poses of the Act shall be deemed guilty of wilful and corrupt CHAPTER XIV. perjury. execution. An affidavit of due execution, and consequently the registra- Affidavit of tion of a bill of sale will be void, if sworn before a commissioner of oaths who has acted in the matter as solicitor for the grantee (n). A reference by the grantor to an affidavit, as sworn before a commissioner of a wrong Court, the commissioner being also a commissioner of the right Court, did not invalidate the affidavit (0). date of execution. The affidavit to be filed on registration must state the true Statement of date on which the bill of sale was executed; but a statement that the bill of sale was executed on the day on which it is dated is sufficient (p). The affidavit must also state that the bill was duly executed Statement of and attested. due execution and attesta attestation. The decisions as to the sufficiency of the affidavit of due attes- tion. tation for the most part relate to attestation by a solicitor and Sufficiency of explanation of the effect of the bill, which are no longer required in the case of bills of sale given by way of security (2). It would seem that in the case of any attesting witness, no less than in the case of a solicitor, it is not necessary to say in so many words that the witness attested, if the fact may be gathered upon reading the whole affidavit (r). It is sufficient if the description of the grantor is in the intro- Description of grantor. ductory part of the affidavit (s). A description in the bill of sale is not enough; there must be the description in the affidavit filed with it (t). If there is no description in the affidavit (u), or if the description therein is untruly stated (x), the defect cannot be supplied by reference to the bill of sale. But if the description in the affidavit is ambiguous, it is sufficient if the copy of the bill of sale annexed to the affidavit gives the requisite information with reasonable certainty, so as to identify the grantor (y). (n) Baker v. Ambrose, (1896) 2 Q. B. 372. (0) Cheney v. Courtois, 32 L. J. N. S. C. P. 116. (p) Lamb v. Bruce, 45 L. J. Q. B. 538. (9) See ante, p. 241. (r) Yates v. Ashcroft, 31 W. R. 156. See Cooper v. Zeffert, 32 W. R. 402. 98. (s) Blaiberg v. Parke, 10 Q. B. D. 90. (y) Jones v. Harris, L. R. 7 Q. B. CHAPTER XIV. Sufficiency of description. Description where several grantors. An affidavit, which in effect verified the correctness of the descriptions and residences of the parties as contained in the bill of sale, was held to be sufficient (a). Where the description of the residence and occupation was contained in the bill of sale, but the occupation was not described in the affidavit, the Act was not complied with (b), though the grantor was referred to in the affidavit as the said C. B. (c). The sufficiency of the description is a question for the judge, and not for the jury (d). The burden of proof is on the person seeking to impugn the description (e). A description by a deponent to the best of his belief is sufficient (f). A description of the deponent in the affidavit itself is sufficient (g). The description must be of the residence and occupation at the time of swearing the affidavit, and not of executing the bill of sale (h). But this did not apply when, after execution, the grantor left his residence for America (i). If there are two grantors, the affidavit must describe the residence and occupation of both. So, where a bill of sale was executed by two grantors, of whom one was in possession of the goods at the time of their seizure under a fi. fa., an affidavit describing the residence and occupation of that grantor only was held to be insufficient (k). But in a case where a bill of sale and the affidavit filed on its registration described the grantors (who were father and son) by their true addresses, and added that they were manufacturers carrying on business together under a specified firm; and it appeared that they had, in fact, formerly carried on the business of manufacturers in partnership, but, at the time when the bill of sale was executed, the partnership had been dissolved, and the business was being carried on by the father alone, the son being in his employment as a clerk; the property comprised in the deed in fact belonged to the father alone, though both father and son joined in the assignment; the father alone CHAPTER XIV. filed a liquidation petition: it was held that there was no misdescription of the grantors such as to affect the validity of the registration, first, because the son not being a bankrupt, any misdescription of him was immaterial; secondly, because as to the father, the statement that he was carrying on business with the son was mere surplusage, and was not misleading (1). The Bills of Sale Act, 1854, did not require the name of the Name of grantor to be stated; neither do the Acts of 1878 and 1882 (m); grantor. and accordingly, where in an affidavit, as well as in the bill itself, the christian name of the grantor was wilfully misstated, for the purpose of concealing the fact that he had given a bill of sale, it was held that, it not being alleged that the execution. creditor was misled by the description, the registration was not thereby rendered invalid (n). In both the cases last cited the Court laid stress on the fact that it was the christian name, and not the surname, which was misstated, and pointed out that a person searching the register would look to the surname, not to the christian name. But in a later case a bill of sale given in an assumed name, by which alone the grantor was known in the locality where she resided, was held to be duly executed and registered (o). Both in the case of the grantor and of the attesting witness, the requirement as to residence is complied with by reference to the place of business or employment, though he sleep elsewhere (p). If he has two residences, it has been held in one case that they must both be stated (9); but it seems to be now settled that it is sufficient to state the principal place of residence or business (). A witness, if a clerk or otherwise employed by another person, may describe himself as such, and give as his address his employer's place of business, provided that he is habitually to be found at that address, so that persons interested in the goods can be sure the inquiries addressed there will reach him (s). (1) Exp. Popplewell, Re Storey, 21 Ch. D. 73, C. A. (m) Exp. McHattie, Re Wood, 10 Ch. D. 398, C. A. (n) Downs v. Salmon, 20 Q. B.D. 775. (0) Central Bank of London v. Hawkins, 60 L. T. 901. (p) Blackwell v. England, 8 E. & B. 541; Attenborough v. Thompson, 2 H. & N. 559. (a) Wallis v. Smith, W. N. (1882) 77. (8) Simmons v. Woodward, (1892) CHAPTER XIV. Mistake in description. Description of attesting witness. Description of witness as "gentleman." Descriptions held to be insufficient. An erroneous addition (s) or omission (t) in the statement of the residence, if not calculated to mislead, will not vitiate the affidavit. A mistake in the number of the street has been held to be fatal (u). A statement that the attesting witness was "residing at Acton, in the city of London," was held not to vitiate the affidavit, though Acton is in Middlesex (x). The affidavit must contain the description of every attesting witness (y). No statement of the occupation of a trading company is necessary, nor of its directors, who sign the bill of sale as such for the purpose of authenticating the seal, and accordingly are not considered to be attesting witnesses within the Act (≈). A peer is sufficiently described by his title (a). The description "gentleman," which means a person without an occupation (6), was held to be improperly applied to a clerk in a government office (c); to a solicitor (d); to an attorney's clerk (e); to a person who had been an attorney, but was acting as clerk to another attorney (f); to a traveller for a house of business (ƒ); in fact, to anyone who has an employment (g); but it is sufficient if the witness has no employment, or no regular employment (h), or if he is only a dormant partner in a firm (i). The following descriptions were held not sufficient :"accountant," by a clerk in an accountant's office (k); “esquire,' when the grantor was manager of a theatre (7); "as of the City of Cork, law clerk," as not giving sufficient facility for (s) Hewer v. Cox, 3 E. & E. 428; (x) Blount v. Harris, 4 Q. B. D. (y) Pickard v. Marriage, 1 Ex. D. 364; Nicholson v. Cooper, 3 H. & N. 384. (2) Shears v. Jacob, L. R. 1 C. P. 513; Deffell v. White, L. R. 2 C. P. 144. (a) Re Earl of Limerick, 7 Ir. Jur. N. S. 65. (b) Gray v. Jones, 14 C. B. N. S. 743. (c) Allen v. Thompson, 1 H. & N. 15; Brodrick v. Scale, L. R. 6 C. P. (d) Tuton v. Sanoner, 3 H. & N. 280. (e) Dryden v. Hope, 9 W. R. 18. (f) Matthews v. Buchanan, 5 T. L. R. 373. (g) Beales v. Tennant, 29 L. J. Q. B. 188; Adams v. Graham, 33 L. J. Q. B. 71. (h) Morewood v. S. Yorkshire Rail. fc. Co., 3 H. & N. 798; Sutton v. Bath, 3 H. & N. 382; Smith v. Cheese, 1 C. P. D. 60. (i) Feast v. Robinson and Fisher, W. N. (1894) 14. (k) Larchin v. North-Western Deposit Bank, L. R. 10 Ex. 64, not extending Briggs v. Boss, L. R. 3 Q. B. 268. 63. (1) Exp. Hooman, L. R. 10 Eq. finding the witness if required (m); "until lately a commercial CHAPTER XIV. traveller," when he was a commercial traveller (n); “tutor,” when he was a schoolmaster (o). Where the grantor of a bill of sale in the affidavit filed under sect. 10 described himself as carrying on business as a wine merchant, he being in fact only a paid manager, the misdescription was held fatal (p). held to be The following descriptions were held sufficient: "now in no Descriptions occupation," of a person formerly in the militia (q); "govern- ficient. ment clerk," being a clerk in the Admiralty (r); "widow," where the witness was widow and executrix of her husband, a farmer, winding up the business through a bailiff (s); “wife of" A. B., where the witness was a lessee of a public-house, in which her husband carried on business under a licence taken out in his name (†). If the grantor or witness exercises more than one occupation, it would seem to be sufficient if the principal occupation is stated in the affidavit (u). A future occupation which is merely in prospect, and has not actually commenced (x), or an occupation which has ceased (y), need not be described. But the ordinary occupation of a person should be stated, though he is out of employment at the time of making the affidavit (≈). xvi.—Renewal of Registration.—By sect. 11 of the Act of 1878, it is enacted as follows: "The registration of a bill of sale, whether executed before or after Renewal of the commencement of this Act, must be renewed once at least registration. every five years, and, if a period of five years elapses from the registration or renewed registration of a bill of sale without a renewal or further renewal (as the case may be), the registration shall become void. "The renewal of a registration shall be effected by filing with the registrar an affidavit stating the date of the bill of sale, and of the last registration thereof, and the names, residences, and occupations (m) Re Hams, 10 Ir. Ch. R. 100. (n) Castle v. Downton, 5 C. P. D. 56. (0) Lee v. Turner, 20 Q. B. D. 373. (p) Cooper v. Davis, 32 W. R. 329, C. A. (a) Trousdale v. Shephard, 14 Ir. C. L. R. 370. (r) Grant v. Shaw, L. R. 7 Q. B. 700. (s) Luckin v. Hamlyn, 18 W. R. 43; Exp. Chapman, W. N. (1881) 109, C. A. (t) Usher v. Martin, 61 L. T. 778. (u) Throssell v. Marsh, 53 L. T. 321; Exp. National Deposit Bank, Re Wills, 26 W. R. 624. The rule appears to be different in Ireland. See Re Fitzpatrick, 19 L. R. Ir. 206. (x) Exp. Chapman, Re Davey, 45 L. T. 268. (y) Exp. National Mercantile Bank, 15 Ch. D. 42, C. A. (z) Sharp v. McHenry (No. 2), 38 Ch. D. 427. |