« EelmineJätka »
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.
This statute applies s 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 plantų, 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. venanted 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 said “, that a trader could not mortgage his effects
s Exp. Enderby in re Gilpin, 2 B. and u Bryson v. Wylie, B. R. H. 23 G. 3.
C. 389. recognized by Tindal, C. J. I Bos. and Pul. 83. n.
Smith v. Watson, 2 B. & C. 401.
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 owner. But in a case where the property had been demised to a person who never had been the owner, and he became bankrupt, the mere possession might not be sufficient to induce others to consider him as owner. See further on this point Storer v. Hunter, 3 B. and C. 368, cited and distinguished in Clark v. Crownshaw, 3 B. & Ad. 808. Trover for goods2. It appeared that the defendants were bankers, to whom B., a mercer, resident in Cumberland, had given a warrant of attorney to secure certain advances which they had made to him. Judgment having been entered, a writ of fi. fa. was sued out thereon, and a warrant directed, on 7th May, to two of B.'s shopmen, there being no bound bailiffs in Cumberland. The shopmen were desired to take possession of all B.'s stock in trade under it. Having got the warrant they remained in the shop till night, when they locked it and carried away the key. But on the Monday morning they again opened it; and, although B. did not interfere, business was carried on apparently as usual. On the evening of this day, B. committed an act of bankruptcy. A commission of bankruptcy was sued out against him on the 14th of the same month. The goods were afterwards sold by public auction under the warrant, the shopmen having remained in possession from the time it was delivered to them. Lord Ellenborough, C. J.-“ How can the possession of the servants be adverse to that of their master? The goods were certainly under the order, disposition, and control, of the bankrupt, when the bankruptcy happened, and therefore passed to his assignees, notwithstanding the execution. I remember an execution in the North, where the warrant was delivered to a gentleman's butler who continued to serve up wine, and to wait at his master's table as before. The court has more than once expressed an opinion that there ought to be bound bailiffs in Cumberland, as in other counties. They seem to have supposed here, that a possession, aliene to the master's, dissolved the relation between him and his servants; but they were wrong in point of law. Had they delivered the warrant on the 7th to a bound bailiff, and put him in possession, all would have been right.” A. a trader and an officer in the East India Company's service a, assigned his privilege of shipping goods from the East Indies to England, to B. for a valuable consideration; and in order to evade the by-laws of the East India Company, which prohibited such assignment, the goods were shipped, entered, warehoused, and sold by the Company in A.'s name, and the proceeds carried to his account: but before A. received those proceeds from the Company, he 2 Jackson v. Irvin, 2 Camph. 49. a Gordon v. E. I. Company, 7 T. R. became a bankrupt. It was holden, that his assignees were entitled to recover the amount in an action for money
y Lingham v. Biggs, 1 Bos. & Pul. 82.
had and received, against the Company, this being such a possession as fell within the statute.
It was a question whether the enacting part of the 11th section of stat. 21 Jac. 1. c. 19. which corresponded with that now under consideration, was restrained by the preamble; but it was holden, that it extended to the goods of other persons remaining in the possession of the bankrupt, as well as those which were originally the bankrupt's property. Hence where it appeared that the plaintiff having kept a public houseb, and had a licence, said she was married to one Penrice, whose name she afterwards entered in the books of the excise office, with a note in the margin “married,” from which time Penrice had the licence, and continued in the posession of the house and goods until he committed an act of bankruptcy; the court were of opinion that this case was within the statute, on two grounds; 1st. That the statute extended to the goods of other persons as well as to those which were originally the bankrupts property. 2ndly. That after a solemn declaration by the plaintiff that she was married to Penrice, and that these were the goods of Penrice in her right, she should never be allowed to say that she was not married to him, and that the goods were her sole property. So where household furniture, the separate property of the wife of B.C and of her children by a former husband, were, upon her marriage with B. assigned to the plaintiffs, as trustees, in trust to suffer B. to enjoy them, on condition that he should pay the plaintiffs, for the use of the children of his wife by her former husband, a certain sum by yearly instalments; and, notwithstanding several defaults in payment of those instalments, the bankrupt was permitted by the trustees to remain in the possession of those goods, until the evening before he committed an act of bankruptcy, when they repossessed themselves of the goods; it was holden, that the trustees had suffered the bankrupt to have the possession, order, and disposition of the goods, down to the time of his bankruptcy, and therefore the case fell within the very words, as well as the meaning of the statute. But the goods must be in the possession of the bankrupt at the time of his bankruptcy, otherwise the statute does not applyd. A. a termor for years of lands, had built thereon a rectifying distil-house, where he carried on the business of a distiller in partnership with B. A. finding it to be a losing concern, withdrew from the business, and thereupon leased to B. his (former partner) and one C. the premises, together with the stills, vats, and utensils, proper for carrying on the business, and which had been used by A. and B. Under this lease B. and C. continued in possession of the property, carrying on the trade in the same manner as was done before, until they became bankrupts. It did not appear that there was any usage in the trade for letting such utensils. The question arising, whether the bankrupts, under the above-mentioned circumstances, had the reputed ownership of the moveable utensils of the trade before and at the time of the bankruptcy, and had thereby acquired the real ownership by the statute for the benefit of their creditors; the court were of opinion that they had; Lord Ellenborough, C. J. observing, that “the true object of the statute was to make the reputed ownership of goods and chattels in the possession of bankrupts, at the time of their bankruptcy, the real ownership of such goods and chattels, and to subject them to all the debts of the bankrupt; considering that such reputed ownership would draw after it the real sale, order, alteration, and disposition of the goods. The stills, it appeared, were fixed to the freehold; and as such would not pass to the bankrupt's assignees, under the description of 'goods and chattels' in the statute. But as to the vats and utensils, there was nothing in the case to rebut the reputed ownership following the possession of the bankrupts after the dissolution of the old firm, when the business was continued to be carried on by the bankrupts alone, in the same manner as it followed the possession of the antecedent partnership, when the trade was carried on by A. and B. If, as in some manufactories, where the engines necessary for carrying on the business, are known to be let out to the several manufacturers employed upon them, there had been a known usage in this trade for distillers to rent or hire the vats and other articles used by them for the purpose of distilling, the possession and use of such articles would not in such a case have carried the reputed ownership. But in the absence of such an usage, there was nothing stated in the case which qualified the reputed ownership arising out of the possession and use of the things in their trade. The world would naturally give credit to the traders on their reputed property; and the person, who permitted them to hold out to the world the appearance of their being the real owners, ought to be answerable for the consequences, and was so intended to be by the statute."
b Mace v. Cadell, Cowp. 232.
nised by Sir W. Grant, M. R. in
d Jones v. Dwyer, 15 East, 21. See
ante, p. 209.