm not then occupied by the grantor (x), and to goods in a house afterwards built (y). Right to growing crops after tenant. After a bill of sale of growing crops by a tenant, the landlord and tenant agreed to a surrender of the tenancy; the legal title surrender by in the growing crops vested in the landlord, which the grantee under the bill of sale had no equity to displace, and the value of the crops being less than the cost of reaping and the rent due at the time of the surrender, under no view could the bill of sale holder claim anything (≈). Machinery. Plant. What is apparent possession. This question not material as to bills of sale by way of security. Before the present Bills of Sale Acts it was held that machinery, substituted for machinery specifically assigned by way of mortgage, might be effectually included in the security (a). Horses of a cab proprietor are not "plant" within the meaning of sect. 6 (2) of the Act of 1882 (b). ix.-Apparent Possession.-Section 4 of the Act of 1878 further enacts as follows:: "Personal chattels shall be deemed to be in the 'apparent possession' of the person making or giving the bill of sale, so long as they remain in or upon any house, mill, warehouse, building, works, yard, land, or other premises occupied by him, or as they shall be used and enjoyed by him in any place whatsoever, notwithstanding that formal possession thereof may have been taken by or given to any other person." This section is identical with sect. 7 of the Act of 1854, and the decisions as to apparent possession under the earlier Act appear to be still applicable. Inasmuch, however, as, by virtue of sect. 5 of the Act of 1882 (c), the validity of bills of sale given after the 1st November, 1882, by way of security, depends (t) Grantham v. Hawley, Hob. 132. (x) Carr v. Allatt, 27 L. J. Ex. 385. (2) Clements v. Matthews, 11 Q. B. D. 808, C. A. (a) Holroyd v. Marshall, 10 H. L. C. 191; Leatham v. Amor, 47 L. J. Q. B. 581; Lazarus v. Andrade, 5 C. P. D. 320. (b) London and Eastern Counties Loan, &c. Co. v. Creasey, (1897) 1 Q. B. 768, C. A. (c) See ante, p. 221. not upon apparent possession, but upon true ownership at the Chap. XIV. time of giving the bill, it is obvious that, except as regards bills § 2 (ix). so given before that date and subsequently renewed, and as regards absolute bills of sale (the consideration of which is not material to the present purpose), the doctrine of apparent possession is of no practical importance. The decisions on apparent possession will, therefore, be here very briefly noticed. unregistered Before the Act of 1882 came into operation, all bills of sale, Avoidance of whether given absolutely or by way of security, were required bills of sale. by sect. 8 of the Act of 1878 (d) to be registered within the time and in the manner prescribed; or, otherwise, such bills of sale were to be deemed to be fraudulent and void as against trustees and execution creditors of the persons whose goods were comprised in such bills of sale so far as regards chattels which, at the time of such person's bankruptcy or liquidation or process executed, and after seven days after the making of the bill of sale, were in the possession or the apparent possession of the person making the bill of sale. grantee If, after any bill of sale, possession is taken by the grantee Possession by within the time prescribed by the Act, and retained, the case within seven does not fall within the Act, and no registration is necessary, as days. there is not "apparent possession" within that time (e). The occupation of the grantor must be an actual de facto occupation; his being a tenant of the premises, but residing elsewhere, is not sufficient (f); and wrongful possession takes the case out of the statute (g). The possession of the bailee of the grantor is the possession of the grantor (h). sion of hus Where furniture was assigned by a husband for valid con- Joint possessideration to a trustee for his wife's separate use, and the furni- band and ture remained in the joint possession of the husband and wife, wife. the assignment was held to fall within the Act, the joint possession not being sufficient to prevent its operation (¿). Where joint owners of chattels mortgage them by an un- Joint owners. registered bill of sale, and one becomes bankrupt, his moiety of the (d) This section is repealed by sect. 15 of the Act of 1882, but so as not to affect the validity of anything previously done. (e) Marples v. Hartley, 3 E. & E. 610; Hall v. Day, 5 L. T. N. S. 398; Hollingsworth v. White, 6 L. T. N. S. 604, Q. B. Exp. Harris, inf.; Banbury v. White, 2 H. & C. 300; Minister : v. Price, 1 F. & F. 686. (f) Robinson v. Briggs, L. R. 6 Ex. See Exp. Morrison, Re Westray, 42 L. T. 158. 1. (g) Exp. Fletcher, 5 Ch. D. 809, C. A. (h) Ancona v. Rogers, 1 Ex. D. 285. (i) Ashton v. Blackshaw, L. R. 9 Eq. 510; but see Ramsay v. Margrett, (1894) 2 Q. B. 18, C. A. Chap. XIV. § 2 (ix). Growing crops. Grantor manager. Man in possession. Other acts of taking possession. Demand insufficient. chattels at the date of the bill of sale alone passes to the trustee (k), though he had subsequently purchased the other moiety (k). Where a purchaser of growing crops had taken charge and employed labourers of his own to tend and cultivate them, the land remaining in the possession of the vendor, it was held that enough had been done to take the goods out of the apparent possession of the vendor (/). Where the grantor was manager of the business and used the furniture comprised in the bill of sale as part of his salary, the goods were held to be in his apparent possession (m). If a purchaser lets the chattels to the vendor without change of possession, the case falls within the Acts. When the debtor and his family were allowed the use of the goods, they were held to be in his apparent possession (n), although a man was formally in possession for the grantee (o). It was otherwise where the goods were under the control of the man in possession, who was there to see that the use was in accordance with the rights of the bill of sale holders (p). To satisfy the Bills of Sale Acts, the possession must be apparent as well as real (p); but under the order and disposition clause in bankruptcy, a real possession, even though it be friendly, is sufficient (q); and where some part of the grantor's family only was left in possession, the delivery was held complete (»). By packing up to send away, the grantee takes possession within the Act (s). An advertisement for sale by the grantee in possession, though in the house of the grantor, was sufficient possession in the former (t); but a placard for sale, not specifying for whom, amounted to nothing (†). Actual possession must be taken by the grantee; a demand, accompanied by a threat to take the goods by force, will not be sufficient (u); the effect of such demand is different under the reputed ownership clause in bankruptcy, for after demand the (k) Exp. Brown, Re Reed, 9 Ch. D. 389, C. A. (1) Gough v. Everard, 2 H. & C. 1 ; doubting Sheridan v. McCartney, 11 Ir. Com. L. R. 506. (m) Pickard v. Marriage, 1 Ex. D. (n) Exp. Jay, L. R. 9 Ch. 697. Mutton, L. R. 14 Eq. 178; Seal v. (p) Re Francis, 10 Ch. D. 408, 414, C. A. (q) Re Francis, 10 Ch. D. 408, C. A. (r) Davies v. Jones, 10 W. R. 779. (s) Exp. Jay, L. R. 9 Ch. 697. (t) Emanuel v. Bridger, L. R. 9 Q. B. 286. (u) Ancona v. Rogers, 1 Ex. D. 285. See Exp. Conning, L. R. 16 Eq. 414. goods cannot be said to be in the possession of the debtor with Chap. XIV. the consent of the true owner (the creditor) (x). § 2 (ix). Where a bill of sale holder put a man in possession of the grantor's premises and advertised his goods for sale, but allowed the grantor to remain in the house, it was held that this amounted to taking actual possession of the goods (y). Possession of the sheriff under an execution by the grantee or Possession of a third person at the time of filing the petition for bankruptcy, takes the case out of the statute (z), although the name of the grantor, with that of another person, is on the door of the workshop (). So, also, it would seem, possession by a receiver (a). Where the holder of an unregistered bill of sale seized the goods comprised therein, and afterwards sold them bonâ fide to the son of the grantor, in whose home the grantor lived, it was held that the bill of sale being satisfied and gone, the Bills of Sale Act did not apply, and that the goods were not in the apparent possession of the grantor so as to render them liable to seizure by an execution creditor (b). x. Power of Seizure.-By sect. 7 of the Act of 1882, it is enacted as follows: sheriff. "Personal chattels assigned under a bill of sale shall not be liable Bill of sale to be seized or taken possession of by the grantee for any other with power to than the following causes: seize, except in certain events, to be (1.) If the grantor shall make default in payment of the sum or (2.) If the grantor shall become a bankrupt, or suffer the said (3.) If the grantor shall fraudulently either remove or suffer the said goods, or any of them, to be removed from the premises; (4.) If the grantor shall not, without reasonable excuse, upon demand in writing by the grantee, produce to him his last receipts for rent, rates, and taxes; (5.) If execution shall have been levied against the goods of the grantor under any judgment at law; (x) Brewin v. Short, 1 Jur. N. S. 798; Exp. North-Western Bank, L. R. 15 Eq. 69; Exp. Harris, L. R. 8 Ch. 48; Exp. Ward, L. R. 8 Ch. 144. (y) Smith v. Wall, 18 L. T. N. S. 182. (z) Exp. Saffery, 16 Ch. D. 668, C. A. (a) Taylor v. Eckersley, 5 Ch. D. 740. (b) Swire v. Cookson, 49 L. T. 736, C. A. Chap. XIV. § 2 (x). Effect of this section. (1) Default in payment. Default in of covenants Provided that the grantor may, within five days from the seizure or taking possession of any chattels on account of any of the abovementioned causes, apply to the High Court, or to a judge thereof in chambers, and such Court or judge, if satisfied that, by payment of money or otherwise, the said cause of seizure no longer exists, may restrain the grantee from removing or selling the said chattels, or may make such other order as may seem just.' This section incorporates into every bill of sale an implied power of seizure in any of the events mentioned (c). But an express power to seize the chattels may be inserted in a bill of sale, provided such power does not purport to be exerciseable in any event not specified in the section (d), and if the bill contains a proviso that there shall be no seizure for any cause other than those mentioned in the section (e). Sect. 7 applies to goods seized after the commencement of the Act under a bill of sale registered before the Act (ƒ). If the bill expressly or impliedly provides for the seizure of the goods for any cause other than those specified in sect. 7, the bill will be void (g); and in that case the proviso will not save the bill (h). The default in payment giving rise to the power of seizure must be default "in payment at the time provided" by the bill of sale. A power to seize in default of payment on demand (i), or within a specified time after demand (k), will avoid the bill. Default in payment of capitalized interest cannot be made enforceable by seizure (). The power will be exerciseable on default in payment of any one instalment, though the bill contain no express provision to that effect (m). It would seem that the power of seizure, being by sect. 7 performance made exerciseable on default in performance of a covenant necessary for maintaining the security, will not be exerciseable on default in observance of a negative covenant (n). And necessary for maintaining the security. (c) Watkins v. Evans, 18 Q. B. D. 386, C. A. (d) Exp. Official Receiver, Re Morritt, 18 Q. B. D. 222, C. A. (e) Duff v. Valentine, W. N. (1883) (f) Exp. Cotton, 11 Q. B. D. 301. (h) Re Williams, Exp. Pearce, 25 Ch. (i) Hetherington v. Groome, 13 Q. B. D. 789, C. A.; but see Re Bullock, Exp. Ward, (1899) 2 Q. B. 517. (k) Bishop v. Beale, 1 T. L. R. 140; Clemson v. Townsend, 1 C. & E. 418. See Sibley v. Higgs, 15 Q. B. D. 619; and see further on this point, post, p. 249. (1) Davis v. Burton, 11 Q. B. D. 537, C. A. (m) Re Wood, Exp. Woolfe, (1894) 1 Q. B. 605. (n) Hyde v. Warden, 3 Ex. D. 72. |