Gough v Everard

JurisdictionEngland & Wales
Judgment Date29 April 1863
Date29 April 1863
CourtExchequer

English Reports Citation: 159 E.R. 1

IN THE COURT OF EXCHEQUER AND EXCHEQUER CHAMBER

Gough
and
Everard

S. C. 32 L. J. Ex. 210; 11 W R. 702, 8 L T. 363 Commented on, Robinson v. Tucker, 1883, 1 Cab & E 173. affirmed 1884, 14 Q B D. 371. Adopted, Ex parte Hooman, In re Vining, 1870, L. R. 10 Eq. 68; Ex parte Lewis, In re Henderson, 1871, L. R. 6 Ch. App. 629 Referred to, Ex parte Jay, In re Blenkhorn, 1874, L R 9 Ch. App 700, n.; Brantom v. Griffits, 1876, 1 C. P. D. 355, Gibbons v Hickson, 1886, 55 L. J. Q. B. 121.

The EXCHEQUER REPORTS. REPORTS of CASES ARGUED and DETERMINED in the COURTS of EXCHEQUER and EXCHEQUER CHAMBER. Easter Term, 26 VICT., to Hilary Term, 27 VICT., both inclusive. By EDWIN TYRRELL HURLSTONE, of the Inner Temple, and FRANCIS JOSEPH COLTMAN, of the Inner Temple, Esquires, Barristers-at-Law. Vol. II. London, 18G4. ^ sl^q tfcpt " [1] exchequer reports easter term, 26 vect. gough v. everard. April 29, 1863. - The "possession or apparent possession" of a vendor or mortgagor, under the Bills of Sale Act (17 & 18 Viet, c 36), is in general a question of fact. - Where personal chattels had been sold under written agreements not registered under the Act, and after the sale remained in, the same place in which they had been kept by the vendor, but there were circumstances to shew that the vendee had done more than take mere formal possession of them, and upon an interpleader issue, after seizure under a ti f a , the juiy found boria fides in the transactions Held, that the property seized was not in the " apparent possession " of the vendor within the meaning of the interpretation clause, and that upon the facts proved there was sufficient evidence of actual possession by the vendee so as to prevent the operation of the statute Quojre, whether the agreements (set out in the text) were bills of sale within the meaning of the Act? [S. C. 32 L. J. Ex. 210; 11 W R. 702 , 8 L T. 363 Commented on, Robimon v. Tucker, 1883, 1 Cab & E 173. affirmed 1884, 14 Q B D. 371. Adopted, Ex part* Hooman , lure Fining, 1870, L R. lOEq. 68; Evpaite Leiws , line Hendetson, 1871, L. R. 6 Ch. App 629 Referred to, Er paite Jay , In ie Blenkhmn, 1874, L R 9 Ch, App 700, n. ; Brantom v. Gnffitu, 1876, 1 C. P. D. 355, Gibbons v Htckson, 1886, 55 L. J Q. B 121.] This was an interpleader issue to try, as between the claimant, the now plaintiff, and the execution creditor, the now defendant, the right to goods, seized by the sheriff of Breconshire, on the llth of July, 1862, under a fi. fa issued on the 9th of July, by the now defendant, against one Henry Ernest At the trial, before Bramwell, B , at the sittings after last Hilary Term, the followiflg facts appeared : - Ernest, the execution debtor, had been in business as a land agent and timber merchant, and had occasionally employed the plaintiff as a builder and in the sale of timber. In 1859 Ernest gave up business and employed the plaintiff to assist him in trying to sell off some timber at Brecon, a portion of which was stored afc a private wharf belonging to Ernest, and the remainder at a public wharf tn the custody of a wharfinger. Ernest had a house in Brecon which, having previously himself occupied, he, in November, 1860, let to [2] one Thompson, reserving the right to use certain rooms, and keeping a servant and some office Ex. Div. xv. - 1 2 GOUGH V. EVERARD 2 H. & C. 3. furniture on the premises. The plaintiff when employed by Ernest was permitted by him to use these rooms; but Ernest, who came occasionally to Brecon, did not himself use them after the house was let to Thompson. The plaintiff had occasionally used the rooms prior to April, 1862, in which month Thompson gave up the house, but he used them more continuously after that date On the 1st of April, 1862, the following written agreement was entered into between Ernest and the plaintiff for the purchase by the plaintiff of the above mentioned timber :- " Mr. Henry Ernest agrees to sell to Mr. William Hodges Gough, who agrees to purchase, all the timber (rough and converted), barrows, spokes, elves, gates and other articles and materials and effects of the said H. Ernest upon his private and upon the public wharf at Brecon, arid also his timber waggon there, &c., at the price or sum of 3001., to be paid for by the acceptance of the said W H. Gough at four months' date. The said H. Ernest agrees to pay all rent and other charges upon the said timber and materials at Brecon for a period of six months, within which time the said W. H. Gough is to remove the same. The said W. H. Gough is to have the use of the apartments of the said H. Ernest, and of his servant there, at any time during the said six months, free from charge, to facilitate his sale and removal of the said timber," &c. " H. ernest. "william H. gough." The apartments mentioned in this agreement were those in the house let to Thompson, which were a short distance from Ernest's private wharf. The plaintiff, in pursuance of the agreement, accepted a bill at four months for 3001. The plamtift offered the timberfbr sale on diffeient occasions, [3] both before and after the date of the said agreement, and took purchasers to see it, but the only sales which he eifected were subsequent to that date, being sales to two...

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