CHAPTER XIV. trust must be one in favour of either the grantor or the Execution by attorney. Bill of sale attested. grantee (a). sale may xiv.-Execution and Attestation of Bills of Sale.-A bill of be executed under a power of attorney, and the grantee is not necessarily excluded from being the grantor's attorney for that purpose (b). By sect. 8 of the Act of 1878 (c), it was provided that every must be duly bill of sale should be duly attested, otherwise such bill of sale, as against all trustees in bankruptcy, &c., should be deemed fraudulent and void. Meaning of "duly attested." Attestation by solicitor. By sect. 8 of the Act of 1882, it is provided that every bill of sale coming within that Act shall be duly attested; "otherwise such bill of sale shall be void in respect of the personal chattels comprised therein." "Duly attested" means attested in accordance with the provisions of the Act and with the statutable form of a bill of sale (d). The form in the schedule to the Act of 1882 requires the address and description of the witness attesting the execution of a bill of sale by the grantor to be given. But where a bill of sale had two separate clauses attesting the execution of the instrument by different grantors, and the same name appeared in both cases as that of the attesting witness thereto respectively, in one case giving, and in the other omitting to give, the address and description of the attesting witness, it was held that the Court might infer from a comparison of the handwriting that the same person attested both clauses, and further, that the omission to repeat the address and description was not such a departure from the statutable form as to avoid the bill of sale (e). By sect. 10 (1) of the Act of 1878, it was provided that the execution of every bill of sale should be attested by a solicitor of the Supreme Court, and the attestation should state that before the execution of the bill of sale the effect thereof had been explained to the grantor by the attesting solicitor. But a bill of sale under the Act, although not so explained and attested, is not void as between the grantor and grantee (ƒ). (a) Robinson v. Collingwood, 10 Jur. N. S. 1080. (b) Furnivall v. Hudson, (1893) 1 Ch. 335. (c) This section is repealed, as to bills of sale by way of security made after the commencement of the Act of 1882; see ante, p. 226. (d) Parsons v. Brand, 25 Q. B. D. 110, C. A. (e) Bird v. Davey, (1891) 1 Q. B. 29, C. A. (f) Davis v. Goodman, 5 C. P. D. 128, C. A.; Exp. National Mercantile Bank, Re Haynes, 15 Ch. D. 42; Hill v. Kirkwood, 28 W. R. 358, C. A. Attestation by the solicitor of the grantee is sufficient (g). The CHAPTER XIV. affidavit must prove the attestation by the solicitor (h). The attesting solicitor may be a managing clerk not practising on his own account (i), and it would seem that he need not hold a certificate entitling him to practise (k). It has been held that the grantee of a bill of sale, although a solicitor, cannot be the attesting witness under sect. 10 of the Act of 1878 (1); and this rule has been incorporated in sect. 10 of the Act of 1882. above By the section last referred to, the above enactment as to Repeal of attestation by a solicitor, and explanation to the grantee, has enactment. been repealed; and attestation by any credible witness, not being a party to the bill of sale, will suffice, so far as regards bills of sale given by way of security on or after the 1st November, 1882 (m). A bill of sale was held to be duly executed where the signa- Position of ture and seal of the grantor were placed at the end of a schedule signature, &c. annexed to the bill (n). A bill of sale may be executed by attorney, and the grantee Execution by is not precluded from being such attorney (0). attorney. sale must be registered. XV.-Registration of Bills of of Bills of Sale-The Affidavit.-By Every bill of sect. 8 of the Act of 1878, it was provided that every bill of sale should be registered under that Act within seven days after the making or giving thereof, otherwise such bill of sale, as against all trustees or assignees, &c., should be deemed fraudulent and void. This section is repealed by sect. 15 of the Act of 1882, but not so as to affect the validity of anything done or suffered under the former before the commencement of the later Act (p). By sect. 8 of the Act of 1882, it is enacted as follows: "Every bill of sale shall be registered under the principal Act within seven clear days after the execution thereof (or if it is executed in any place out of England, then within seven clear days after the time in which it would in the ordinary course of post CHAPTER XIV. arrive in England if posted immediately after the execution thereof); otherwise such bill of sale shall be void in respect of the personal chattels comprised therein." Successive bills of sale. Avoidance of certain successive bills of sale. Correction of mistake. The seven clear days" within which the bill is required to be registered are to be reckoned exclusively of the day of execution. If the seventh day falls on a Sunday, or on a holiday, when the registrar's office is not open, the registration will be valid if effected on the next following day on which the offices are open (0). An imperfect registration does not place the assignee in a worse position than if there were none (p). The registration on the day of the execution is complete, though the consideration was not paid nor the deed attested till after the day of the actual execution (q). Under the Act of 1854, there were conflicting decisions in regard to successive bills of sale, made to avoid registration. The result would seem to be that such transactions, not being forbidden by the Legislature, were to be deemed valid as against an execution creditor (r); but in bankruptcy the successive unregistered bills of sale were not regarded with favour, and the last bill, being for a past debt, was generally treated as void (s). A remedy is effected by sect. 9 of the Act of 1878, by which it is enacted as follows : "Where a subsequent bill of sale is executed within or on the expiration of seven days after the 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 material error in the prior bill of sale, and not for the purpose of evading the Act." If a mistake is made in the first registry, the bill of sale can be re-registered (t). (0) Act of 1878, s. 22. (p) Banbury v. White, 2 H. & C. 300. (g) Darvill v. Terry, 6 H. & N. 807. (r) Hollingworth v. White, 10 W. R. 619, Q. B.; Smale v. Burr, L. R. 8 C. P. 64; Ramsden v. Lupton, L. R. 9 Q. B. 17, Ex. Ch. See Exp. Harris, L. R. 8 Ch. A. 48. (s) Stansfield v. Cubitt, 2 De G. & J. 222, 228; Exp. Cohen, Re Sparke, L. R. 7 Ch. A. 20; Exp. Stevens, L. R. 20 Eq. 786. But see Re Jackson, 4 Ch. D. 682; Exp. Furber, 6 Ch. D. 181. And see Exp. Payne, 11 Ch. D. 539, C. A. (t) Re O'Brien, 10 Ir. Com. Law App. xxxiii. 243 A registered bill of sale, bonâ fide founded on a parol agree- CHAPTER XIV. ment for a bill of sale, is not a subsequent bill of sale within this section (u). The giving of a bill of sale for the purpose of confirming an earlier one supposed to be defective does not cancel the first bill if valid (x). make rules. By sect. 21 of the Act of 1878, power is given to make and Power to alter rules for the purposes of the Bills of Sale Acts, and rules have been made accordingly (y). By sect. 10, sub-s. (2), of the Act of 1878, after making provision as to the execution and attestation of a bill of sale, it is enacted as follows: bills of sale. "Such bill, with every schedule or inventory thereto annexed or Mode of therein referred to, and also a true copy of such bill and of every such registering schedule and inventory, and of every attestation of the execution of and attesting such bill of sale, together with an affidavit of the time of such bill of sale being made or given, and of its due execution and attestation, and a description of the residence and occupation of the person making or giving the same (or in case the same is made or given by any person under or in the execution of any process, then a description of the residence and occupation of the person against whom such process issued), and of every attesting witness to such bill of sale, shall be presented to and the said copy and affidavit shall be filed with the registrar within seven clear days after the making or giving of such bill of sale, in like manner as a warrant of attorney in any personal action given by a trader is now by law required to be filed." By the same section it is provided that bills of sale shall rank Priorities of in priority, inter se, according to the date of registration; the bills of sale. question of such priority will be discussed in a later chapter (z). Where the schedule to a bill of sale described goods by num- The schedule. bers as per catalogue, it was held that the catalogue being referred to not in the bill itself, but only in the schedule, which was treated as distinct from the bill, did not require registration (a). A true copy is not invalidated for clerical errors, such as the What is a mis-spelling of a name (b), or obvious misstatement as to the true copy. date (c), or as to the amount of consideration (d), or as to the place of residence of a party (e), or the omission of a few words (u) Exp. Hauxwell, 23 Ch. D. 626, 637, C. A. (x) Cooper v. Zeffert, 32 W. R. 402, C. A. (y) See R. S. C. LX B, and LXI. (=) Post, Chap. LVI. sect. iii. pp. 1290 et seq. (a) Davidson v. Carlton Bank, (1893) 1 Q. B. 82, C. A. (b) Gardner v. Shaw, 19 W. R. 753; Corbett v. Rowe, 25 W. R. 59. (c) Lamb v. Bruce, 45 L. J. Q. B. 538. See Hollingsworth v. White, 10 W. R. 619. (d) Elliott v. Freeman, 7 L. T. N. S. 715. (e) Exp. McHattie, Re Wood, 10 Ch. D. 398, C. A. CHAPTER XIV, which occur in the original document (ƒ), or if blanks are left which do not occur in the original (g), provided such errors or omissions are not calculated to mislead. Copy of bill of sale to be filed. The registrar. Local registration of contents of bill of sale. Affi lavits. Sect. 10 does not require that the bills of sale and the schedule or inventory should themselves be filed, but only a copy thereof, together with the affidavit, though the originals of all the documents must be presented to the registrar. Under the Act of 1854, which allowed either originals or copies to be filed, it was held that the registration of a copy of a schedule, together with the original bill, was permissible where the original schedule had been disannexed from the bill and lost (). A certificate of the filing of the bill of sale is no proof that a valid affidavit had been filed (i); nor are the contents of a bill of sale proved by the certificate of the Court (k). By sect. 13 of the Act of 1878, it is enacted that- The masters of the Supreme Court of Judicature attached to the Queen's Bench Division of the High Court of Justice, or such other officers as may for the time being be assigned for this purpose under the provisions of the Supreme Court of Judicature Acts, 1873 and 1875, are to be the registrars for the purposes of that Act, and any one of the said masters may perform all or any of the duties of the registrar. The duties of the registering officer are ministerial only, and it is not within his province to inquire whether the bill of sale and affidavit comply with the provisions of the Act (1). By sect. 11 of the Act of 1882, it is provided that in case of the residence of the grantor or the situation of the goods enumerated in the bill of sale being outside the London Bankruptcy district, the registrar under the Act of 1878 must transmit to the local registry, within three days, an abstract of the contents thereof to be filed, kept, and indexed therein, in which searches may be made (m). By sect. 17 of the Act of 1878, it is enacted that Every affidavit required by or for the purposes of the Act may be sworn before a master of any Division of the High Court of Justice, or before any commissioner empowered to take affidavits in the Supreme Court of Judicature. Whoever wilfully makes or uses (g) Sharp v. McHenry (No. 2), 38 (h) Green v. Attenborough, 3 H. & C. 468. (i) Mason v. Wood, 1 C. P. D. 63. any false affidavit for the pur (k) Emmott v. Marchant, 3 Q. B. D. 555. (1) Needham v. Johnson, 15 W. R. 346. (m) See R. S. C., Ord. LXB. And see Trinder v. Raynor, 56 L. J. Q. B. 422. |