mark shall be prima facie evidence of his right to the exclusive use of the trade mark, and shall, after the expiration of five years from the date of the registration, be conclusive evidence of his right to the exclusive use of the trade mark, subject to the provisions of this Act (7).

Debts of a Bankrupt.-It should perhaps be repeated here, that by the Bankruptcy Act, 1883, upon the appointment of a trustee in bankruptcy, the property of a bankrupt passes to and vests in such trustee, and that the property passes from trustee to trustee and vests in the trustee for the time being during his continuance in office, without any conveyance, assignment, or transfer whatever; and the trustee's certificate of appointment shall, for all purposes of enrolment, &c., be deemed to be a conveyance, &c., and may be enrolled, &c. accordingly (m).

66

And "property" in this Act includes, generally, money, goods, things in action, and every description of property, whether real or personal, whether situate in England or elsewhere; also obligations, easements, and every description of estate, interest, and profit, present or future, vested or contingent, arising out of or incident to property as above defined" (»).

And this applies to after-acquired property (0).

Debts, generally.-By the Rules of the Supreme Court which have the force and effect of statutory enactments, provision is made for the attachment (by a judgment creditor) of all debts owing or accruing from third persons to the judgment debtor to answer the judgment or order, and the garnishee may be ordered to appear before the Court to show cause why he should not pay to the judgment creditor (p). So, too, the same rules provide for the charging of stock or shares in favour of a creditor of the holder of stock or shares; and such charging has the

(1) Sect. 76.

(m) 46 & 47 Vict. c. 52, s. 54.

(») Sect. 168.
(p) Ord. XLV. r.

(0) Sect. 28.

same effect as 1 & 2 Vict. c. 110, ss. 14 and 15, and 3 & 4 Vict. c. 82, s. 1 (q).

And where any moneys or securities are in Court to the general credit of any cause or matter or to the account of any class of persons, an order may be made to prevent the transfer or payment of such moneys or securities on behalf of a judgment creditor of the persons entitled to such moneys or securities ().

Unclaimed Stock, &c., and Dividends.-By the East India Unclaimed Stock Act, 1885 (48 & 49 Vict. c. 25), provision is made for the payment to the Secretary of State of all money arising from redemption of stock which has remained unclaimed for a period of ten years or more (s); and for the transfer of all such unclaimed stock to an "account of the Secretary of State in Council of India to be held by him subject to the claims of parties entitled thereto (t); every such transfer is to be signed by the accountant-general or some other special official of the bank in whose books the stock stands at the time of transfer, "and shall be as effectual to all intents as if signed by the person in whose name the stock was then standing" (u). Similar provision is also made for the re-transfer and payment to parties showing title; three months' notice by advertisement or otherwise must be given of such intention to transfer before re-transfer or payment of such stock and dividends thereon (). The same Act deals similarly with East Indian Railway Annuities unclaimed, and in respect of unclaimed Indian Railway debentures (). No stamp duty is chargeable on such transfer (x).

Indian Railway Debentures.-The same Act (48 & 49 Vict. c. 25) empowers any Indian railway company to issue, with the sanction of the Secretary of State, debenture bonds payable to bearer and negotiable by delivery; like bonds payable to order and negotiable by indorsement of the holder; debenture bonds payable in rupee currency ().

The issue of such bonds, &c., is further regulated by the East India Loan Act, 1893 (56 & 57 Vict. c. 70).

By the Metropolitan Board of Works (Money) Act, 1885, similar provisions are made and powers given in respect of stock created by the Board of Works, and all shares or interest therein (z).

Share in Partnership.-By the Partnership Act, 1890 (53 & 54 Vict. c. 39) it is enacted:-"An assignment by any partner of his share in the partnership, either absolute or by way of mortgage or redeemable charge, does not, as against the other partners, entitle the assignee, during the continuance of the partnership, to interfere in the management or administration of the partnership business or affairs, or to require any accounts of the partnership transactions, or to inspect the partnership books, but entitles the assignee only to receive a share of profits to which the assigning partner would otherwise be entitled, and the assignee must accept the account of profits as agreed to by the partners."

In case of a dissolution, whether as respects all the partners or as respects the assigning partner, the assignee is entitled to receive the share of the partnership assets to which the assigning partner is entitled as between himself and the other partners, and, for the purpose of ascertaining that share, to an account as from the date of the dissolution (a).

(y) Sect. 23.

(a) 53 & 54 Vict. c. 39, s. 31. (z) 48 & 49 Vict. c. 50, ss. 27-43.

Book IV.

ASSIGNABILITY OR TRANSFER, MAINLY BY

OPERATION OF LAW.

CHAPTER I.

(I) TRANSFER BY DEATH.

In the preceding pages we have considered the assignability of choses in action by the direct intention and voluntary act of the parties concerned.

We shall now deal with the occasions and circumstances in which mainly-though not entirely-the transfer of rights and privileges in respect of choses in action is due to the operation of various rules of law.

And in the first place let us consider the manner in which death of a person affects his rights, duties, or liabilities.

Generally speaking, by the death of a person all his personal estate, all rights of action affecting his personal estate, as well as all liabilities chargeable upon it, pass to his executors or administrators.

Transfer by operation of law consequent upon death may be considered according to whether the chose in action accrued to the deceased's estate during his lifetime. or after his death; whether the subject-matter of the chose in action be ex contractu or ex delicto; whether the deceased's estate be the estate to receive the benefit or bear the burden of such chose in action; and, lastly, according to whether the deceased has by testament

disposed of the chose in action or died intestate in respect thereof. ·

(i) CHOSES IN ACTION WHICH ACCRUE during the lifetime OF THE OWNER AND SURVIVE TO THE EXECUTOR OR ADMINISTRATOR.

The general principle is, as stated, that where the deceased had rights of action on which he might have sued in his lifetime, such rights survived him, and were transmitted to his executor or administrator (a). But sometimes a person has a right of action which, upon his death, does not go to his personal representative; and there are some interests which a person may not assign inter vivos, yet may dispose of freely by testament.

The personal representatives can recover all lawful debts due to the deceased, whether debts of record, such as judgments; or specialty debts, such as bonds and covenants; or simple contract debts, such as bills of exchange for goods sold and delivered (a).

No action of account, however, lay for an executor at common law, because, it was said, account rested in the privity and knowledge of the testator only (b). But this was remedied by the Statute of Westminster II. (13 Edw. I. stat. 1, c. 23), which gave to executors the power to bring an action of account. By 25 Edw. III. stat. 5, c. 5, this power was extended to the executors of executors; and by 31 Edw. III. stat. 1, c. 11, to administrators.

The executor of an assignee of a bail-bond might have brought an action upon it (c). The same holds good in respect of all covenants and, indeed, nearly all contracts made in favour of the testator and broken in

(a) 1 Saund. 216, a, n. (1) to Wheatley v. Lane. See, also, Orme v. Broughton, 10 Bing. 533; 38 R. R. 544; Knight v. Quarles, 4 Moo. 532; 22 R. R. 659; Bishop v. Curtis, 18 Q. B. 878; Timmis v. Platt, M. & W. 720; Murray v. E. I. Co., 5

B. & Al. 216; 24 R. R. 325;
Watkins v. Maule, 2 Jac. & Walk.
243; Bradshaw v. Lancs. & Yorks.
Rail., L. R. 10 C. P. 189.

(b) Co. Litt. 89b; 2 Inst. 404.

(e) Com. Dig. Administration (B. 13); Vin. Abr. Exors.