. vided there is sufficient distress besides, beasts of the plough and CHAPTER XIV. instruments of husbandry, and the instruments of a man's trade or profession (p). By sect. 13 of the Act of 1882, chattels seized are to remain on the premises, and not to be removed or sold until after the expiration of five clear days from the day of seizure. During this period such of the chattels as are distrainable will continue liable to distraint. But the holder of a bill of sale may, with the consent of the grantor, remove the chattels either before seizure (9), or within the five days thereafter ("); and thereupon the chattels will become the property of the holder so as to exclude the operation of the statute 2 Geo. II. c. 19, by which landlords are empowered to follow goods fraudulently removed, or recover double value; nor will the landlord have any right of action in respect of such removal. It seems that a landlord who has distrained is not bound to hand over any surplus chattels, or proceeds of sale thereof, to the holder of a bill of sale of which he has received notice after distraint (8). Where a grantee of a bill of sale, at the request of the grantor, paid out the landlord, who had distrained, and the grantor failed to repay to the grantee the amount so paid, the grantee was allowed to seize and sell the chattels comprised in the bill of sale (t). As a general rule, a grantee who has paid out a distraining landlord is entitled to be reimbursed by the grantor the money so paid (u). If a landlord distrains chattels, part of which are and part are not comprised in a bill of sale, the holder may require the goods not so comprised to be first applied in payment of the rent (x). A bill of sale holder who delays taking possession of chattels till after expiration of the lease of the premises in which the chattels are, may be treated as a trespasser, and restrained from holding or selling the chattels (y). By sect. 14 of the Act of 1882, a bill of sale within that Act Distress for (p) See Byth. & Jarm Conv. vol. 3, pp. 170 et seq. (4th ed.). See also Lyon & Redman, Law of Bills of Sale, 140. (a) Thornton v. Adams, 5 M. & S. 38; Bach v. Meats, 5 M. & S. 200; Fletcher v. Marillier, 9 A. & E. 457. (r) Tomlinson v. Consolidated Credit Corporation, 24 Q. B. D. 135, C. A. (s) Evans v. Wright, 2 H. & N. 527. (t) Cowley v. Tyler, W. N. (1884) 77. (x) Exp. Stephenson, De G. 586. taxes or rates CHAPTER XIV. is no protection against distress under a warrant for taxes or rates. Where a local authority took proceedings for the recovery of rates levied under the Public Health Act, 1875 (z), in the County Court under sect. 261 of that Act, instead of by distress warrant under sect. 256, it was held that sect. 14 did not apply, and that the grantee of a bill of sale on the goods was protected (a). The question whether a removal is fraudulent or not is a question of fact (b). (3) Fraudulent removal. (4) Nonproduction of receipts for rent, &c. (5) Execution. Proviso as to restraining grantee from It would seem that, if a bill of sale comprises articles likely to be destroyed or injured by removal, an unqualified covenant not to remove the chattels without the consent of the grantee may be deemed a covenant "necessary for the maintenance of the security" within clause (1) of this section, so as, on breach thereof, to give the grantee a right to seize the chattels (c). Goods can only be seized under a bill of sale on the ground of failure to produce receipts, if such failure is without reasonable excuse (d). Where rent has been due only a few days, and the landlord has not yet required payment, this is a reasonable excuse for non-production of the last receipt (e). Where a judgment debtor after seizure under an execution of goods claimed by the holder of a bill of sale, and after an interpleader order had been made, filed a liquidation petition, it was held that the trustee in the liquidation was entitled to the goods subject to the claim of the bill of sale holder (f). But where an interpleader order is made, a claimant under a bill of sale is not entitled to demand from the sheriff any sum not included in the particulars of claim (g). As to the meaning of the word "judgment," see the cases cited below (h). The powers of the Court under this proviso are discretionary (¿), but will not generally be exercised except on the grantor seizing goods. bringing into Court the amount claimed by the grantee (k) ; (*) 38 & 39 Vict. c. 55. (b) John v. Jenkins, 1 Cr. & M. 227. (d) Weardale Coal and Iron Co. v. Hodson, (1894) 1 Q. B. 598, C. A. (e) Exp. Cotton, 11 Q. B. D. 301. (f) Exp. Halling, Re Haydon, 7 Ch. D. 157, C. A. (g) Hockey v. Evans, 18 Q. B. D. 390, C. A. (h) Judicature Act, 1873 (37 & 38 Vict. c. 66), s. 100; R. S. C. 1883, Ord. XLII., rr. 17, 24. But see Cremetti v. Crom, 4 Q. B. D. 225; Exp. Schmitz, Re Cohen, 12 Q. B. D. 509. (i) Exp. Cotton, 11 Q. B. D. 301; Hickson v. Darlow, 23 Ch. D. 690. (k) Hill v. Kirkwood, 42 L. T. 105. unless, in the opinion of the Court, the grantee is acting unreasonably (1). So it would seem that, if the seizure is on the ground of fraudulent removal of the goods, they must be replaced on the premises, so that the cause of seizure may no longer exist, before the grantor can seek relief (1). The application for an injunction should be by summons, supported by an affidavit of the facts; but the Court will not grant even an interim injunction unless the facts raise a primâ facie inference that the cause of seizure no longer exists (m); and an interim injunction will only be granted until a day fixed (m). By sect. 13 of the Act of 1882 it is enacted, that CHAPTER XIV. be removed or sold. "All personal chattels seized, or of which possession has been When taken after the commencement of this Act, under or by virtue of chattels may any bill of sale (whether registered before or after the commencement of this Act), shall remain on the premises where they were so seized or so taken possession of, and shall not be removed or sold until after the expiration of five clear days from the day they were so seized or taken possession of." Where the holder of a bill of sale seized the chattels and, Removal to prevent with the consent of the grantor, removed them within five days distress. after seizure with a view to preventing the landlord distraining upon them, it was held that the landlord had no cause of action under this section for the removal of the goods, and that, inasmuch as the goods were the property of the holder of the bill of sale and not of the grantor, an action for double value under 11 Geo. II. c. 17, s. 3, would not lie for a removal (»). Where a horse and cab, which were comprised in a bill of Goods seized in public sale, were seized by a grantee in a public street and taken by highway. him to his own yard where he kept them for five days, it was held that the grantee had reasonably complied with the requirements of this section, and that the grantor could not recover damages for wrongful seizure (o). grantor after After the expiration of the five days the grantor cannot main- Rights of tain trespass for removal of the goods, for he has no longer the removal. present possession, actual or constructive, nor any legal right to (1) Hickson v. Darlow, 23 Q. B. D. 690. (m) Payne v. Fern, 6 Q. B. D. 620. VOL. I.-R. Corp., 21 Q. B. D. 135, C. A. See (0) O'Neill v. City Finance Co., 17 CHAPTER XIV. possession; but, until the goods are actually sold, he still has an equitable right to redeem them, and may claim damages for any injury done to the goods in removing them (p). 41 & 42 Vict. c. 31, s. 8. Repeal. 45 & 46 Vict. c. 43, s. 8. Distinction between effects of these enactments. Misstatement of consideration. xi.-Statement of Consideration.-By sect. 8 of the Act of 1878, it was provided that every bill of sale should set forth the consideration for which such bill of sale was given, otherwise such bill of sale, as against trustees or assignees in bankruptcy or liquidation, or under any creditor's trust deed, and as against execution creditors, should be deemed fraudulent and void. This section was repealed by sect. 15 of the Act of 1882, so far as relates to bills of sale given by way of security executed since the commencement of the repealing Act, but not so as to affect the validity of anything done or suffered before that date (2). By sect. 8 of the Act of 1882, it is provided that every bill of sale" shall truly set forth the consideration for which it was given; otherwise such bill of sale shall be void in respect of the personal chattels comprised therein." The effect of the two enactments is different. Under the former Act, the effect was to avoid a bill of sale which untruly stated the consideration only as against the persons specified in sect. 8 of that Act, but to leave it valid and binding as between grantor and grantee; but under the present enactment such a bill is absolutely void even as between parties themselves in respect of the personal chattels comprised therein. Under sect. 8 of the Act of 1878, it has been repeatedly held that, if the consideration be not truly stated, the bill of sale, however honest, will be void ("). The deed was held void in the following cases : Where the consideration was stated to be 1207., when really 307. was for interest and expenses, though the attestation clause was followed by a receipt which stated the consideration correctly. Something was kept back for interest which could not be due, and the receipt was not part of the deed (s): Where 7007. was the consideration stated, but 77. 10s. was (p) Johnson v. Diprose, (1893) 1 Q. B. 512, C. A. (7) 1st November, 1882. As to the extent of the repeal, see Swift v. Pannell, 24 Ch. D. 210; Hall v. Smith, W. N. (1887) 170; Exp. Izard, Re Chapple, 23 Ch. D. 409, Č. A. (r) Exp. Carter, 12 Ch. D. 908; Exp. Nat. Merc. Bank, Re Haynes, 15 Ch. D. 42, C. A.; Exp. Ord, W. N. (1881) 30, C. A. (8) Exp. Charing Cross Bank, Re Parker, 16 Ch. D. 35, C. A. retained for commission on the loan and expenses, and not CHAPTER XIV. stated (t): Where part of the consideration was money to be paid at a future day to the landlord for rent not due at the date of the deed, but not stated (u): Where the alleged consideration was "3127. now owing," but in fact 1267., part of that amount, represented the liability of the grantee in respect of certain current bills accepted by him for the accommodation of the grantor, which were, in fact, afterwards paid by the grantee pursuant to arrangement (w): Where the consideration money was stated to be "now paid," but part of the advance consisted of bills of exchange payable twelve months after date (x); so also where part was retained by the grantee to meet running acceptances and to defray certain agreed expenses (y). On the other hand, it is sufficient if the consideration is What statehonestly and substantially stated, so as to show the true nature ment is of the transaction (≈). A mere clerical error or slight inaccuracy in the statement will not avoid a bill of sale which is in other respects in conformity with the Acts (a), if it sufficiently appears from the deed what the consideration really was (b). A statement that the consideration was "327. or thereabouts," was held to be sufficient (c). The consideration may be stated to be partly made up of the charges of the grantee's solicitor for preparing the bill (d). A solicitor acting for both grantor and grantee may, with the consent of the grantor, retain part of the consideration for costs of and incident to the transaction without that fact being mentioned in the bill (e). So, the grantor may hand back to the grantee part of the sufficient. (t) Hamilton v. Chaine, 7 Q. B. D. 319, C. A. See Exp. Firth, Re Cowburn, 19 Ch. D. 419, C. A.; Exp. Challinor, Re Rogers, 16 Ch. D. 260, C. A. (u) Exp. Rolph, Re Spindler, 19 Ch. D. 98, C. A. (w) Mayer v. Mindlevich, 59 L. T. 400. See Darlow v. Bland, (1897) 1 Q. B. 125. (x) Re Moore, Exp. Off. Rec., 4 Mans. 51. (y) Richardson v. Harris, 22 Q. B. D. 268, C. A. (z) Roberts v. Roberts, 13 Q. B. D. 794, C. A. (a) Exp. Winter, Re Fothergill, 44 L. T. 323; 29 W. R. 575, C. A. (b) Roberts v. Roberts, supra; Collis V. Tuson, 46 L. T. 387. (c) Hughes v. Little, 18 Q. B. D. 32, C. A. (d) Cohen v. Higgins, 8 T. L. R. 8. (e) Exp. Hunt, Re Cann, 13 Q. B. D. 36. See Hamlyn v. Betteley, 5 C. P. D. 327. |