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of Lancaster,) where machinery of such description is commonly removed, and which was capable of removal without injury, was holdenf not as belonging to the inheritance, but as part of the personal estate, and consequently "goods and chattels” which would pass to the assignees.
A customs, that purchasers of hops from hop merchants should leave them in the merchant's warehouse, for the purpose of resale, upon rent, undistinguished from the merchant's stock, is not such a custom of trade as will prevent the hops from becoming the property of the merchant's assignees, in case of bankruptcy, as being in his possession, order, and disposition.
A., a spirit merchant, sold to B.h, a wine merchant, several casks of brandy, some of which, at the time of sale, were in A.'s own vaults, and others in the vaults of a regular warehouse-keeper. It was agreed, between the parties, that the brandies should remain where they were, until the vendee could conveniently remove them. Immediately after the sale, the vendee marked the several casks with his initials. It was notorious to the persons carrying on the wine trade, at the place where the parties resided, that this sale had taken place, but no notice of such sale had been given to the warehouse-keeper, with whom some of the casks were deposited. A. having become bankrupt, while the brandies remained where they were originally deposited, it was holden, that the whole of them passed to his assignees, as goods in his possession, order, and disposition, by the consent and permission of the true owner, within the statute. So where a person having bought a pipe of sherry of a wine merchant, permitted it to remain in his cellar for the purpose of ripening; and the merchant afterwards became bankrupt; it was holden, that it passed to the assignees. Secus, if the wine be set apart in a particular bin and marked with the buyer's seal, and entered in the bankrupt's books as the buyer's propertyk. Where a person entitled to take out letters of administration neglected to do so, but remained in possession of the goods of the intestate, and being so in possession became a bankrupt, and a creditor of the intestate afterwards took out letters of administration and claimed the goods from the assignees, it was holden', that those goods were within the statute.
f Trappes v. Harter, 2 Cr. and M. 153. siter, 1 B. and C. 315, and ante, p. 3 Tyrw. 603. S. C.
212. & Thackwaite v. Cock, 3 Taunt. 487. i Tanner v. Barnett, Kenyon, C. J.
cited and distinguished in Watson v. Peake's add. Cases, 98.
Peache, 1 Bingh. N. C. 336. k Exp. Merrable, 1 Glynn and Jamieb Knowles v. Horsfall and others, 5 B. son, 402, Leach, Sir John, V. C.
and A. 134. See Lingard v. Mes- Fox v. Fisher, 3 B. and A. 135.
2. Cases not within the Statute.-First, this clause does not relate to goods which the bankrupt has in auter droit, as executor or administrator. Hence, where a trader married a woman who was in possession of goods as administratrix to her former husband, and afterwards became a bankrupt, it was holden by Lord Hardwicke, Ch. that this was not within the statutem, because the administratrix had the goods in auter droit, and the husband could not have them in any better right, and therefore they were not liable to the debts of the second husband; for the meaning of the statute (if it was possible to put any meaning upon some clauses of this statute which were very darkly penned,) was only with regard to goods which the bankrupt had in his own right.
Or as factor or trustee.-A trader in London having money of J. S. (who resided in Holland,) in his hands, bought South Sea Stock, as factor for J. S. and took the stock in his own name, but entered it in his account-book as bought for J. S., after which the trader became bankrupt, it was holden by Lord Parker, that this stock was not liable to the bankruptcy (12). So where the bankrupt is intrusted, as a mere trustee.
Goods in the possession of a factorP, from the known nature of his employment, can seldom leave room for any ques
m Ex parte Marsh, 1 Atk. 159. and see
exp. Ellis, 1 Atk. 101. and 3 Burr. 1366. Lord Mansfield, C. J.
n Ex parte Chion, 3 P. Wms. 187, n.
(A.) o Carpenter v. Marnell, 3 B. and P. 40. p Cullen's B. L. 225.
(12) Where a merchant consigns goods to a factor in London who receives them, the factor, in this case, being only a servant or agent for the merchant beyond sea, cannot have any property in such goods; neither will they be affected by the bankruptcy. Per Lord King, Ch. in Godfrey v. Furzo, 3 P. Wms. 186. “ This statute does not extend to the case of factors or goldsmiths who have the possession of other men's goods merely as trustees, or under a bare authority, to sell for the use of their principal; but the goods must be such as the party suffers the trader to sell as his own.” Per Lord Mansfield, delivering the opinion of the court in Mace v. Cadell, Cowp. 233. In Horn v. Baker, 9 East, 243, Lawrence, J. commenting on the preceding passage, observed that the last expression, viz. " that the goods must be such as the party suffers the trader to sell as his own,” was evidently used in contradistinction to the case of factors, &c. who sold for other persons, and not for themselves. And he (Lord Mansfield) could not have meant to lay it down generally : for that, viz. the case of Mace v. Cadell, was not the case of a sale.
tion as to the purpose for which they are in his possession. But, with respect to another species of property, namely, bills of exchange or notes, the possession of these is more equivocal : for being generally looked upon as cash, and delivered or remitted to an agent or banker generally in that way, and upon a general account between the parties, they will be considered in that light; and, as being blended with the general mass of his property, will, in case of his becoming a bankrupt, pass by the assignment under the commission, unless they appear to have been specifically appropriated to some particular purpose.
What will amount to a specific appropriation is a question of fact, and therefore depends upon the various circumstances of each particular case. From the following cases the reader will be able to form a general idea of the nature of a specific appropriation and its limits.
A correspondent of the bankrupty, before his bankruptcy, drew bills on him, and desired him to place them to a particular account, in the name of a third person, distinguished from their general account by a particular letter, and which the bankrupt said he would do. The correspondent also drew other bills on other persons to answer the former bills, and remitted the latter for that purpose to the bankrupt, with directions to place these to the same account. The former bills, not having been paid by the bankrupt, were sent back, protested, and paid by the correspondent; and the latter bills, which had been remitted to answer them, remained at the time of the bankruptcy in the possession of the bankrupt unnegotiated. This was holden to be a specific appropriation.—See also Ex parte Oursell
, Amb. 297. In a case of bills remitted to B. a banker", after an account transmitted by him to C. his correspondent, on the balance of which account C. was indebted for bills (accepted by B. and then outstanding, which C. had drawn upon B. under an agreement to make remittances to answer the same when due; the bills remitted to answer the acceptances (which were not paid by the banker, but by the correspondent himself after the bankruptcy of B.) were considered as in the nature of goods in the possession of a factor: and, therefore, that they belonged to the correspondent, subject to B. the banker's lien for the balance due to him at the time of the bankruptcy: and that, having been deposited by the bankrupt with another banker, who had set them short in the bankrupt's book, they were the same as if still in the possession of the bankrupt. "An agreement having been entered into by B.$, a trader residing in London, to purchase of C., his correspondent at Manchester, all the light gold which should be sent by the latter from Manchester to London, and to accept bills at two months for the money due
q Ex parte Dumas, I Ves. 582. and
1 Atk. 232.
Zinck v. Walker, Bl. R. 1154.
the sale, and to accept, from time to time, other bills drawn by C. for his own convenience, but that in such case C. should remit value to the amount of such acceptances, to answer together with the light gold for the different bills so drawn : B. became a bankrupt, and C. being at the time of the bankruptcy considerably indebted upon the balance of the account, but ignorant of an act of bankruptcy committed, sent a quantity of light gold and some bills, in order to enable the bankrupt to pay his acceptances for him when they should become due. Č. afterwards paid the amount of the bankrupt's acceptances for him to the holders, and claimed the gold and bills as against the assignees. There were no other accounts between the parties, but upon these dealings, which had been carried on in the manner stated for some years. This was held to be a specific appropriation, like the case of principal and factor, and the agreement was distinguished into different parts; of which, though the first was merely a contract for a bargain and sale; the latter part was considered as a contract, of which the effect was, that the bankrupt should become the banker of his correspondent and accept his bills, the latter remitting the value to the amount, in light gold and bills : and to which latter part of the contract the other had no other relation than as incidentally ascertaining the rate at which the gold was to be taken. The plaintiff, by letter, requested permission of B.t to place in his hands bills which had a long time to run, and to be allowed to draw without renewals at shorter dates, and desired B. to calculate the sum to be drawn for, allowing commission. The bills of long date, indorsed by the plaintiff, were included in this letter; to which B. returned an answer, saying, that agreeably to the plaintiff's wishes, he had discounted the bills, and then specified the amount for which the plaintiff might draw upon him as desired. The plaintiff drew bills accordingly on B. who accepted the same, but shortly afterwards became a bankrupt, and these acceptances were dishonoured. The bills received from the plaintiff remained in the hands of B. at the time of the bankruptcy, unnegotiated; but the assignees of B. possessed
s Took v. Hollingsworth, 5 T. R. 215.
S. C. in error, 2 H. Bl. 501.
t Parke v. Eliason, 1 East's R. 544.
themselves of these bills, and received the amount of them. An action for money had and received having been brought by the plaintiff against the assignees, it was holden, that it would lie; for the application to the bankrupt was not to sell bills of long date for those of shorter date, but to place those long bills in the hands of the bankrupt, upon condition of being allowed to draw short bills upon him; and, though in his answer he used the term discount, yet he assented to the terms of the first letter, and used that word merely as a mode of ascertaining what he was to receive for the accommodation. The bills, therefore, having been deposited upon a condition, and that condition not having been complied with, and they remaining in specie in the hands of the bankrupt at the time of the bankruptcy, the plaintiff might have brought trover for them against the assignees, but they having parted with the bills and received the value, this action
had and received would well lie in lieu of trover to recover the bills. See further on this point Giles v. Perkins, 9 East, 12; Erp. Sargeant, 1 Rose, 153; Bent v. Puller, 5 T. R. 494.
A., B., C., and D. were partners in a banking-house at Liverpoolu, and C. and D. also carried on a separate mercantile concern in London. J. S. having accepted bills pavable at the house of C. and D. employed A., B., C., and D. to get them paid accordingly, and agreed to deposit with them good bills indorsed by him for the purpose of enabling them so to do; A., B., C., and D. debited J. S. in account for his acceptances, and credited him for all the bills which he deposited; some of the bills so deposited by J. S. were remitted by A., B., C., and D., to C. and D.; upon the general account between the two houses, and before any of the acceptances of J. S. became due, both houses failed, and J. S. was obliged to pay his own acceptances; it was holden, 1st, that the assignees of C. and D. were entitled to retain against J. S. the bills remitted to them by A., B., C., and D.: held also, that it made no difference that one of the hills remitted did not arrive in London until after the bankruptcy of C. and D., though sent by A., B., C., and D. before the event. The ground on which this decision proceeded, appears to have been this : that C. and D., notwithstanding their partnership with A. and B., were parties capable of acquiring a property in the bills in question, as capable as any third party: that they had acquired such property without reproach, and in truth in pursuance of that agreement upon which they were delivered
u Bolton v. Puller, 1 Bos and Pul. 539.