Transfer in perty in chattels. for a debt (y), they do not apply to documents accompanying transactions in which the possession of goods is transferred as security for a debt, as in the case of a pledge (2). And sales (a) and mortgages, which operate as complete assurances of the property in goods and are valid and perfect without the aid of writing, are not affected by the provisions of the Acts (b). The main provisions of the Bills of Sale Acts are stated in the Appendix (c), to which the reader is referred for more particular information concerning them. They are important, but exceedingly complicated, and difficult to understand. As we shall presently see, mortgages of goods, which remain in the mortgagor's possession, order or disposition in his trade or business, are liable to be avoided in the event of his bankruptcy, though duly made and registered under the Bills of Sale Acts. A few words may be added with respect to the equity of pro- transfer in equity of property in chattels. This takes place either by the creation by one, who is both legal and beneficial owner of chattels, of a trust in favour of another, or by the assignment by one, for whom chattels are held in trust, of his equitable interest therein. As we have seen (d), a trust of chattels may be well declared by word of mouth, and is valid, without any transfer of possession, though not made for valuable consideration. In other respects the creation of trusts of chattels is governed by the same rules as in the case of land (e). Thus equity will not lend its aid to perfect or uphold an incomplete transfer of the legal owner (y) Ex parte Parsons, Re Townsend, 16 Q. B. D. 532. (2) Ex parte Hubbard, Re Hardwick, 17 Q. B. D. 690; Hilton v. Tucker, 39 Ch. D. 669; Morris v. Delobbel Flipo, 1892, 2 Ch. 352; Charlesworth v. Mills, 1892, A. C. 231. (a) Ante, p. 77. (b) Newlove v. Shrewsbury, 21 Q. B. D. 41; see Re Watson, Ex parte Official Receiver, 25 Q. B. D. 27 Beckett v. Tower Assets Co. 1891, 1 Q. B. 638. (c) Appendix (A.), post. (e) See Williams, R. P. 171173, 17th ed. ship of chattels intended as a gift (f). And trusts may be implied from the acts of parties as well as expressly declared. For instance, when particular chattels become subject to a contract to transfer them made by their owner and capable of specific enforcement, a trust will be implied in favour of the intended transferee, and the equitable ownership of the goods will pass to him accordingly (g). With regard to the transfer of the equitable ownership of chattels by one, on trust for whom they are held, the Statute of Frauds requires all assignments or grants of any trust or confidence to be in writing signed by the assignor, or by will (h); and makes no mention of any exception in the case of chattels (i). All written declarations of trust of chattels made without transfer, and all written agreements, by which a right in equity to any personal chattels is conferred, are now subject to the provisions of the Bills of Sale Acts, 1878 and 1882, unless made for the benefit of creditors generally or by way of marriage settlement. They must therefore be duly attested and registered under the Act of 1878, if intended to operate as an absolute equitable transfer of the chattels, or else they will be liable to be avoided, as against the creditors of the transferring party, with respect to any chattels which remain in his apparent possession, for more than seven days after their execution; and if made by way of security for the payment of money, they must be duly made and registered in accordance with the forms required by the Act of 1882, or else they will be absolutely void (k). As we have seen (l), transfers of (f) Richards v. Delbridge, L. R. 18 Eq. 11. (g) See Burn v. Carvalho, 4 My. & Cr. 690; Ex parte Montagu, Re O'Brien, 1 Ch. D. 554; post, p. 90. (h) Stat. 29 Car. II. c. 3, s. 9. (i) See Pollock on Contract, 207, 4th and 5th ed.; Lewin on Trusts, ch. 29, s. 1, § 3, p. 779, 9th ed. (k) See stats. 41 & 42 Vict. c. 31, ss. 4, 8, 10, 11; 45 & 46 Vict. c. 43, ss. 3, 4, 8-10; stated in Appendix (A.), post. (1) Ante, p. 77; see Appendix (A.), post. A grant cannot be made of that in has no actual or potential property. goods in the ordinary course of business of any trade or calling are excepted from the provisions of the Bills of Sale Acts; and so are delivery orders and similar documents of title to goods. Although the property in personal chattels may be freely aliened, it is impossible for a man to which a man make a valid grant in law of that in which he has no actual or potential property, but which he only expects to have. A person who has an interest in land may grant all the fruit which may grow upon it hereafter (a). So a grant of the next year's wool of all the sheep which a man now has is valid, because he has a potential property in such wool (b). But a grant of the wool of all the sheep which a man ever shall have is void (c). And in the same manner the assignment of a man's stock-in-trade passes the property, or legal ownership, in such articles only as are his at the time he executes such assignment, and does not pass the property in any other articles which he may afterwards purchase (d); not even if the instrument of assignment should purport to convey all goods which should at any time thereafter be in or upon his dwelling-house (e). But a man may contract to transfer the property in chattels, which may afterwards come to belong to him; and, if the contract be made for valuable consideration and the chattels be sufficiently identified, he may be compelled, under the equitable jurisdiction of the court to enforce the specific performance of contracts, to transfer his ownership in such Contract to assign afteracquired chattels. (a) Grantham v. Hawley, Hob. 132; Petch v. Tutin, 15 M. & W. 110; see also Clements v. Matthews, 11 Q. B. D. 808; Cf. Williams, R. P. 65 and n. (h), 17th ed. (b) Per Pollock, C. B., 15 M. & (c) Com. Dig. tit. Grant (D). & Gr. 245; S. C. 6 Scott, N. R. 967. (c) Lunn v. Thornton, 1 C. B. 379; Gale v. Burnell, 7 Q. B. 850; Belding v. Read, 11 Jur. N. S. 547; 3 H. & C. 955; Collyer v. Isaacs, 19 Ch. D. 342; Joseph v. Lyons, 15 Q. B. D. 280; Hallas v. Robinson, ib. 288. chattels, when he shall have acquired them (g). And any instrument purporting to assign chattels to be afterwards acquired can only take effect as a contract to transfer the legal ownership in such chattels, when they shall have been acquired (h). But in consequence of the doctrine that equity treats as done what is agreed to be done (i), when any chattels become. subject to a contract to assign them, which is capable of being specifically enforced, the equitable interest therein passes to the intended assignee so soon as the intending assignor has acquired the legal ownership of them (k). For directly the intending assignor comes to be the legal owner of any such chattels as he has contracted to assign, a trust is imposed upon him by the rules of equity in favour of the intended assignee. Thenceforward the former is in the position of a trustee, holding his legal rights for the benefit of the latter. The latter will not, however, be invested with the legal ownership of such chattels, until it be transferred to him by delivery of possession, or other effectual means (1). The Bills of Sale Act of 1882 now makes (g) Holroyd v. Marshall, 10 H. L. C. 191; Brown v. Bateman, L. R., 2 C. P. 272; Blake v. Izard, 16 W. R. 108; Clements v. Mattheurs, 11 Q. B. D. 808; Joseph v. Lyons, 15 Q. B. D. 280; Re Clarke, 35 Ch. D. 109; 36 Ch. D. 348; Tailby v. Official Receiver, 13 App. Cas. 523. It is a question whether a contract, that all the personal property which a man may afterwards acquire shall be charged with a debt, is not void; Re Count D'Epineuil, 20 Ch. D. 758; see 36 Ch. D. 352, 357; 13 App. Cas. 530, 531, 535. But a contract made in consideration of marriage by an intended husband to convey all the personal property, to which he might afterwards become entitled, upon the trusts of the marriage settlement has been held to be a valid contract; Lewis v. Madocks, 8 Ves. 150; 17 Ves. 48; Hardy v. Green, 12 Beav. 182; Fyfe v. Arbuthnot, 1 De G. & J. 406; Re Turcan, 40 Ch. D. 5. (h) Holroyd v. Marshall, 10 H. L. C. 191; Collyer v. Isaacs, 19 Ch. D. 342; Joseph v. Lyons, 15 Q. B. D. 280; stat. 56 & 57 Vict. c. 71, s. 5. (i) See Williams, R. P. 174, 17th ed. (k) Langton v. Horton, 1 Hare, 549; Holroyd v. Marshall, 10 H. L. C. 191; Brown v. Bateman, L. R. 2 C. P. 272; Blake v. Izard, 16 W. R. 108; Clements v. Matthews, 11 Q. B. D. 808; Tailby v. Official Receiver, 13 App. Cas. 523. (1) See Lunn v. Thornton, 1 C. B. 379; Clements v. Matthews, 11 Q. B. D. 808; Joseph v. Lyons, 15 Q. B. D. 280; Hallas v. Robinson, ib. 288. Thus under Kramię Personal incapacity. void (with certain specified exceptions), except as against the grantor, all written assignments, made by way of security for the payment of money, of any tangible goods, of which the grantor is not the true owner at the time (m). Certain exceptions are made to the general right of alienating chattels on account of personal incapacity. By the common law, an alien or foreigner was under great restrictions as to the acquirement of real estate (mm); but was under no disability with respect to the acquirement of property in chattels personal (n). And at common law, an alien, if not an enemy, might bring The Naturali personal actions (o). Under the Naturalization Act, 1870 (p), an alien now stands on the same footing as a natural-born British subject with regard to real as well as personal property. The gift or conveyance of an infant or person under the age of twenty-one years is zation Act, 1870. Infant, idiot and lunatic. mortgage of chattels to be after- assent of both parties. But in this last case, unless the contract be for the sale of some specific chattel to be afterwards acquired by the seller, no equitable interest will pass to the buyer upon the mere acquisition by the seller of goods of the description sold; for the court will not enforce the specific performance of a contract for the sale of goods, unless they be specified or ascertained; see ante, p. 19, note (i), and cases cited in note (g), above. (m) Stat. 45 & 46 Vict. c. 43, ss. 5, 6, stated in Appendix (A); see Kelly v. Kellond, 20 Q. B. D. 569, 574; S. C. sub nom. Thomas v. Kelly, 13 App. Cas. 506. (mm) Williams, R. P. 276, 17th ed. (n) And. 25; 1 Black Comm. 360. |