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 bankrupt, 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 q Ex parte Dumas, 1 Ves. 582. and r Zinck v. Walker, Bl. R. 1154. 1 Atk. 232. 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 upon 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. t Parke v. Eliason, 1 East's R. 544. S. C. in error, 2 H. Bl. 501. 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 for money 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; Exp. Sargeant, 1 Rose, 153; Bent v. Puller, 5 T. R. 494. A., B., C., and D. were partners in a banking-house at Liverpool", and C. and D. also carried on a separate mercantile concern in London. J. S. having accepted bills payable 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 bills 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. to the banking-house; C. and D. were therefore to be considered as third persons with whom the bills had been negotiated (13). A banker has a lien for the amount of his balance upon a cheque paid in by a customer on his running account*. Secondly, this statute does not extend to goods of which the bankrupt has merely a temporary custody (14). As where a trader having sold goods which were lying on a quay, it was agreed between him and the vendees, that the goods should be removed, and lodged in a warehouse until the vendees should give orders for the shipping the same off as opportunity offered, they having none at that time; and accordingly the trader caused the goods to be removed into a warehouse of his own for the purpose of this agreement. A few weeks after the trader became a bankrupt; the goods still remaining in his warehouse. This was holden not to be within the statute; because it was a mere temporary custody of the goods, and it could not, with any propriety, be said that they were in the order, disposition, or power of the bankrupt. Thirdly, the statute does not extend to those cases where the property has been delivered to the vendee, as fully as the nature of such property will admit (15). As where a trader having borrowed of the defendant a sum of money, gave him a bond for 12007., and on the same day, as a collateral x Scott v. Franklin, 15 East, 428. y Ex parte Flyn, 1 Atk. 185. z Brown v. Heathcote, 1 Atk. 160. (13) If A. deposits bills indorsed in blank with B. his banker, to be received when due, and B. raises money upon them by pledging them with C. another banker, who is not acquainted with the circumstances under which the bills came into the hands of B., and afterwards B. becomes bankrupt, A. cannot maintain trover for the bills against C. Collins v. Martin, 1 Bos. and Pul. 648. (14) "Contrary to the express words of the statute, factors have been excepted out of it for the sake of trade and merchandize." Per Lord Hardwicke, Ch. in ex parte Dumas, 1 Atk. 234. 1 Ves. 585. "By the course of trade, bankers and factors must have the goods of other people in their possession, and therefore this does not hold out a false credit to the world." Per Buller, J. in Bryson v. Wylie, 1 Bos. and Pul. 84, n. (15) See Manton v. Moore, 7 T. R. 67. and ante, p. 202, which though not decided on this statute, affords an useful illustration of the principle here insisted on. security, assigned to him the bills of lading and policies of insurance of the cargo of a ship then at sea; the policies of insurance were indorsed to the defendant, but the bills of lading were not. The trader became a bankrupt, and a bill in equity was filed by the plaintiff, as his assignee, for the goods, insisting on the circumstance of the defendant's not having been put in possession of them at the time. But Lord Hardwicke, Ch. was clearly of opinion, that the defendant was entitled to retain possession of every thing until his debt was satisfied, because every thing which could shew a right to the cargo being delivered over to the defendant, the bankrupt could no longer be said to have the order and disposition of it: and, therefore, the case did not fall within the meaning of this statute. So where a tradera, being indebted to the defendant, in consideration of the defendant advancing him a further sum, agreed to assign the cargo of a ship then homeward bound, of which he had received letters of advice, and to deposit the policy of insurance on the goods in the hands of the defendant, and, as soon as the bills of lading were transmitted to him, to indorse and deliver the same over to the defendant. The policy and letters of advice were deposited with the defendant accordingly, and the bill of lading was indorsed over to him as soon as it arrived, but not till after an act of bankruptcy committed by the trader. On the arrival of the ship the goods were delivered to the defendant. Trover having been brought by the assignees of the bankrupt, it was holden, that the preceding case of Brown v. Heathcote applied strongly to the present, and, although in that case there was an assignment of the bill of lading, and here only an agreement to assign, yet that did not make any difference, as neither conveyed more than an equitable title. Goods were sent from London to Sutherland upon sale and return, and a letter inclosing an invoice, requested the buyer to return such as were not approved in as short a time as possible. The goods arrived at the shop of the buyer on the evening of the 13th of November, and on the following day he committed an act of bankruptcy; it was holden, that these goods did not pass to the assignees, under this statute, as the bankrupt should have been allowed a reasonable time to select such goods as he was disposed to retain. Fourthly, the statute does not apply to those cases where the bankrupt has possession of the goods for a special purpose only; as where a bankrupt, after his certificate, and who a Lempriere v. Pasley, 2 T. R. 485. c Walker v. Burnell, Doug. 316. 3 T. R. 321. S. C. cited Smith v. Scott, 9 Bingh. 15. |