KENNEDY, J.: I agree.

Reed, Q.C., and Muir Mackenzie, for the other respondent, asked for costs. There was no obligation to give notice of this preliminary objection. The ex parte application was wrong.

VAUGHAN WILLIAMS, J.: We refuse costs here. Mr. Reed says there was no obligation to give notice of this objection. I agree as a general rule. Yet it may well be that in this case notice ought to have been given. Mr. Justice DAY gave leave to enter the appeal. All parties thought that that leave made the appeal a living appeal, and on that common assumption they acted. There is nothing, therefore, to prevent us doing what justice requires.

Solicitors: J. D. Valentine Jones, Swansea, for the Appellant. Charles Everett, for Alfred Curtis & Son, Neath, for the Respondents.

1895, May 23. VAUGHAN WILLIAMS AND KENNEDY, JJ.

Bankruptcy Bill of Sale given to Surety-Uncertainty-Statutory Form-Bills of Sale Act, 1882, 8. 9.

A bill of sale given to secure a surety for a debt of the grantor against loss will, if uncertain in its provisions as to the amount and the time of payment, be bad as not in accordance with the statutory form.

Hughes v. Little (1) followed.

THIS was an appeal by the official receiver, acting as trustee in the above bankruptcy, against the refusal of the County Court

(1) 18 Q. B. D. 32; 56 L. J. Q. B. 96; 55 L. T. 476; 35 W. R. 36.

Judge of Devonshire, sitting at Exeter, to declare a bill of sale given by the debtor to be void as against the trustee. The debtor Hill carried on business as a carver and guilder at St. Mary Church, Devon. On 23 February, 1894, Hill's landlord distrained on his goods for 321. 10s., being half a year's rent. Hill thereupon went to see the above-named Ellis, who was an ironmonger, and told him the landlord was willing to withdraw on a promissory note being given him signed by the debtor, Ellis, and one Miss Helen Nickson. Ellis objected to give the note without some security, and it was then arranged that the debtor should give him-Ellisa bill of sale over his-the debtor's-goods at his house, Mentone Villa, to secure the amount. The following promissory note was accordingly given :

"£36 14s. Od.

"TORQUAY, 23 February, 1894.

66

Stamp, 6d.

"On the 7th day of July next, we, the undersigned, hereby jointly and severally promise to pay Mr. Albert Joseph Davy the sum of 361. 14s. 6d., with interest thereon at the rate of 51. per centum per annum, for value received.

"EDWARD HILL.

"HELEN NICKSON. "W. W. ELLIS."

And three days afterwards, on 26 February, 1894, the debtor executed the bill of sale now in question.

"This Indenture made the twenty-sixth day of February one thousand eight hundred and ninety-four Between Edward Hill of Villa Mentone Manor Road Babbacome in the Parish of St. Mary Church in the County of Devon Painter and Lodging House Keeper (hereinafter called the Mortgagor) of the one part and William Wills Ellis of No. 5 Albion Place St. Mary Church aforesaid Ironmonger (hereinafter called the Mortgagee) of the other part Witnesseth that in consideration of the mortgagee having jointly with the mortgagor and Helen Nickson made a promissory note dated the twenty-third day of February one thousand eight hundred and ninety-four for thirty-six pounds

and fourteen shillings payable to Albert Joseph Davy on the seventh day of July next with interest thereon at the rate of five pounds per cent. per annum to secure a debt due from the said Edward Hill and also in consideration of the mortgagee having agreed to pay the sum of three pounds and six shillings for the costs of and incidental to the preparation and registration of this bill of sale (as the mortgagor hereby acknowledges) he the mortgagor doth hereby assign to the mortgagee his executors administrators and assigns all and singular the several chattels and things. specifically described in the schedule hereunder written by way of security for the payment of the sums of thirty-six pounds and fourteen shillings and three pounds and six shillings making the aggregate sum of forty pounds and the interest thereon at the rate of five pounds per cent. per annum And the mortgagor doth further agree and declare that he will duly pay to the mortgagee the aggregate principal sum aforesaid together with the interest then due by equal monthly payments of two pounds on the twenty-sixth day of each month until the whole principal money and interest shall be paid the first payment to be made on the twenty-sixth day of March next And the mortgagor doth also agree with the mortgagee that he will forthwith insure the said chattels and things during the continuance of this security against loss or damage by fire in the sum of one hundred pounds at the least on a policy in the Commercial Union Office or other Insurance Company to be approved by the mortgagee and will punctually pay the premiums on such insurance and will when required produce to the mortgagee the receipt for the current premium and will expend any monies paid in consequence of loss or damage by fire under such policy in discharge of the money secured by these presents And also will punctually pay all rent taxes rates and outgoings to become due and payable in respect of the said premises on which the said chattels and things or any of them are or shall be and also will produce the last receipts for such rents taxes and rates Provided always that the chattels hereby assigned shall not be liable to seizure or to be taken possession of by the mortgagee for any cause other than those specified in section seven of the Bills of Sale Act (1878) Amendment Act (1882) In Witness whereof the parties to these presents

have hereunto set their hands and seals this day and year first above written."

66

[Here followed the Schedule.]

Signed and Sealed by the said Edward

Hill in the presence of

"W. YOUNG SMITH

"Clerk to Mr. A. W. Cowdell Solicitor Torquay

EDWARD HILL."

The amount due on the promissory note for principal and interest-381. 5s. 3d.-was paid by Ellis to Hill's landlord on 16 April, and on the same day Ellis demanded immediate payment of the amount of principal and interest—the said sum of 381. 5s. 3d. -owing to him under the bill of sale. The goods were on the following day sold by arrangement between the parties, and the proceeds applied in paying Hill's landlord and then the bill of sale holder.

Reed, Q.C., and F. Cooper Willis, for the trustee :

This bill of sale was given to indemnify Ellis as surety under the promissory note. Both the amount for which it is given and the time at which the money is to be paid are uncertain. It is therefore not in accordance with the statutory form, and is bad. Hughes v. Little (1) is conclusive.

R. Ringwood (Warmington, Q.C., with him), for Ellis:

This bill of sale does not offend against the authority of Hughes v. Little (1). In the bill of sale there there were several things left uncertain. The words were, "for any moneys she may be called on to pay." Here it is "for payment of the sum of thirty-six pounds." Again, in Hughes v. Little (1) the words were "the principal sum aforesaid and any further sums as aforesaid." Here the words are "will duly pay the aggregate principal sum aforesaid." The grantee has in fact paid the whole sum. If this bill of sale is held bad, a bill of sale given to secure a surety can never be in accordance with the statutory form.

VAUGHAN WILLIAMS, J.: Mr. Ringwood has argued this case very well, and said all that can be said for this bill of sale, but in my

opinion it falls within the principle of Hughes v. Little (1), and must be declared void. If the grantee states the true facts he is out of Court. If he does not state the true facts his position is equally bad.

KENNEDY, J. concurred.

Solicitors: Wood, Bigg & Nash, for Kitson, Mackenzie & Hext, Torquay, for the Trustee.

King, Wigg & Co., for Cowdell, Torquay, for the Bill

of Sale Holder.

COX v. LIDDELL.

1895, April 3. VAUGHAN WILLIAMS, J.

Bankruptcy-Lease-Distress by Landlord-Conversion-Damages-Measure of. Where a landlord is in lawful possession under a distress at the commencement of the tenant's bankruptcy, and the possession subsequently becomes tortious, the trustee in bankruptcy of the tenant may recover damages for the conversion; but in arriving at the true measure the landlord must be allowed what the trustee, if he had asserted his title at the commencement of the bankruptcy, would have had to pay to obtain possession.

THE plaintiff in this case was the trustee in bankruptcy of one G. Hilder, a farmer. By a lease dated 24 September, 1879, Hilder became tenant to Liddell, the defendant, of a farm known as Lea Farm, in the county of Sussex, for a term of fourteen years at a yearly rent of 9461.

In February, 1892, there was owing to the landlord on account taken a balance of 1,652l. 13s. 9d., 6171. 2s. 7d. of this representing arrears of rent accrued due to October, 1890, and the rest, 1,035l. 11s. 2d., representing one year's rent to October, 1891. On 9 February, 1892, the tenant Hilder deposited with his landlord the lease of Lea Farm to secure the payment of the said 6177. 2s. 7d.; and on 15 February the landlord levied a distress