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are unre

plevied.

for sale.

Witness.

the said C. D., with the consent of the said A. B., and with the advice and approbation of the said Agreement (appraisers), hath agreed with the said (purchaser) for the sale to him of the said goods and chattels, at the said sum of £, being the amount at which the same has been so appraised at as aforesaid, towards satisfaction of the said rent, being the best price that can be had or gotten for the same. NOW THIS INDENTURE WITNESSETH, that in pursuance of the said agreement, and in consideration of the said sum of £, to the said (landlord), in hand, well and truly paid by the said (purchaser), at the time of the execution hereof, by the request, and by the direction, of the said (bailiff), testified by his being a party to and executing these presents, the receipt whereof is hereby acknowledged, they, the said (landlord) and (bailiff) do, and each of them doth, bargain, sell, assign, and set over, unto the said (purchaser), his executors, administrators, and assigns, all and singular the said household goods, chattels, and effects, so distrained and appraised as aforesaid, and particularised, &c., with their appurtenances; TO HAVE AND TO HOLD the same goods, chattels, and effects, unto and by the said (purchaser), his executors, administrators, and assigns, as and for his own proper goods, chattels, and effects, for ever. In witness, &c.

Operative part.

(3.)

Bill of Sale of household Goods and Furniture from Tenant to Landlord, by Way of Security for Rent, and Money due and owing upon the Balance of an Account, including a Power of Attorney for delivering Possession of Goods. THIS indenture made the day of, &c., BETWEEN A. B., of, &c., of the one part, and C. D., Recital of of, &c., of the other part; WHEREAS, the said C. D. stands indebted unto the said A. B. in the sum of -, upon the balance of account for rent due

Parties.

money due.

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and owing, and for goods sold and delivered, and the said A. B. having threatened to take proceedings by distress or other means by action for recovery thereof, the said C. D., in order to induce the said A. B. to forbear any proceedings, and to avoid litigation, hath agreed to assign and make over all and singular his household goods and chattels unto the said A. B., as a security for his said money, in the manner hereinafter expressed.(g) Now THIS INDENTURE WITNESSETH, that in pursu- Testatum. ance of the said hereinbefore recited agreement, on the part of the said A. B. in this behalf, and in consideration of the said sum of £, of lawful money of Great Britain, being so due and owing from the said A. B. to the said C. D., as hereinbefore is mentioned, and in consideration of the sum of five shillings, of lawful money, to the said A. B., in hand, paid by the said C. D., upon or immediately before the execution of these presents, the receipt whereof the said A. B. doth hereby acknowledge, he, the said A. B., doth by these presents, bargain, Operative sell, assign, transfer, and set over, unto the said C. D., his executors, administrators, and assigns, ALL and singular the household goods, furniture, Chattels, implements, stock in trade, goods, chattels, and effects, whatsoever, of him, the said A. B., in and about the dwelling-house and shop in the town of, &c., and all right, title, interest, property, possession, claim, and demand, whatsoever, of him, the said A. B., of, in, or to, the same effects; TO HAVE AND TO HOLD the said household goods, chattels, and effects, herein before assigned, or expressed, and intended so to be, unto and by the said C. D., his executors, administrators, and assigns, absolutely

(9) If a bond is given as a collateral security, or a warrant of attorney, say," And whereas, the said A. B. hath executed a bond or obligation (or warrant of attorney) in writing, under his hand and seal, dated, &c., in the penal sum of, &e, with a condition (or defeazance) thereunder written, for making void the same, on payment of the sum of £ —, and interest, after the rate of £4 per cent, per annum, on the day of, &c., next ensuing; and whereas, it hath been agreed, that for the better secur ing the payment of the said sum of, &c., the said A. B. shail execute such bill of sale of the goods and effects mentioned in the schedule hereunder written, as hereinafter is expressed."

part.

Covenant

able posses

for ever, (in such and the like manner, and with as full power and authority in all respects, to sell, convert, and dispose of, the same, as he, the said A. B., his executors or administrators, might or could have in his or their own proper person, if these presents had not been made). PROVIDED ALWAYS, and it is hereby declared, that if the said A. B., his executors or administrators, do and shall pay, or cause to be paid, unto the said C. D., his executors, administrators, or assigns, the said sum of £ with interest for the same, after the rate of £4 10s. per cent. per annum, (if a time limited, say, on or before the day of, &c., next ensuing,) without deduction, then these presents shall be void, and of none effect; AND the said A. B., for for peace- himself, his heirs, executors, and administrators, sion. doth hereby covenant, promise, and agree, with and to the said C. D., his executors, administrators, and assigns, that after default shall be made in payment of the said sum of, &c., (according to the time mentioned in the said proviso,) that he, the said C. D., his executors, administrators, and assigns, shall or lawfully may, peaceably and quietly have, hold, use, possess, and enjoy, the said household goods, furniture, implements, stock in trade, goods, chattels, and effects, and receive and take profits thereof, and of every part thereof, for his and their own use and benefit, without any action, eviction, hindrance, interruption, disturbance, claim, or demand, whatsoever, of or by him, the said C. D., his executors or administrators, or any perAnd for fur- son or persons whomsoever; AND that he, the said ther assur- C. D., his executors or administrators, shall and will at all times hereafter make, do, and execute, or cause and procure to be made, done, and executed, at the expense of the said C. D., his executors, administrators, or assigns, and procure to be made, done, and executed, all and every or any such further and other acts, deeds, assignments, and assurances in the law, whatsoever, for the further, better, more perfectly, and absolutely,

ance.

assigning and assuring the said household goods, furniture, implements, stock in trade, and effects, unto the said C. D., his executors, administrators, and assigns, in the manner aforesaid, and according to the true intent and meaning of these presents, as by the said C. D., his executors, administrators, or assigns, or his, their, or any or other of their, counsel in the law, shall be lawfully and reasonably advised and required. AND THIS INDENTURE ALSO WITNESSETH, that the said A. B. doth, in order that the possession of the said goods may be delivered to the said C. D., by these presents, make, ordain, constitute, and appoint, L. M., of, &c., to be his true and lawful attorney for him, and in his name, to take and have possession of the said household goods, furniture, implements, stock in trade, and effects, or of some part thereof, in the name of the whole and the like possession thereof, or of some part thereof, in the name of the whole, to give and deliver unto the said C. D., his executors, administrators, and assigns, to hold to him, the said A. B., his executors, administrators, and assigns, absolutely for ever, subject as aforesaid, according to the true intent and meaning of these presents, he, the said A. B., hereby ratifying, allowing, and conforming, and agreeing to ratify, allow, and confirm, all and whatsoever his said attorney shall do, or cause to be done, in or about the premises, by virtue of these presents. In witness,(h) &c.

(h) The memorandum of the delivery of possession by virtue of the power may be as follows: "Be it remembered, that on the day of, &c., full possession of the household goods, furniture, chattels, and effects, within mentioned, was had and taken by the within named L. M., as the attorney of the said A. B., of one chair, in the name of the whole of the same effects; and such possession was immediately afterwards given and delivered to the within named C. D., by the said L. M. delivering of the said chair to the said C. D., in the name of the whole of the said goods, chattels, and effects, in the presence of," &c.

As to bills of sale of chattels.

OBSERVATIONS AND CASES.

IT is a general rule in the transfer of chattels, that the possession must accompany and follow the deed; therefore, where the conveyance is absolute, the possession must be delivered immediately; if it is made conditional, it will not be rendered void by the vendor's continuing in possession till the condition be performed. (i) But although it be unaccompanied by possession, it is valid against the vendor ; and as against a creditor with whose knowledge and assent it was given.(j) Want of possession of the goods will not constitute fraud, the same being only evidence of it. (k) But it is a notorious badge of fraud which ought to be left to the jury.(7) The continuance by the assignor in possession of the goods will not protect them from an execution at the suit of a creditor, unless the assignment were notorious, which is a question to be ascertained.(m) And when the assignee has taken possession, but suffers the assignor to execute any act of ownership, it will avoid the bill of sale as against a subsequent bond fide execution.(n) And it is not enough that a person is put to keep possession jointly with the assignor.(0) A sale to a creditor of personal property in embarrassed circumstances, without any change of possession, is valid, unless made with a fraudulent intention to defeat other creditors: the continuance of possession is not conclusive evidence of fraud.(p)

(i) Edwards v. Harben, 2 T. R. 587. Dutton v. Morrison, 17 Ves. 197. () Steel v. Brown, 1 Taunt. 381.

(k) Martindale v. Booth, 3 B. & Adol. 498.

(7) Martin v. Podger, 2 W. B. 702, 5 Burr, 2631.

(m) Armstrong v. Baldock, Gow. 33; and see Smith v. Russell, 3 Taunt. 400.

(n) Paget v. Perchavel, 1 Esp. 205. (o) Wardall v. Smith, 1 Camp. 333. (p) Eastwood v. Brown, R. & M. 312. And where a person, pretending to be a purchaser of goods under an execution, leased the goods at a rent to the former owner, who still continued in possession, no money having been proved to be given for the purchase, nor rent paid under the

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