MURRAY AND ANOTHER v. MACKENZIE AND ANOTHER. Bill of Sale-Misdescription of Residences of Maker and attesting Witness— 17 & 18 Vict. c. 36, s. 1. In a bill of sale the maker was described as "W. C., of No. 37, Malpas Road, Deptford," and the attesting witness as "E. W., 2, South Terrace, Hatcham Park Road;" and in the affidavit filed with it the deponent stated that "the said W. C. resided at No. 73, Malpas Road, Deptford,” and that he himself resided at "3, South Terrace, Hatcham Park Road: " Held, a fatal misdescription. INTERPLEADER ISSUE to try whether certain goods and chattels in 37, Malpas Road, Lewisham, seized in execution by the sheriff of Kent under a writ of fi. fa. upon a judgment of this Court, obtained by the defendants in an action against William Cave, were, or some part thereof was, at the time of the seizure, the property of the plaintiffs as against the defendants. At the trial before Denman, J., at the sittings in Middlesex after Trinity Term, 1874, the plaintiffs in support of their claim relied upon a bill of sale, bearing date the 13th of September, 1871, whereby the goods in question were conveyed to them by the execution debtor. In the bill of sale, the maker was described as "William Cave, of No. 37, Malpas Road, Deptford, in the county of Kent, builder," and the attesting witness was described as "Edmund White, 2, South Terrace, Hatcham Park Road, New Cross, commissionagent." And, in the affidavit filed with the bill of sale, the deponent swore that he was present and did see William Cave, in the said bill of sale mentioned, and whose name was signed thereto, sign and execute the same on the said 13th of September, in the year aforesaid, and that the said William Cave "resides at No. 73, Malpas Road, Deptford, in the county of Kent, and is a builder;" and further "that the name Edmund White set and subscribed as the witness attesting the due execution thereof is of the proper handwriting of me this deponent, and that I reside at 3, South Terrace, Hatcham Park Road aforesaid, and am a commissionagent." It was objected on the part of the defendant that there was a VOL. X. 2 Z 2 1857 May 22. 1875 MURRAY V. MACKENZIE. fatal variance between the description of the places of residence of the maker of the bill of sale and of the attesting witness as stated in the bill of sale itself, and that contained in the affidavit. The learned judge overruled the objection, and directed a verdict to be entered for the plaintiffs. Nov. 7, 1874. Day, Q.C., pursuant to leave reserved to him at the trial, obtained a rule nisi to enter a verdict for the defendants, or for a new trial, on the ground of misdirection in this, that the description of the maker of and attesting witness to the bill of sale was wrongly stated in the affidavit upon registration, and that the judge should have so held. May 22, 1875. Warton (Joyce, Q.C., with him) shewed cause. An imperfect description in the affidavit may be cured by a reference to the bill of sale: Jones v. Harris. (1) [GROVE, J. In that case there was an imperfect description of the party in the affidavit; here it is an erroneous description. No one, looking at the two instruments, would know which was right, the bill of sale or the affidavit.] The statute is satisfied if the description is reasonably sufficient. If the maker of the bill of sale had been described as of "Malpas Road, Deptford," without any number, that would have been enough; there being evidence that he was well known there. A letter so addressed would have reached him. No one could have been misled by the erroneous statement. [LORD COLERIDGE, C.J. The question is whether the terms of the statute are satisfied. The object of the enactment is that a searcher may be able to identify the party without trouble.] It would be no great hardship if the person seeking information had to go to both numbers. In Briggs v. Boss (2), the description of the attesting witness in the affidavit was, "I reside at Hanley, in the county of Stafford, and am an accountant;" it appeared that he was not an accountant, but only a clerk to an accountant; and yet the description was held to be sufficient. Blackburn, J., there says: "The statute requires that together with the bill of sale there should be filed an affidavit giving the description of the residence and occupation of the person making the bill of sale, and (1) Law Rep. 7 Q. B. 157. (2) Law Rep. 3 Q. B. 268. of every attesting witness to it. The object was, that, when a bill of sale is filed, such a description of the person giving it and of the witnesses to its execution should be given as that persons who may have had dealings with the grantor, or are otherwise interested in the matter, may receive such information as would enable them to trace out who is the person that is giving the bill, and who are the attesting witnesses, so as to ascertain the bona fides of the transaction. The question is, what is such a sufficient description? If we were to require the minutest accuracy in these particulars, we should often upset an honest transaction; on the other hand, if we were to allow great looseness, or any misdescription, we should be enabling parties to evade the statute. The description, as it seems to me, must be such as would enable a man readily and without difficulty to find out who the parties are. It is not enough that the description would not mislead; there must be sufficient to guide the person in his search." The question is whether the descriptions here given are not sufficient within that rule. Lush, J., adds: "Primâ facie the description would not be sufficient; but the evidence shews that post letters with no fuller address than 'Hanley' constantly reach him," the attesting witness. Hewer v. Cox (1) also shews that the real principle is, that the description shall be such as that persons looking at the documents could not be misled. Lumley Smith, contrà, referred to Larchin v. North Western Deposit Bank. (2) There, the grantor of a bill of sale was described in the affidavit filed under the Bills of Sale Act, as an "accountant." He was in fact a clerk in the accountant's department at the Euston Square station of the London and North Western Railway Company, but in his leisure time was occasionally employed to balance tradesmen's books; and this was held to be an insufficient description. Blackburn, J., there said: "The object of the Act is, to give notice to all who are likely to deal with the grantor of the bill of sale; not to enable a person who is curious on the matter to trace him out, but to enable one who is asked to give him credit to know at once, by looking at the register, whether the person he is asked to give credit to has executed a bill of sale. The description given here would not (1) 3 E. & E. 428; 30 L. J. (Q.B.) 73. (2) Law Rep. 10 Ex. 64. 1875 MURRAY v. MACKENZIE. 1875 MURRAY V. MACKENZIE. convey such information; and to allow it to be good would in effect strike out of the Act the words which require a description of the grantor's 'occupation.' In Briggs v. Boss (1) we went quite as far as we ought to go." LORD COLERIDGE, C.J. I am of opinion that this rule should be made absolute. The question is whether there has been a compliance with s. 1 of the Bills of Sale Act, 17 & 18 Vict. c. 36, which requires the bill of sale, or a copy, to be filed in the Court of Queen's Bench twenty-one days after the making or giving thereof, "together with an affidavit of the time of such bill of sale being made or given, and a description of the residence and occupation of the person making or giving the same, and of every attesting witness to such bill of sale." Here, the affidavit filed in pursuance of the statute describes the residence of the maker of the bill of sale as "No. 73, Malpas Road, Deptford," and that of the attesting witness as No. 3, South Terrace, Hatcham Park Road, New Cross;" whereas the residence of the former as stated in the bill of sale was "No. 37, Malpas Road, Deptford," and that of the latter "No. 2, South Terrace, Hatcham Park Road, New Cross:" and we are called upon to say whether that is a true description of the parties within the meaning of the statute. I must confess I should have thought the matter too clear for argument. To say that we may reject the numbers altogether, is a mere fallacy. The object of the Act, as is said by Blackburn, J., in Larchin v. North Western Deposit Bank (2), is, "to give notice to all who are likely to deal with the grantor of the bill of sale; not to enable a person who is curious on the matter to trace him out, but to enable one who is asked to give him credit to know at once, by looking at the register, whether the person he is asked to give credit to has executed a bill of sale." The description here is not, as in Jones v. Harris (3), an insufficient statement of the residences of these parties, but a misstatement. If an inquirer went to No. 73, Malpas Road, or to No. 3, South Terrace, to look for the maker of the bill of sale or the attesting witness, he would find some one else living at both (2) Law Rep. 10 Ex. 64. (3) Law Rep. 7 Q. B. 157. (1) Law Rep. 3 Q. B. 268. those places. The bill of sale does not, as in that case, supply a defect or imperfection in the affidavit; but the one contradicts the other. Both cannot be right, and there is nothing on the face of them to shew which is right. This, no doubt, is an extremely technical objection. But it is a strictly valid one. There is a misdescription of that which the statute requires to be described truly. GROVE, J. I am of the same opinion. I am at a loss to see what could be said to be a non-compliance with the statute if this is not. In Jones v. Harris (1), the affidavit did not contain all that was necessary; and the insufficiency was allowed to be supplied by a reference to the bill of sale. In Briggs v. Boss (2) the mistake was in an unnecessary addition to the description of the attesting witness; and, if that case did apply, the case in the Exchequer Chamber, Larchin v. North Western Deposit Bank (3), very much shakes its authority. Here, the statute clearly has not been complied with. ARCHIBALD, J. I am of the same opinion. The main object of the Act was to defeat secret bills of sale. And, in order to carry out that object, it requires that with every bill of sale there shall be filed an affidavit of the time of such bill of sale being made or given, and a description of the residence and occupation of the person making or giving the same, and of every attesting witness to such bill of sale. The documents filed here do not in any sense contain a description of the residences of the maker of the bill of sale and of the attesting witness, and therefore the requirements of the statute have not been complied with. LINDLEY, J. I am of the same opinion. The statute is imperative. If the bill of sale is filed without a substantially strict compliance with its requirements, it is to be null and void. Attorney for plaintiff: W. E. Barron. (1) Law Rep. 7 Q. B. 157. Rule absolute. (2) Law Rep. 3 Q. B. 268. (3) Law Rep. 10 Ex. 64. 1875 MURRAY V. MACKENZIE. |