§ 8. bring such bills within the meaning of Sect. 15 of the Act of Act 1882. 1882 (Ex parte Izard re Chapple, supra). So, also, it has been held that Sects. 3 and 8 of the 1882 Act were not retrospective so as to render a bill of sale given in 1873, the registration of which within five years had not been renewed, void as against an execution creditor under the Act of 1882, but that such bill of sale was void for want of re-registration under the Act of 1878 (nn). But although a bill of sale has been executed and registered prior to the commencement of the Act of 1882, yet if it is sought to enforce the security subsequently to such commencement, then the provisions of Sect. 7 of the Act of 1882 will apply to such security (6). The formal matters now therefore necessary to be done to Requisites of give effect to the security are (1.) Due attestation (see Sect. 10 of 1882 Act as to mode of attestation). (2.) Registration within seven clear days after execution (00). (3.) The setting forth of the consideration. The effect of the non-compliance with all or any one of these conditions will not be, as formerly, to make voidable the bill of sale in certain other events, as under the repealed Sect. 8 of 1878 Act, but rather to render the security absolutely void as regards the property comprised therein. The inference is that it is not void, in toto, and the question may still arise whether it is to be also void as against the grantor, as its validity will not now depend upon the acquisition of possession by the grantee, the better opinion would seem to be that it would. On the other hand, it must be remembered the expression "bill of sale" has still the same meaning as in the principal Act, and that the object of the Acts is to compel registration in favour of creditors (p). The consideration. the Acts. What amounts in particular cases to a true setting forth of What is a true the consideration has been the subject of much litigation, and statement of the considerathe following principles may be deduced from the cases. The tion. consideration need not be set forth with minute accuracy, provided it is truly and substantially stated, and therefore it was held not necessary to set forth a collateral agreement as to the (nn) Swire v. Cookson, 48 L. T. 877. (0) Ex parte Cotton, 11Q. B. D. 301. (00) As to mode of registration see 1878, sects. 10 to 14, and 1882, sect. 11, and rules and orders. (p) See Davis v. Goodman, 5 C. P D. 128, 49 L. J. C. P. 344, 42 L. T. 288; also Baghott v. Norman, 41 L. T. 787, V. C. M. Act 1882. application of the money. Thus, "in consideration of £2050 § 8. paid to the grantor at or before the execution of the bill of sale," was held a true statement of the transaction, which consisted in the grantor receiving £2050 and at once handing back £550 to the grantee in satisfaction of a previous debt (pp). And the true recital of the real legal consideration in the way in which it would be stated in any ordinary mortgage of real estate will be sufficient (q). The consideration is held to be that which the grantor receives for giving the bill of sale, and not necessarily the amount secured by it; therefore if money is advanced on the security of a bill of sale, and by previous agreement between the parties is applied in paying off an antecedent debt (although not then actually payable, as in the case of negotiable securities not arrived at maturity) owing by the grantor to the grantee or to any other person, or the costs attending the preparation and execution of the bill of sale and properly payable by the borrower, such agreement as to the application of the advance need not be stated (r). And where the consideration was stated to be the payment of a specific sum, and the fact was some part of the amount had been paid two months earlier, the consideration was held to have been sufficiently stated (s). Credit Co. v. A. being indebted to B. gave him a bill of sale to secure the sum of £7350, which in stating the accounts between them was found to be the balance due, and by the bill of sale this sum was to be paid by A. with interest on demand. The bill of sale recited that B. had agreed to lend A. £7350, and the consideration was stated to be £7350 "then paid by B. to A. It was held the consideration was truly set forth, although the debt was an antecedent one, and no money passed at the time the bill of sale was given (t). And where a bill of sale was stated to have been executed in order to induce the grantee not to take proceedings against the grantor, it was held to be valid, (pp) Ex parte National Mercantile Bank, re Haynes, 15 Ch. D. 42, 49 L. J. Bank. 62, 43 L. T. 36, in which Ex parte Carter, re Threappleton, 12 Ch. D. 908, was questioned. (9) Ex parte Winter, re Fothergill, 44 L. T. 323. (r) Ex parte Challinor, re Rogers, 16 Ch. D. 260, 44 L. T. 122; and Hamlyn v. Betteley, 5 C. P. D. 327, 49 L. J. C. P. 465. (s) Carrard v. Meek, 50 L. J. Q. B. 187, 43 L. T. 760. (t) The Credit Co. v. Pott, 6 Q. B. D. 295, 44 L. T. 506, 50 L. J. Q. B. 106; but see a case scarcely reconcilable with this view, Ex parte Berwick, re Young, 43 L. T. 576, 29 W. R. 292. Act 1882. § 8. retained. although no such proceedings had been threatened by grantee ("). But on the other hand, where the consideration was stated to be "£560 paid that day," and in fact only £500 was then received by the grantor, and of the remaining £60, £20 were paid to an auctioneer for valuations and £40 retained for costs and charges, it was held the consideration was not truly stated (x). The Act Moneys does not enable a lender to represent as money paid sums kept back by way of discount or interest on advances or bonuses; and notwithstanding the receipt showed the actual disposition of the amount, the receipt, it was held, is not a part of the deed, and cannot be used to contradict the deed itself (y). Nor is the consideration truly stated when the difference between the sum stated to be paid and the amount secured is in respect of sums to be disbursed by the grantee for the grantor, and of sums deducted for expenses of registration (z); but the costs attending the preparation of the deed and of the valuation of the property with a view to the advance fall upon the grantor, and may be deducted out of the money advanced, and in the statement of the consideration treated as money actually received by the grantor, notwithstanding the grantee is himself a solicitor and prepares the deed (a). This case must be read, however, in the light of a recent case (b), in which it is held that if part of the money agreed to be advanced is retained by the lender by the borrower's Payment of direction, given at the time of the bill of sale being executed, in order to satisfy then already existing debts of the borrower, such money retained is properly stated in the consideration as money paid to the borrower, but money retained out of the sum agreed to be advanced on the security of the bill of sale to pay what will not become debts until after the transaction has been completed, as, for instance, the expenses of the transaction, is not properly described in the statement of the consideration as (u) Ex parte Winter, re Fothergill, see supra. (x) Beetenson, ex parte, re Rogers, 42 L. T. 808; and see Ex parte Carter, re Threappleton, 12 Ch. D. 908, 41 L. T. 37. (y) Ex parte Charing Cross Adrance and Deposit Bank, re Parker, 16 Ch. D. 35, 50 L. J. Ch. 157, 44 L. T. 113; and Hamilton v. Chaine, 7 Q. B. D. 319, 50 L. J. Q. B. 456, (z) Ex parte Rolph, re Spindler, (a) Ex parte Challinor, re Rogers, supra. (b) Ex parte Firth, re Cowburn, 19 Ch. D. 419, 51 L. J. Ch. 473. debts. Act 1882. § 8. Bonus. Deduction of interest. Act 1878. § 9. Avoidance of certain dupli cate bills of sale. money paid to the borrower (c). But where a bill of sale was expressed to be made in consideration of £242 advanced by the grantee to the grantors, and the grantors agreed to repay the advance, together with a sum of £100 by way of interest and bonus, in certain instalments, and there was also a verbal agreement by the grantee not to register the bill of sale, in consequence of which he charged a larger bonus for the advance than he would otherwise have done, it was held that the agreement not to register was only a collateral agreement, and not a part of the consideration for the bill of sale, and that therefore it was unnecessary to state it in the deed (d). And a mere deduction of interest from the sum paid, the facts having been clearly recited and the interest and sum actually paid being together described in the loan, will not render the deed void (e). 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 this Act. Prior to the passing of the above section, and under the Act of 1854, which contained no similar provision, it was not uncommon for persons to give successive bills of sale by way of renewal, and so as to keep up the security without the necessity (e) And see Ex parte Bolland, re Roper, 21 Ch. D. 543. (d) Ex parte Popplewell, re Storey, 21 Ch. D. 73, 52 L. J. Ch. 39. (e) Collis v. Tuson, 46 L. T. 387. for registration, and in effect to defeat the provisions of the Act, the last bill of sale having been dated or given at some period within the twenty-one days then limited for registration. The present Act not only reduces the time to seven days, but also avoids all bills of sale given within that period in respect of the same or part of the same debt, and of the same or part of the same personal chattels; but the section is not to affect the bona fide correction of some error in the former bill of sale. It is to be observed the words are "within or on the expiration of seven days," and as the latter words have no meaning and are surplusage, the effect is that the above section does not affect a subsequent bill of sale executed after seven days in renewal of the original bill of sale (ƒ). The effect, it is submitted, of the section is not to render the bill of sale absolutely void, so that if there should be a further advance secured by the new bill as well as the original debt, to the extent of such advance the bill will be valid; and the same doctrine will apply to additional goods, given to secure the old debt, to the extent of such additional goods (g). The new Act of 1882 has made no change in this provision. Act 1878. § 9. Act 1882. § 9. A bill of sale made or given by way of security for the payment of money by the grantor thereof shall be void unless made in accordance with the form in the schedule Avoidance of to this Act annexed. The form given by the Act will be found in the Appendix. The Act does not require the bill of sale to be in the form prescribed, but only "in accordance with " it. The chief characteristic of the form would seem to be brevity, but it does not secure lucidity. It provides, after the date, for the consideration and the acknowledgment of it; the form allows for the insertion of a consideration other than money; then follow general words referring to the schedule (so that nothing but scheduled goods are to be assigned), assigning the chattels as security; then an agreement to pay by instalments at the stipulated times; and then space is left for such conditions and stipulations necessary to maintain the security as are supposed to be comprised in Sub-sect. 1 of Sect. 7, and with a proviso restricting the seizure to such conditions as are in Sect. 7. (f) Carrard v. Meek, 50 L. J. C. P. 187; 43 L. T. 760. (g) See Robson, Bankruptcy, 4th ed. p. 538. certain successive bills of sale. |