Bills of Sale Act 1879 (WA)

WESTERN AUSTRALIA,

ANNO QUADRAGESEVIO TERTIO

VICTORI}E REGINA,.

No. XTX.

AN ACT to consolidate and amend the Law for preventing Frauds upon Creditors by Secret Bills of Sale of Personal Chattels.

[Assented to, 19th September, 1879.]

H eRhEtiAn itto o o t iodnaat oahnadt ear s , einoda the e a 41 and 42 Viet., c 31.

isbTlr Olfie:latletoocf s repeal

so much of the Ordinance 30th Victoria, No. 5, as renders mortgages of sheep, cattle, and horses valid without delivery to the mortgagee: Be it enacted by I-Es Excellency the Governor of Western Australia and its Dependencies, by and with the advice and consent of the Legislative Council thereof, as follows :-

1 THIS Act may be cited for all purposes as " The Bills of Sale Short title.

Act, 1879."

2 THIS Act shall come into operation on the first day of Commencement.

January, one thousand eight hundred and eighty, which day is in this Act referred to as the commencement- of this Act.

2   430 HUMBLE, N©. 19.

The Bills of Sale Act, 1879.

Application of Act. 3 THIS Act shall apply to every bill of sale executed on or

after the first day of January, one thousand eight hundred and eighty, (whether the same be absolute, or subject or not subj ect to any trust) whereby the holder or grantee has power, either with or without notice, and either immediately or at any future time, to seize or take possession . of any personal chattels comprised in or made subject to such bill of sale.

Interpretation of terms. 4 IN this Act the following words and expressions shall have

the meanings in this section assigned to them respectively, unless there be something in the subject or context repugnant to such construction; (that is to say,)

The expression " bill of sale" shall include bills of sale, assignments, transfers, declarations of trust without transfer, inventories of goods with receipt thereto attached, or receipts for purchase moneys of goods, and other assurances of personal chattels, and also powers of attorney, authorities, or licenses to take possession of personal chattels as security for any debt, and also any agreement, whether intended or not to be followed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shall be conferred, but shall not include the following documents ; that is to say, assignments for the benefit of the creditors of the person making or giving the same, marriage settlements, transfers or assignments of any ship or vessel or any share thereof, transfers of goods in the ordinary course of business of any trade or calling, bills of sale of goods in foreign parts or at sea, bills of lading, India warrants, warehouse- keepers' certificates, warrants or orders for the delivery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented:

The expression " personal chattels " shall mean sheep, cattle, and horses, goods, furniture, and other articles capable of complete transfer by delivery, and (when separately as- signed or charged) fixtures and growing crops, but shall not include chattel interests in real estate, nor fixtures (except trade machinery as hereinafter defined), when

assigned

43' VICTORIA, No. 19. 3

The Bills of Sale Act, 1879.

assigned together with a freehold or leasehold interest in any land or building to which they are affixed, nor growing crops when assigned together with any interest in the land on which they grow, nor shares or interests in the stock, funds, or securities of any government, or in the capital or property of incorporated or joint stock companies, nor choses in action, nor any stock or produce upon any farm or lands which by virtue of any covenant or agreement or of the custom of the country ought not to be removed from any farm where the same are at the time of making or giving of such bill of sale:

Personal chattels shall be deemed to be in the " apparent possession " of the person making or giving a bill of sale, so long as they remain or are in or upon any house, mill, warehouse, building, works, yard, land, or other premises occupied by him, or are used and enjoyed by him in any place whatsoever, notwithstanding that

formal possession thereof may have been taken by or

given to any other person:

"Prescribed" means prescribed by rules made under the provisions of this Act.

5 FROM and after the commencement of this Act trade Application of Act to bade

machinery shall, for the purposes of this Act, be deemed to be machinery.

personal chattels, and any mode of disposition of trade machinery

by the owner thereof which would be a bill of sale as to any other

personal chattels shall be deemed to be a bill of sale within the

meaning of this Act.

For the purposes of this Act-

" Trade machinery " means the machinery used in or attached

to any factory or workshop ;

1st. Exclusive of the fixed motive-powers, such as the water- wheels and steam engines, and the steam-boilers, donkey engines, and other fixed appurtenances of the said motive-powers ; and,

2nd. Exclusive of the fixed power machinery, such as the shafts, wheels, drums, and their fixed appurtenances, which transmit the action of the motive-powers to the other machinery, fixed and loose; and,

3rd. Exclusive of the pipes for steam, gas, and water in the factory or workshop.

The

4  430 YICTORI2E, No. 19.

The Bills of Sale Act, 1879.

The machinery or effects excluded by this section from the definition of trade machinery shall not be deemed to be personal chattels within the meaning of this Act.

" Factory or workshop " means any premises on which any manual labor is exercised by way of trade, or for pp". poses of gain, in or incidental to the following purposes or any of them ; that is to say,

(a.)

In or incidental to the making any article or

part of an article; or

(b.)

In or incidental to the altering, repairing, orna-

menting, finishing, of any article; or

(c.)

In or incidental to the adapting for sale any

article.

6 EVERY attornment, instrument, or agreement, not being a

Certain instruments giving mining lease, whereby a power of distress is given or ag reed to be is 0

pOWCVS of distress to be b

subject to this Act. given by any person to any other person by way of security for any

present, future, or contingent debt or advance, and whereby any rent is reserved or made payable as a mode of providing for the payment of interest on such debt or advance, or otherwise for the purpose of such security only, shall be deemed to be a bill of sale, within the meaning of this Act, of any personal chattels which may be seized or taken under such power of distress.

Provided that nothing in this section shall extend to any mortgage of any estate or interest in any land, tenement, or hereditament which the mortgagee, being in possession, shall have demised to the mortgagor as his tenant at a fair and reasonable rent.

7 NO fixtures or growing crops shall be deemed, under this

Fixtures or growing crops	Act, to be separately assigned or charged by reason only that they
not to be deemed separately
assigned when the land	are assigned by separate words, or that power is given to sever
passes by the same instru-	them from the land or building to which they are affixed, or from
ment.	the land on which they grow, without otherwise taking possession of or dealing with such land or building, or land, if by the same instrument any freehold or leasehold interest in the land or building to which such fixtures are affixed, or in the land on which such crops grow, is also conveyed or assigned to the same persons or person.

The

43' VICTO No. 19. 5

The Bills of Sale Act, 1879.

The same rule of construction shall be applied to all deeds or instruments, including fixtures or growing crops, executed before the commencement of this Act and then subsisting and in force, in all questions arising under any bankruptcy, liquidation, assignment for the benefit of creditors, or execution of any process of any court, which shall take place or be issued after the commencement of this Act.

8 EVERY bill of sale to which this Act applies shall be duly Avoidance of unregistered

attested and shall be registered under this Act, within thirty days

bill of sale in. certain. cases.

after the making or giving thereof, and shall set forth the con- sideration 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 authorising 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 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 thirty clays are in the possession or apparent 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).

9 WHERE a subsequent bill of sale is executed within or on Avoidance of certain dupli-

the expiration of thirty days after the execution of a prior

cate bills of sale.

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 bon y, 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.

6   43' VICTOR/111E, No. 19.

The Bills of Sale Act, 1879.

10 A BILL of sale shall be attested and registered under this

Mode of re	in bills of Act in the following manner :
sale,

(1.)	The execution of every bill of sale shall be attested by a solicitor of the Supreme Court, and the . attestation shall state that before the execution of the bill of sale the effect thereof has been explained to the grantor by the attesting solicitor, or in the event of there being no solicitor •er,sielatg=t • practising at, or within five miles of the place of residence of the grantor of such bill of sale, or at the place where he shall execute such bill of sale, then such bill of sale may be attested by a person other than a solicitor ; and in every case where any bill of sale is attested by a person not being a solicitor, the attestation shall state that before the execution thereof the same was read over to the grantor by the attesting. witness;
(2.)	Such bill, with every schedule or inventory thereto annexed or therein referred to, and also a true copy of such bill and of every such schedule or inventory, and of every attestation of the execution of such bill of sale, together with an affidavit of the time of such bill of sale being made or given, and of its due execution and attestation, and a description of the residence and occupation of the person making or giving the same (or in case the same is made or given by any person under or in the execution of any process, then a description of the residence and occupation of the person against whom such process issued), and of every attesting witness to such bill of sale, shall be presented to and the said copy and affidavit shall be filed with the registrar within thirty clays after the making or giving of such bill of sale:
(3.)	If the bill of sale is made or given subject to any defeasance or condition, or declaration of trust not contained in the body thereof, such defeasance, condi- tion, or declaration shall be deemed to be part of the bill, and shall be written on the same paper or parch- ment therewith before the registration, and shall be truly set forth in the copy filed under this Act therewith and as part thereof, otherwise the registration shall be void.

Iii

4' VICTORTIE, No. 19. 7

The Bills of Sale Act, 187.9.

In case two or more bills of sale are given, comprising in whole or in part any of the same chattels, they shall have priority in the order of the date of their registration respectively as regards such chattels.

A transfer or assignment of a registered bill of sale need not be registered.

II THE registration of a bill of sale, and of a mortgage of sheep,

cattle, and horses registered under the provisions of the Ordinance	Renewal of registration.
of the 30th Victoria, No. 5, whether executed before or after the commencement of this Act, must be renewed once at least 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 of the parties thereto as stated therein, and that the bill of sale is still a subsisting security.
Every such affidavit may be in the form set forth in the Schedule (A.) to this Act annexed.
A renewal of registration shall not become necessary by reason only of a transfer or assignment of a bill of sale.

12 THE registrar shall keep a book (in this Act called " the Form of register.

register ") for the piuposes of this Act, and shall, upon the filing of any bill of sale or copy under this Act, enter therein in the form set forth in the second Schedule (B.) to this Act annexed, or in any other prescribed form, the name, residence, and occupation of the person by whom the bill was made or given (or in case the same was made or given by any person under or in the execution of process, then the name, residence and occupation of the person against whom such process was issued, and also the name of the person or persons to whom or in whose favor the bill was given), and the other particulars shown in the said schedule or to be prescribed under this Act, and shall number all such bills registered M each year consecutively, according to the respective dates of their registration.

Upon the registration of any affidavit of renewal the like entry

shall be made, with the addition of the date and number of the last

previous entry relating to the same bill, and the bill of sale or copy

originally

8   430 VICTOBLE, No. 19.

The Bills of Sale Act, 1879.

originally filed shall be thereupon marked with the number zlifixtleide	o f
to such affidavit of renewal.

The registrar shall also keep an index of the names

grantors of registered bills of sale with reference to entries in tile

register of the bills of sale given by each such grantor.

Such index shall be arranged in divisions corresponding with the letters of the alphabet, so that all grantors whose surnames begin with the same letter (and no others) shall be comprised in one division, but the arrangement within each such division need not be strictly alphabetical.

The registrar. ig THE Re gistrar, Master, and Keeper of the Records of the

Supreme Court shall be the registrar under this Act.

Rectification of register. 14 ANY Judge of the Supreme Court, on being satisfied that

the omission to register a bill of sale or an affidavit of renewal thereof within the time prescribed by this Act, or the omission or mis-statement of the name, residence, or occupation of any person, was accidental or due to inadvertence, may in his discretion order such omission or mis-statement to be rectified by the insertion in the register of the true name, residence, or occupation, or by extend. ing the time for such registration on such terms and conditions (if any) as to security, notice by advertisement or otherwise, or as to any other matter, as he thinks fit to direct.

Entry of satisfaction. 15 SUBJECT to and in accordance with any rules to be made

under and for the purposes of this Act, the registrar may order a memorandum of satisfaction to be written upon any registered copy of a bill of sale, upon the prescribed evidence being given that the debt (if any) for which such bill of sale was made or given has been satisfied or discharged.

Copies may be taken, Sce. 16 ANY person shall be entitled to have an office copy or

extract of any registered bill of sale, and affidavit of execution filed therewith, or copy thereof, and of any affidavit filed therewith, if any, or registered affidavit of renewal, upon paying for the same at the like rate as for office copies of judgments of the Supreme Court, and any copy of a registered bill of sale, and affidavit purporting to be an office copy thereof, shall in all courts and before all arbitrators or other persons, be admitted as prima facie evidence thereof, and of the fact and date of registration as shown thereon. Any person shall be entitled at all reasonable times to search the register and every registered bill of sale, upon payment of one shilling for every copy of a bill of sale inspected.

430 VICTORIZE, No. 19. 9

The Bills of Sale Act, 1879.

17 EVERY affidavit required by or for the purposes of this Act Affidavit.

may be sworn before any Commissioner empowered to take affidavits

in the Supreme Court, or before any Justice of the Peace.

Whoever wilfully makes or uses any false affidavit for the pur-

poses'of tins Act shall be deemed guilty of wilful and corrupt perjury.

is THERE shall be paid and received the following fees, viz. : Fees.

On filing a bill of sale

On filing the affidavit of execution of a bill of sale 2s.

On the affidavit used for the purpose of re-register-

ing a bill of sale (to include the fee for filing) 5s.

19 CHATTELS comprised in a bill of sale which has been O rd disposition.. and

and continues to be duly registered under this Act shall not be - nu

deemed to be in the possession, order, or disposition of the grantor of the bill of sale within the meaning of the Bankruptcy Act, 1871.

altered from time to time by the like persons and in the like manner 20 RULES for the purposes of this Act may be made and Rums

in which rules and regulations may be made under and for the

piu-poses of " The Supreme Court Ordinance, 1861."

Sunday, or other clay on which the registrar's office is closed, the Time for registration. 21 WHEN the time for registering a bill of sale expires on a

registration shall be valid if made on the next following clay on

which the office is open.

ments described in Schedule C of this Act shall be repealed: Pro- Repeal of Acts. 22 FROM and after the commencement of this Act, the enact-

vided that (except as is herein expressly mentioned with respect to construction and with respect to renewal of registration) nothing in this Act shall affect any bill of sale executed before the com- mencement of this Act, and as regards bills of sale so executed the Ordinance hereby repealed shall continue in force.

Any renewal after the commencement of this Act of the registra- tion of a bill of sale executed before the commencement of this Act, and registered under the Ordinances mentioned in the said Schedule C, shall be made under this Act in the same manner as the renewal of a registration made under this Act.

In the name and on behalf of the Queen I hereby assent to

this Act.

H. ST. GEORGE ORD, Governor.

SCHEDULES.

10   43° VICTORLE, No. 19.

The Bills of Sale Act, 1879.

SCHEDULES.

Section 11. Schedule A.1

I [A.B.] of do swear

that a bill of sale, bearing date the day of

18 [insert the date of the bill], and made between [insert the names and

descriptions of the parties in the original bill of sale],	and which said bill of
sale [or and a copy of which said bill of sale, as	the case may be] was

registered on the day of 18 [insert

date of registration], is still a subsisting security.

Sworn, &c.

Section 12. Schedule B.

By whom given (or against whom IMICC$9 iSsiled.? Nunn_ Data of

Salisiacticc

entered. No. To whom 6 m ofNiontsutrr ...._ Dateof re- regicl ration

-dude- &indica or affidavit

mea t. of re newal.

Name. Residence. I Occupation.

Schedule C.

27 Viet., No. 10.—" An Ordinance for preventing Frauds The whole.

"upon Creditors by Secret Bills of

"Sale of Personal Chattels."

30 Viet., No. 5.—" An Ordinance to give a preferable In part : namely, so much

"lien on Wool from season to season,	and so far as renders or
" and to render Mortgages of Sheep,	seeks to render valid
" Cattle, and Horses valid without	mortgages of sheep, cat-
"delivery to the Mortgagee."	tle, and horses, without delivery to the mort- gagee.

By Authority : RICnLRD PRIMER, Government Printer, Perth.