Act 1882. of husbandry are exempt, if there be any other sufficient § 7. distress (c). Fraudulent removal. Unless the tenant has given the landlord greater powers, only goods actually found on some part of the demised premises can be distrained. The exceptions to this rule are (1) in the case of cattle on commons appendant or appurtenant to the demised premises; (2) cattle driven off the premises in the sight of the landlord; (3) goods fraudulently or clandestinely removed by the tenant to avoid distress, and which latter goods can be followed within 30 days next ensuing after removal, and seized wherever found (d), unless before seizure they have been bonâ fide sold to a purchaser not privy to the fraud (e). But a grantee of a bill of sale who removes goods to avoid distress for rent is not within the Act, neither can the goods be followed (f). Where a landlord distrained goods, part of which were comprised in a bill of sale and part not so comprised, and sold part of each class of goods, and the tenant then became bankrupt, it was held that the grantee of the bill of sale was entitled to stand in the landlord's place for the purpose of having his debt paid out of the proceeds of the goods taken under the distress which were not comprised in the security (g). If a grantee of a bill of sale in order to prevent the landlord from distraining, promise him to pay the rent then payable if he will not distrain, the promise will support an action for the rent and need not be in writing (h). Fraudulent removal.-An unauthorised dealing with the goods by the grantor (and not sanctioned by the contract itself, or implied from the nature of the security, as in the case of a trader's stock), might be a "fraudulent removal" if attended with fraudulent motives; but the language, however, is not "fraudulent sale;" and it may be questioned whether a mere sale or attempted sale to a third person, not accompanied by "removal" or a change of "locus as to the goods with a view to defeat the security, would be sufficient to entitle the grantee to the benefit of this clause. If the intention of the framers of (c) 51 Hen. 3, stat. ; Davies v. 200. § 7. the Act was to make every attempted disposition of the goods Act 1882. not justified by the contract an event determining the bailment, they have certainly not so stated it. The words "removed from the premises " are scarcely apt, when it is considered that frequently, and indeed in most cases, provision is made in welldrawn bills of sale for the goods to be seized wherever they may be, as from their very nature they possibly are removed bonâ fide from place to place, as, for instance, in the case of cattle taken from one farm to another; but see notes to Sect. 3 (1878). Non-production of rent receipts, &c.-As to what demands Failure to prohave been deemed sufficient (i). No doubt each case will under duce receipts. this clause depend upon its own peculiar circumstances in determining first what is a "reasonable excuse," and what also would be considered a reasonable time given in which to comply with the demand of the grantor; except with such light as the decided cases throw upon the subject, what is "reasonable" must always be a fact to be left to the common sense of the parties and the possibilities of each particular case. But in a recent case where the grantor did not on written demand produce a receipt for rent which had only been a few days due, and of which the landlord had not demanded payment, it was held that the grantor had not failed "without reasonable excuse to produce his last receipt for rent, and the Court had power to restrain the grantee from selling (ii). Execution levied.-The mere anticipation of seizure, or the Execution knowledge that judgment has been suffered to be obtained, will levied. not justify the enforcing of the security, nor even the delivery of the writ to the sheriff, but only actual and positive seizure and levy of the goods. By this sub-section it seems clear that what might have been matter of debate under the old Act is now put beyond a doubt, viz., that the grantor has a right to hold possession of the goods mortgaged pari passu with the sheriff, and notwithstanding they are, so to speak, in custodiâ legis (1). (i) See Ex parte supra, and Fletcher, re Henley, 25 W. R. 573; Belding v. Read, 34 L. J. Ex. 212, 3 H. & C. 955; Massey v. Sladen, L. R. 4 Ex. 13, 38 L. J. Ex. 34; Wharlton v. Kirkwood, 29 L. T. 644; and Ex parte Trevor, re Burghardt, 1 Ch. D. 297. (ii) Ex parte Cotton, 11 Q B. D. 301; and see as to determining the amount to be paid into Court, Hickson v. Darlow, infra (j) See notes. supra. And see as to avoidance of an execution in favour Act 1882. § 7. Act 1878. § 8. Avoidance of unregistered bill of sale in certain cases. Repealed. Generally, also, it must be remembered that it is possible for the grantee, either expressly or by conduct, to waive such of the conditions as have been enacted as events upon the happening of which he may enforce his security. And as to what facts will constitute a waiver, or otherwise, will likewise depend upon the circumstances of each case (k), but it is submitted the grantor cannot waive such conditions. Relief. With respect to the concluding proviso for relief, upon going to the Court it may be questioned whether the right is limited to the grantor strictly, or whether assignees from him would have the same equity to relief should he neglect to avail himself of his power. It is also presumed that relief could only be obtained once in respect of each default, except upon very special grounds; but it is presumed every forfeiture would entitle the grantor to the relief. The Court will not entertain an application under this clause to set aside the deed; it can only see that the cause of seizure no longer exists (/). In staying a sale by the grantee, the Court will order the amount sworn to by him to be brought into Court (l). Every bill of sale to which this Act applies shall be duly attested and shall be registered under this Act, within seven days after the making or giving thereof, and shall set forth the consideration for which such bill of sale was given, otherwise such bill of sale, as against all trustees or assignees of the estate of the person whose chattels, or any of them, are comprised in such bill of sale under the law relating to bankruptcy or liquidation, or under any assignment for the benefit of the creditors of such person, and also as against all sheriffs' officers and other persons seizing any chattels comprised in such bill of sale, in the execution of any process of any court authorizing the seizure of the chattels of the person by whom or of whose chattels such bill has been made, and also as against every person on whose behalf such process shall have been (k) See also Albert v. Grosvenor (2) See note to sect. 13 (1882). Ch. D. 699; 4S L. T. 449, 52 L. J. Ch. 417. And see as to relief against forfeiture under sect. 14 Conv. Act, 1881, Quilter v. Mapleson, 10 Q. B. D. 672. issued, shall be deemed fraudulent and void so far as regards the property in or right to the possession of any chattels comprised in such bill of sale which, at or after the time of filing the petition for bankruptcy or liquidation, or of the execution of such assignment, or of executing such process (as the case may be), and after the expiration of such seven days are in the possession or ap parent possession of the person making such bill of sale (or of any person against whom the process has issued under or in the execution of which such bill has been made or given, as the case may be). This section is now entirely repealed by the 15th section of the Act of 1882; but the repeal saves anything "done or suffered" under the principal Act. It is difficult to say what exactly will be the effect of this repeal upon the rights of persons whose securities have been given in accordance with the law as it stood, and who seek to enforce such securities after the commencement of the Amendment Act, but already the Queen's Bench Division, in Ex parte Cotton (ante), have given quasi retrospective effect to this Act. In the case of the application or otherwise of the order and disposition clause of the Bankruptcy Act, 1869, which was by the principal Act (Sect. 20) repealed (and see note to Sect. 15 of Amendment Act). It is submitted that as the right to seize the chattels in all such cases arises under a transaction "done" under the principal Act, such rights should be determined under that Act and not under the Amendment Act. Inasmuch as the language of Sect. 8 of the Amendment Act points strictly to the future execution of bills of sale, the section, so far as it supersedes Sect. 8 of the principal Act, cannot be held as retrospective, so as to render void an unregistered bill of sale executed prior to the Amendment Act, and Mr. Justice Fry appears to have so decided (m). The Court of Appeal has also held that, notwithstanding the doctrine of relation back, where under a bill of sale executed prior to the commencement of the Amendment Act, the grantee having taken possession prior to the filing of the petition, but after seizure under an execution and with notice of an act of bankruptcy which avoided as against the trustee the execu (m) See Hickson v. Darlow, 23 Ch. D. 690; 48 L. T. 449; 52 L. J. Ch. 417, affirming Fry, J., on this point, and explaining Hill v. Kirkwood, 28 Act 1878. § 8. Act 1882. § 8. Bill of sale to be void unless attested and registered. tion itself, such grantee under the bill of sale was entitled as against the trustee, as Sect. 8 avoided an unregistered bill, as against an execution to the extent only necessary to satisfy the execution (mm). As to the effect of the repeal of this section upon the doctrine of apparent ownership, see notes to Sect. 4. Every bill of sale shall be duly attested; and 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 at which it would in the ordinary course of post arrive in England, if posted immediately after the execution thereof; and 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. Every bill of sale. The retrospective effect of the Amendment Act has, since it came into operation, become, as it necessarily would, the subject of decision. And it has been held that this section is not, by Sect. 3 of the Amendment Act, made retrospective so as to avoid an unregistered bill of sale executed before the Act, and valid as between grantor and grantee (Hickson v. Darlow, supra). So where a bill of sale by way of absolute assignment, dated the 22nd December, 1882, and registered under the Act of 1878, was put in force upon hearing an application for an injunction to restrain the sale of the property comprised in the bill of sale, on the ground that the repeal of Sect. 20 by Sect. 15 of the Act of 1882, was in effect to render the order and disposition section of the Bankruptcy Act, 1869, applicable so as to defeat the rights of the grantee, it was held by Fry, J. (but not without doubt), that the repeal of Sect. 20 of the 1878 Act was limited by the effect of Sect. 3 of the Act of 1882 to bills of sale given by way of security, and could not affect bills of sale given by way of absolute transfer (n). And as to such bills as were duly registered under the Act of 1878, such repeal of Sect. 20 has also no retrospective effect so as to (n) Swift v. Pannell, 48 L. T. 351. (mm) Ex parte Blaiberg re Toomer, 23 Ch. D. 254, 52 L. J. Ch. 461. |