SITTINGS IN BANCO,

Before Higinbotham, C.J., a'Beckett & Hood, J.J.

DANBY V. AUSTRALIAN FINANCIAL AGENCY AND
GUARANTEE COY.

April 25, 26, 27 & 28. Bill of sale-Notice of intention to file-Instruments Act 1890, ss. 134, 135, 5th schedule. (Per HIGINBOTHAM, C.J.) Where the consideration for the giving of a bill of sale is something which does not fall within one of the sub-headings of the form given in the 5th schedule to the Instruments Act 1890, such consideration need not be set out in the notice of intention to file.

A guarantee or promise to answer for the debt, default or miscarriage of another person, is something distinct in its nature from a past or present debt owing by and a promise to make future advances to that other person, and need not therefore, even assuming that it forms part of the consideration of a bill of sale, be set out in the notice of intention to file. (Per A'BECKETT, J.) The third column of the 5th schedule to the Instruments Act 1890, is meant to contain the debt and advances to be secured, and nothing more, and if these are correctly stated the Act is complied with, though there may have been some other consider ation not stated. The word "consideration" at the top of the column is merely used as a short description of the debt or advances.

It is no objection to a notice of intention to file a bill of sale, that it does not specify the nature or state the limit of the advances to be secured when the bill of sale itself does not do so.

NOTES OF CASES. July 9, 1892.

1

(Per Hoop, J., dissentientem.) The effect of the form (5th schedule Instruments Act 1890), is to state both the consideration and the amount secured. The former is expressly named and the latter is necessarily implied. Whenever this form can be truthfully followed, both will be given, and whenever the consideration consists of all or any of the usual items, and also constitutes the sum secured, then the form can be literally followed. But when the consideration consists of something else, then the form must be modified so as to be of the like effect, and must state what the consideration is, and what is the sum secured, even though it should be necessary for the mortgagee to introduce a heading for himself.

The word "consideration" in the 3rd column of the 5th schedule is meant to express something which the grantor of the bill of sale is receiving, has received, or will receive.

Where future advances form part of the consideration for the giving of a bill of sale, the amount of the contemplated future advances should be set out in the notice of intention to file.

This was an appeal from the judgment of Hodges, J. In the beginning of 1889 G. M. Pickles, carriage manufacturer, was greatly indebted to the defendant Coy. to which most of his property was pledged. Pickles proposed to take a person called Wiedemann into partnership and numerous business transactions took place between these different parties, which finally resulted in Pickles going out of the business altogether, and Wiedemann taking over all Pickles' liabilities to, the Coy. and generally taking his place in the business, Pickles obtaining a release from the Company. On the 22nd August 1889, Wiedemann executed a bill of sale on the stock in trade, &c., for £15,080 which was the amount of Pickles' indebtedness to the Company