CHAPTER XIV. thereof, but also, without special mention, all tenant's fixtures belonging to the mortgagor, and removeable by him as against his landlord (8); but by sect. 7 of the Act of 1878 (t) an assignment of fixtures (other than trade machinery) together with the land, will not require registration by reason only of its specifically mentioning the fixtures assigned. Stock and shares. Choses in action. Book debts. Share in partnership. Rights to chattels. Similarly, an assurance of land will pass the crops growing thereon, and also future crops as they arrive at maturity (u). So a mortgage by a tenant of all his tenant-right and interest yet to come has been held to pass the future crops (x). Sect. 4 of the Act of 1878 also excepts from the definition of personal chattels, for the purposes of the Bills of Sale Acts, shares and interests in Government stocks, &c., and in the capital or property of companies which do not seem to require any detailed consideration; also choses in action (y). The exception of choses in action covers book debts accruing in the ordinary course of trade, a mortgage or charge of which, therefore, need not be according to the statutable form, and will not require registration under the Act (s). If it is intended that stock in trade and book debts should be assigned as a security for the same loan, it will generally be advisable that the two different kinds of property should be assigned by separate instruments (a). A share in a partnership is a chose in action within the exception of sect. 4; so that a mortgage of such a share, though expressly including plant, stock in trade, and effects, is not within the Bills of Sale Acts, and does not require registration (b); such a mortgage only entitles the mortgagee to an account of the profits and property of the partnership, and does not entitle him to seize any specific effects as representing the share of the mortgagor (c). An assignment of rights under an agreement for hire and purchase of furniture is not within the Acts (d). Nor is an assignment of a reversionary interest in chattels bequeathed by will (e). (s) See ante, p. 121. (t) See ante, p. 205. (u) Bagnall v. Villar, 12 Ch. D. 812; Re Gordon, 61 L. T. 299. (x) Petch v. Tutin, 15 M. & W. 110. (2) See further as to mortgages of (a) See post, p. 230. (b) Exp. Fletcher, Re Bainbridge, 8 Ch. D. 218. (c) See post, p. 507. (d) Re Davis, Exp. Rawlings, 22 Q. B. D. 193, C. A. (e) Re Singleton, Exp. Tritton, 61 L. T. 301. vi.-Exception of Debentures.-By sect. 17 of the Act of 1882, CHAPTER XIV. it is enacted that "Nothing in this Act shall apply to any debentures issued by Debentures any mortgage, loan, or other incorporated company, and secured to which Act upon the capital, stock, or goods, chattels and effects of such not to apply. company." enactment. The effect of the exclusion of debentures from the operation Effect of this of the Act of 1882 is to exempt them also from the operation of the Act of 1878, and accordingly from any necessity that they should be registered as bills of sale (ƒ). "debenture." A debenture, within the meaning of this section, may consist Meaning of of a single document charging property with payments of sums advanced by several lenders (g), but the document must create or acknowledge a specific debt (h). trust deed Where debentures were not charged upon any property of the Whether company, but were secured by an assignment of property which covering was not duly registered as a bill of sale, it was held that the must be registered. debenture was not within the exception (i). But in a later case it was intimated that a covering trust deed is not within the Acts, and it was held that, even if the covering deed be void for want of registration, the debentures may be so framed as of themselves to create, by virtue of sect. 17, a valid equitable charge in favour of the debenture holders without registration (k). The words, "or other incorporated company," are not limited What companies are to companies ejusdem generis with mortgage or loan companies, within but include any company for the registration of the mortgages sect. 17. of which provision is made by the Companies Clauses Act, 1845, or the Companies Act, 1862 (7). But companies, in the case of which no statutory provision has been made for the registration of their mortgages, are not exempted by sect. 17 from the necessity that their debentures or mortgages should be registered, and should in other respects comply with the requirements of the Bills of Sale Acts (m). By sect. 1 of the Bills of Sale Act, 1890 (n), letters of hypo- Exemption of (f) Read v. Joannon, 25 Q. B. D. 300. See Re Asphaltic Wood Pavement Co., W. N. (1883) 152; John Welsted & Co. v. Swansea Bank, 5 T. L. R. 332. (g) Edmonds v. Blaina Furnaces Co., 36 Ch. D. 215. See Levy v. Abbercorris Slate, &c. Co., 37 Ch. D. 260. (h) Topham v. Greenside Glazed Firebrick Co., 37 Ch. D. 281. (i) Brocklehurst v. Railway Printing VOL. I.-R. Co., W. N. (1884) 70; Jenkinson v. (1) Re Standard Manufacturing Co., (m) Great Northern Rail. Co. v. Coal P letters of CHAPTER XIV. thecation of imported goods were exempted from the provisions hypothecation of sect. 9 of the Act of 1882, which requires bills of sale to be in of imported goods from accordance with the statutable form in the schedule to that Act, but in other respects the documents so exempted were left within the operation of the Bills of Sale Acts. 45 & 46 Vict. c. 43, s. 9. Exemption of securities on imported goods from 41 & 42 Vict. c. 31, and c. 43. But by the Bills of Sale Act, 1891 (o), it is enacted that sect. 1 of the Act of 1890 shall be read as follows: "An instrument charging or creating any security on, or declaring trusts of imported goods given or executed at any time 45 & 46 Vict. prior to their deposit in a warehouse, factory, or store, or to their being reshipped for export, or delivered to a purchaser, not being the person giving or executing such instrument, shall be deemed a bill of sale within the meaning of the Bills of Sale Acts, 1878 and 1882." Bill of sale to vii.-After-acquired Chattels.-By the Act of 1882, it is enacted as follows: Sect. 4. "Every bill of sale shall have annexed thereto or written have schedule thereon a schedule of the personal chattels comprised in the bill of of property. sale, and such bill of sale, save as hereinafter mentioned (p), shall have effect only in respect of the chattels specifically described in the said schedule; and shall be void, except as against the grantor, in respect of any personal chattels not so specifically described." Bill of sale not to affect property. Sect. 5. "Save as hereinafter mentioned, a bill of sale shall be void, except as against the grantor, in respect of any personal after-acquired chattels specifically described in the schedule thereto, of which the grantor was not the true owner, at the time of the execution of the bill of sale." Exceptions. General effect of above enactments. But sect. 6 thereof excepts out of these sections growing crops separately assigned or charged, and fixtures, plant or trade machinery substituted for fixtures, plant, or trade machinery specifically described in the schedule (g). The effect of these sections (except as regards the articles excluded by sect. 6) is to render nugatory, except as against the grantor, any attempt to assign or charge, by a bill of sale given by way of security for payment of money, any after-acquired chattels of the grantor, whether specifically described or not. And, by the operation of sect. 9 of the same Act, such a bill of sale, purporting to assign after-acquired chattels by a general description, is absolutely void, even as against the grantor (0) 54 & 55 Vict. c. 35. (p) The words, "save as hereinafter mentioned," apparently refer to the exception as regards the grantor in the last clause of this section, as well as to the exception of the things mentioned in sect. 6. (7) See this section set out post, p. 216. himself, as not being in accordance with the statutable form (→). The result is that the law relating to assignments by way of mortgage of after-acquired chattels (with certain exceptions), is virtually abrogated so far as regards instruments made on or after the 1st of November, 1882. CHAPTER XIV. Inasmuch, however, as the inclusion in a bill of sale of after- Inclusion of after-acquired acquired property is nowhere expressly forbidden by the Act property in of 1878 or the Act of 1882, questions may, possibly, still arise bills of sale prior to 1st under bills of sale made previously to that date, and kept alive November, by re-registration, or may arise as between grantor and grantee 1882. under the Act of 1882, and, accordingly, the former law as to assignments of after-acquired chattels will be here very briefly noticed. acquired As a general rule, an assignment would not at common law Afterhave passed chattels not in existence, or not in the ownership of chattels not the grantor, at the time of the assignment, unless the grantor generally assignable at did some act after he acquired the property in furtherance common law. of the original disposition and amounting to a ratification thereof (s), or, unless the mortgage was so framed as to give to the mortgagee licence or a power of seizing future chattels of the grantor as they should be acquired by him and brought upon the premises, and such licence is acted upon (†). But in equity, where the assignment included future chattels, Secus, in equity. or if there was a covenant that all future chattels should be included in the security, the interest in such future chattels passed, and attached without possession as soon as the chattels were brought on the premises (u). Where a bill of sale included future chattels brought on the premises, and the mortgagor became bankrupt and was discharged, it was held that the security did not include chattels brought on the premises after the discharge, for that the assignment of those chattels amounted only to a contract to assign from which he was released by the discharge (x). A power to seize after-acquired goods might be inserted in a Power to (r) Thomas v. Kelly, 13 App. Cas. 506; Hadden, Best & Co. v. Oppenheim, 60 L. T. 962. (8) Bac. Max., r. 14; Perk. Profit, Bk. tit. "Grant," pl. 65. (t) Per Tindal, J., in Lunn v. Thornton, 1 C. B. 379. See Carr v. Allott, 27 L. J. Ex. 385. (u) Holroyd v. Marshall, 10 H. L. C. 191; Congreve v. Evetts, 10 Exch. 298; Hope v. Hayley, 5 E. & B. 830; Carr (x) Collyer v. Isaacs, 19 Ch. D. 342, seize after 212 acquired chattels. CHAPTER XIV. mortgage deed, and would operate by way of licence, which, being for valuable consideration, would be irrevocable (y). Such a power followed by actual seizure, vested the property, at law, in the grantee (≈); and a power to seize would, without actual seizure, create a good equitable charge upon after-acquired chattels, which would have priority over execution creditors (a). If the licence were not so framed as to operate in equity as a present assignment, and if the grantor were to become bankrupt before seizure, the title of his trustee in bankruptcy would prevail (b); but a power to seize future chattels would not of itself make a bill of sale fraudulent and an act of bankruptcy (c). Effect of Intention to include after acquired be clear. The effect of the Judicature Act, 1873 (d), is not to abolish the distinction between legal and equitable interests, but merely to enable all branches of the High Court to administer both legal and equitable principles; and, accordingly, notwithstanding this Act, an assignment of after-acquired chattels still passes only an equitable interest to the assignee, and if, after the chattels have come into existence and before the mortgagee has taken possession of them, another person, without notice of the mortgage, acquires the legal title to the chattels, his title will prevail, both at law and in equity, against that of the mortgagee (e). The intention to include after-acquired property must be clear, and will not be inferred from doubtful expressions (f). chattels must And, accordingly, a bill of sale of the furniture and effects in a certain house, or of bricks, &c., upon certain building land, will not pass after-acquired chattels, though there is a power to enter and seize all goods which may be upon the premises (g). Afteracquired After some conflict of opinion, it is now settled that an 15. 11. (c) Hutton v. Cruttwell, 1 E. & B. (d) 36 & 37 Vict. c. 66, s. 25, sub-s. (e) Joseph v. Lyons, 15 Q. B. D. 280, C. A.; Hallas v. Robinson, 15 Q. B. D. 288, C. A. (f) Tapfield v. Hillman, 6 Man. & Gr. 245. (g) Ibid.; Reeves v. Whitmore, 4 De G. J. & S. 1; Exp. Stephenson, De G. 586. See also Sladden v. Sergeant, 1 F. & F. 322; Lunn v. Thornton, 1 C. B. 379; Gale v. Burnell, 7 Q. B. 850; Rogers v. Kennay, 11 Jur. 14; Platt v. Bromage, 24 L. J. Exch. 63; Collyer v. Isaacs, 19 Ch. D. 342. |