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motion to set aside the nonsuit, concurred in opinion with the chief justice. And in Godson v. Sanctuary, 4 Ad. & Ell. 255. the Court, took into the account the fraction of a day, in computing the two months specified in the 81st section. The trading must be before the imprisonment.

Although the trader is, during the twenty-one days in a progressive course of committing an act of bankruptcy, yet the act of bankruptcy is not complete until the expiration of the twenty-one days, and consequently a commission cannot regularly issue until that time; for, in order to obtain it, there must be an affidavit that the party has committed an act of bankruptcy. The property of the bankrupt vests in the assignees by relation either from the time of the arrest or the going to prison, as the case may be. A sheriff's officer having arrested a defendant (who was dangerously ill) on mesne process in his own house, left him there in the custody of a follower, not named in the warrant, until he was recovered; it was holden that this was such a legal custody, that if the imprisonment, of which this was a part, were continued for two months, (now twenty-one days,) it would constitute an act of bankruptcy. A penalty due to the crown for smuggling is a debt within this statute m.

Or having been arrested, shall escape out of custody.

A. having been arrested for debt in Kent, on the 31st of March", was, on the sixth of May following, brought up by an habeas corpus, in order to be turned over: on the road to the judges' chambers, A. was permitted to call at an house in the city of London, and was carried thence to a judge's chamber to be bailed, and accordingly was bailed, but instantly there surrendered by his bail in discharge of themselves, and thereupon committed to the King's Bench prison, where he lay above two months. It was adjudged, that this passing through another county, by the permission of the sheriff, was not an escape within the meaning of this act.

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V. Of Property in the Possession of the Bankrupt as
reputed Owner.

By stat. 6 G. 4. c. 16. s. 72. If any bankrupt, at the time he becomes bankrupt, shall, by the consent and permission of the true owner thereof, have in his possession, order, or disposition, any goods or chattels, whereof he was reputed owner, or whereof he had taken upon him the sale, alteration, or disposition as owner, the commissioners shall have power to sell and dispose of the same for the benefit of the creditors under the commission: Provided, that nothing herein contained shall invalidate or affect any transfer or assignment of any ship or vessel, or any share thereof, made as a security for any debt or debts, either by way of mortgage or assignment, duly registered according to the provisions of an act of Parliament made in the fourth year of his present majesty, intituled An Act for the Registering of Vessels (11).

The language of this clause is, "at the time he becomes bankrupt, by the consent of the true owner." See Lyon v. Weldon, 2 Bingh. 334. Storer v. Hunter, 3 B. & C. 380. Bayley J. Exp. Watkins, 1 Dea. 296. Smith v. Topping, 5 B. & Ad. 674. Townley v. Crump, 4 Ad. & Ell. 58. and post p. 223. Shawv. Harvey, 1 Ad. & Ell. 920. The general view of the provision is, to prevent traders from gaining a delusive credit, from a false appearance of their circumstances, to the misleading and deceit of those who may trade with them. Choses in action i have been holden to fall within the description of goods and chattels; as also debts; and if left in the disposal of the bankrupt, he is the proprietor. So a right to print a newspaper, so mortgages or sales upon condition of goods, as well as absolute sales m; and a mortgage by one partner to another of a moiety of stock in trade, is not distin

i Ryal v. Rolle, 1 Vezey, 348. 1 Atk.
165, S. C. 1 Wils. 260, S. C.
k Per Lord Eldon, C. in exp. Ruffin,
6 Ves. 128.

1 Longman v. Tripp, 2 N. R. 67.
m Ryal v. Rolle, ub. sup. Hall v. Gur-
ney, 3 Doug. 356.

(11) This proviso is new. Before this act, where A., the owner of a ship, duly assigned his interest in it to B. as a security for a debt, and B. became the registered owner, but by his permission A. continued to have the same in his possession, order, and disposition, until he became bankrupt; it was holden *, that A.'s assignees were entitled to the ship.

Hay v. Fairbain, 2 B. and A. 193. See also Robinson v. M'Donnell, S. P. post. tit. Shipping.

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guishable from a mortgage to a stranger", if the mortgagor is suffered to continue in possession as visible owner.

The principal difficulty in deciding questions on this clause lies in ascertaining whether the bankrupt is reputed owner or not. When this fact is settled, the application of the statute is easy; for from the reputed ownership false credit arises; from that false credit arises the mischief, and to that mischief the remedy of the statute applies. These questions have much more of fact in them than law; and hence it seems proper to leave it to the jury P to say whether, under the circumstances, the bankrupt had the reputed ownership of the goods at the time.

Cases within the statute.-A., a brewer 9, in partnership with B., mortgaged to C. in trust for B. his, viz. A.'s moiety of the utensils, stock in trade, debts, profits, &c. for securing a sum of money lent to him by B., but continued in possession of the stock, &c., and received the debts as if in partnership with B., and afterwards became a bankrupt; it was holden by Lord Hardwicke, Ch. assisted by Burnet, J., Parker, C. B. and Lee, C. J., 1st. On the authority of the case of Stevens v. Sole, cited 1 Atk. 170, that a conveyance of goods and chattels, by way of mortgage, or with condition of redemption, was within the statute, and that the mortgagee or vendee upon condition was 66 true owner and proprietor," within the meaning of that statute. 2dly. That "goods and chattels" included debts; and in this case notice of the assignment of the debts to the partner not having been given, the assignees of the bankrupt were entitled to dispose of them for the benefit of the creditors in general. 3dly. That the mortgage to C. in trust for B. the partner, was not to be distinguished from a mortgage to a stranger, under the circumstances of this case, the trustee not having interfered. That if it had been intended to take the case out of the statute, B. when he became entitled to A.'s moiety, should have had the sole and not a joint possession only; that A. having continued in possession after the conveyance as visible partner, and received debts, &c. by the permission of B., had the order and disposition of the goods and chattels, and was one of the reputed owners as much as B. Another point was made, whether B. by the loan to A. his partner, did not gain a special lien on A.'s moiety of the partnership effects; but it was determined that he had

n S. C.

o Per Buller, J. in Walker v. Burnell,
Doug. 319, recognised by Lawrence,
J. in Horn v. baker, 9 East, 241.
Lawrence, J. 9 East, 241.

q Ryal v. Rolle, 1 Vezey, 348. 1 Atk.
165. 1 Wils. 260. cited in Smith v.
Smith, 4 Tyr. 53.
r1 Vesey, 373.

not any such lien, there not being any authority or precedent for it after a bankruptcy; and that it was a different consideration what a court of equity might do between the parties themselves, while both remained capable of transacting for themselves. Also it was agreed, by the court, that mortgages of lands and fixtures were not affected by the statute; and the same doctrine was laid down in Horn v. Baker, 9 East, 237. as to vats and stills belonging to a distillery, and which were fixed to the freehold; in Clark v. Crownshaw, 3 B. & Ad. 804. as to the machinery and things affixed to the freehold of a mill and iron forge; in Coombs v. Beaumont, 5 B. & Ad. 72, as to a steam engine in a colliery; and in Exp. Lloyd, 1 Mont. & Ayr. 494, as to steam engine, &c. erected for the purposes of trade and fixed to the freehold; in the case of an equitable mortgage. See also exp. Wilson, 2 Mont. & Ayr. 61.

S

This statute applies to a secret partner, who, after the dissolution of partnership, permits his share of partnership property to continue in the possession of the bankrupt. Bills of exchange are "goods and chattels" within the meaning of this statutet. In trover for a dyer's plant ", it appeared that the plaintiff had sold the plant to B., for which he gave the plaintiff two promissory notes, one payable in one year, and the other in two years from the time of the sale. At the expiration of the first year, B. finding it inconvenient to pay the note then due, by indenture agreed to assign and deliver the plant to plaintiff, in consideration of his delivering up the notes; but it was stipulated in the deed that A. should let the plant to B. for a term of years at a certain rent. B. covenanted to pay the rent quarterly, to keep the plant in repair, and not to assign it without the consent of the plaintiff. The deed contained a proviso that B. should deliver the plant, and that the plaintiff might take possession of the same on failure in the payment of the rent. There was a memorandum, also, that B. had put the plaintiff into possession by the delivery of one winch in the name of the whole. Afterwards B. became a bankrupt, and the defendant, being chosen assignee, took possession of the plant as part of the effects of B. The court were of opinion, that this case was within the statute, and Lord Mansfield said that he had not any doubt that this was a new experiment to defeat the bankrupt laws. The law had said3, that a trader could not mortgage his effects

s Exp. Enderby in re Gilpin, 2 B. and
C. 389. recognized by Tindal, C. J.
exp. Chuck, 8 Bingh. 472. see also
Smith v. Watson, 2 B. & C. 401.
t Hornblower v. Proud, 2 B. and A.
327.

u Bryson v. Wylie, B. R. H. 23 G. 3. 1 Bos. and Pul. 83. n.

x In Ryal v. Rolle, 1 Atk. 165.

and at the same time keep possession. What was the case here? the bankrupt sold and kept possession, and paid interest for the money; if this contrivance were suffered, it would open a door to avoid the statutes, and, therefore, it ought not to be allowed to prevail. So where B. kept a coffee-house, y and a creditor, after taking in execution all the household furniture and other articles belonging to the coffee-house, let them by deed to B. for a term of years, who covenanted not to remove them without the creditor's consent; B. having continued in possession under this deed for several years, until the time of his bankruptcy, the assignees were holden to be entitled to the property under this statute, the bankrupt having had such a possession as necessarily created a reputation of ownership. The bankrupt being the reputed owner and appearing to have the order and disposition of the goods, the court considered him as having taken upon himself the sale, order, and disposition, within the meaning of this statute, which terms they observed were only incidental to reputed ownership.

There are two classes of cases where property demised to the bankrupt has been held to pass to his assignees under this statute: the first is, where the bankrupt has once been the owner, and the other where he has not. The evidence required to establish reputed ownership in each of these cases is different. In the former case, when it is once proved that the bankrupt has been the owner, and has continued in possession until the act of bankruptcy, the presumption is, that he then continued in possession, in the character of owner, and therefore proof of those facts is primâ facie evidence that the bankrupt is both reputed and real owner. Such was the foregoing case of Lingham v. Biggs, and the following of Lingard v. Messiter, 1 B. and C. 308. Trover for machinery: the plaintiff proved that the bankrupt had once been the real owner of the goods in question, and that he continued in possession until the act of bankruptcy. The defendant proved that, long before the bankruptcy, the goods had been seized under an execution, at the suit of a creditor, by the sheriff, and that they were conveyed, by bill of sale, to the creditor, and that he afterwards demised them, at an annual rent, to the bankrupt. Soon after the bill of sale was executed, the creditor's initials were marked on the goods. It was holden, that this was not evidence of the notoriety of the change of property, and consequently that there was no evidence to go to the jury that the bankrupt had ceased to be the reputed

y Lingham v. Biggs, 1 Bos. & Pul. 82.

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