— Part
III.
—
Bailment for Valuable Consideration.
returning the chattel, whereas in the latter the hirer has (i). In the is an agreement to purchase, whereas in the latter In each case the substance of the transaction or there is none (i). the agreement must be looked at and not the mere words (^).
former there
Sub-Sect.
2.
555 Sect.
3.
Hire-
Purchase,
RigJds of Oiuner.
1125. The agreement usually provides that if default is made in Possession on default in of any instalment the owner may resume possession. payment of This provision is enforceable if the agreement be in fact as well instalment. as in form a true agreement for hire {j). But if the agreement, though in form a contract for hire, is really a sale, the provision is not enforceable unless the agreement is registered as a bill of sale, and, in the absence of registration, any seizure may subject the owner and his agents to an action of trespass {k). Equity will not relieve the hirer against a forfeiture occasioned by default in the punctual payments of the instalments as they accrue (Z), the proviso not being in the nature of a penalty (m)
payment
.
1126. The owner's right to seize is subordinate to that of the Distress and landlord of the premises in which the chattel is housed, should he execution. distrain for rent {n) upon it, and it would seem that a sheriff who seizes chattels let on a hire-purchase agreement under an execution against the hirer may sell to a third person the qualified interest and therefore all well-drawn hire-purchase of the hirer therein (o) agreements give power to the owner to resume possession if the chattel is seized by a sheriff or is distrained. There is no legal presumption that a chattel hired under a hire- Bankruptcy. purchase agreement, for private purposes, is in the order or disposition of the hirer so as to pass the property in it to his trustee in bankruptcy (p) The contrary is the case where the chattel let on such an agreement is in the possession of a trader in the way of his trade (g), although the presumption may be rebutted by proof of a custom of a particular trade or calling for the trader to have in his possession, or apparently under his control, chattels which are not in fact his own property (?^).
.
Lee v. Butler, [1893] 2 Q. B. 318 v. Matthews, [1895] A. C. 471 Pepper, [1905] A. C. 102. (j) Ex parte Whittaher, Re Gelder, [1880] W. N. 171, affirmed sub nom. Ex parte Sergeant, Re Gelder, [1881] W. N. 37 ; Leman v, Yorkshire Railway JVaggon Go. (1881), 50 L. J. (ch.) 293. (k) Beckett v. Tower Assets Co., [1891] 1 Q. B. 638. (0 Cramer v. Giles (1883), 1 Cab. & El. 151. (m) Sterne v. Beck (1863), 1 De G. J. & Sm. 595. (n) See Lyons v. Elliott (1876), 1 Q. B. D. 210, per Lush, J., at p. 215, and cases cited, note (,/), p. 547, ante. Lancashire Waggon Co. v. Fitzhugh (o) Dean v. JVhittaker (1824), 1 C. & P. 347 (1861), .30 L. J. (ex.) 231. See title {pi) Ex parte Emerson, Re Hawkins (1871), 41 L. J. (bcy.) 20. (i)
Maas
Helhy
V.
Bankruptcy and Insolvency.
&
47 Vict. c. 52), provides that {q) Sect. 44 (3) of the Bankruptcy Act, 1883 (46 all goods being at the commencement of the bankruptcy, in the possession, order, or disposition of the bankrupt, in his trade or business, by the consent and permission of the true owner, under such circumstances that he is the reputed owner thereof, shall pass to his trustee in bankruptcy. (r) Ex parte Watkins, Re Couston (1873), 8 Ch. App. 520 see also Re William Watson (& Co., Ex parte Atkin Brothers, [1904] 2 K. B. 753. See title Bankruptcy
