the customs of trade (a), unless, and so far as, customs of this kind have been affected by the Factors' Act of 1877 (b).* Eu Coming

Though goods remain in the possession of the pawnor debtor, they will not be in his reputed ownership, if, since 1878, he has conveyed them by bill of sale (c), nor if the [pawnee or other] secured creditor has taken or endeavoured to take, or demanded possession, or done any other act indicating an unequivocal intention to obtain the goods, because they then cease to be in the bankrupt's possession with the consent of the true owner (d), though they may nevertheless pass to the trustee if in the debtor's apparent possession within the meaning of the Bills of Sale Act (e).

Goods in the hands of a factor, subject to this lien (ƒ), or entrusted to a trader debtor for a particular purpose, do not pass to his trustee as being in his reputed ownership (g), ex. gr. bills in a banker's hands for collection, or pledges in the possession of a Pawnbroker (h). On the same principle, such goods have been held to be exempt from distress (i). Contra, when horses were returned by a customer to a horse dealer, to keep them until he could send a better pair (k). The possession by

(a) Exp. Watkins, re Couston, L.R. 8 C.A. 520, 42 L.J. 50 Bk., 28 L.T. N.S. 793, 21 W.R. 530.

(b) 40 & 41 Vict., cap. 39.

AND OTHERS.

See ante, Cap. V., ON PLEDGES BY FACTORS (c) See 41 & 42 Vict., cap. 31, sec. 20.

(d) Exp. Redfern, re Ball, 19 W.R. 1058; Exp. Jay, re Blenkhorn, L.R. 9 C.A. 697, 43 L.J., 122 Bk., 31 L.T. N.S. 260, 22 W.R. 907 (in C.A.). Exp. Cox, re Reed, L.R. 1 Ch. D. 302, 33 L.T. N.S. 757, 24 W.R. 302. Taylor v. Eckersley, L.R. 5 Ch. D. 740, 36 L.T. N.S. 442, 25 W.R. 527. (e) Ancona v. Rogers, L.R. 1 Ex. D. 285, 46 L.J., 121 Ex. D., 35 L.T. N.S. 115, 24 W.R. 1000 (C.A.)

(f) Re Fawcus, L.R. 3 Ch. D. 795, 34 L.T. N.S. 807. West v. Skip, 1 Ves. 239, 244.

(g) Exp. Aiken, 2 Madd. 192; Exp. Smith, 2 Rose 457, Buck 355. (h) Re Sillence, exp. Roy, L.R. 7 Ch.D. 70, 47 L.J. 48 Bk., 37 L.T. N.S. 308, 26 W.R. 82.

(i) Swire v. Leach, 18 C.B. N.S. 479, 34 L.J. 150 C.P., 11 L.T. N.S. 680. (k) Re Robertson, 10 L.T. N.S. 105.

a wife, of jewels lent her by a tenant for life of them, will not bring them within her husband's order and disposition (a).

By analogy with the rule which requires some act on the part of an assignee of goods, to determine the debtor's reputed ownership, a creditor who claims to be secured by a pledge or assignment of debts, or other things not capable of manual delivery, must do all in his power to render the assignment as nearly as possible equivalent to the manual delivery of a chattel (b). Thus, if the security be a bond debt, the bond must be delivered to the assignee (c); if it be a simple contract debt, notice must be given to the debtor or other person from whom the assignor is to receive the money (d), even though a document such as a charter party (e), policy of Insurance (ƒ), a warrant of attorney (g), or other nonnegotiable instrument, has been delivered to the assignee. Such notice may be given after the debtor has committed an act of bankruptcy, provided the creditor has no notice thereof when he gives notice to the person whose debt has been assigned to him (h). Until such notice is given, the assignor may obtain payment of the debt, which consequently remains in his reputed ownership, and passes to his trustees as being in his order and disposition (i). Implied notice to the solicitor of the person who owes the debt so assigned, will not be notice to him, though a different rule obtains upon a transfer of real property (k).

(a) Re Robertson, 10 L.T. N.S. 105.

(b) Per Grant, M.R., Jones v. Gibbons, 9 Ves. 407, 410.
(c) Ryall v. Rowles, 1 Atk. 171; see Exp. Barnett, D.G. 194.

(d) Gardiner v. Lachlan, 8 Sim. 123.

(e) Ibid.

(ƒ) Exp. Waithman, 4 D. & C. 412; Exp. Stright, Mont. 502, 2 D. & C. 314.

(g) Exp. Price, 3 M.D. & D. 586.

(h) Re Russell's Policy, L.R. 15 Eq. 26, 27 L.T. N.S. 706, 21 W.R. 97. (i) North v. Gurney, 1 J. & H. 509. Green v. Ingham, L.R. 2 C.P. 525, 36 L.J. 236 C.P., 16 L.T. N.S. 455, 15 W.R. 841. Edwards v. Martin, L.R. 1 Eq. 121, 35 L.J. 186 Ch., 13 L.T. N.S. 236, 14 W.R. 25. (k) Exp. Price, 3 M.D. & D. 586.

It was formerly said that the onus is on the debtor's assignee [or trustee] in bankruptcy to show that notice has not been given (a), but it was very recently held that when a creditor claims protection under Sec. 95 of the Bankruptcy Act, the onus of negativing notice of an act of bankruptcy lies on him (b). Notice, and the sufficiency of notice, are always questions for the jury (c). Such notice may be verbal, if made in the course of business (d), and not by mere casual communication (e).

When a pawn has been perfected by delivery before adjudication, to a creditor having no notice of an act of bankruptcy, the pawnee's title is clear enough. But difficult questions often arise as to whether there has been such constructive delivery as will give the status of a pawnee (f) or other secured creditor. As for this purpose, the contract must contemplate the transfer of some particular thing, a covenant in a marriage settlement, to pay to the trustees a sum of money not specifically earmarked, does not amount to a specific security for that sum, but gives only a right to prove for it against the bankrupt's estate (g). Neither will a course of business between merchants, whereby A., a colonial merchant, drew bills upon, and payable by B. in London; sold the bills in the colony, and then, in order to keep B. in funds to meet the bills so drawn, bought other bills, and remitted them to B., the

(a) Exp. Stevens, 4 D. & C. 117.

(b) Exp. Cartwright, re Joy, 44 L.T. N.S. 883 (C.A.)
(c) Edwards v. Scott, 1 M. & G. 962.

(d) Exp. Agra Bank, re Worcester, L.R. 3 C.A. 555.

(e) Edwards v. Martin, L.R. 1 Eq. 121, 35 L.J. 186 Ch., 13 L.T. N.S. 236 14 W.R. 25.

(f) See ante, Cap. II.-ON THE MANNER OF PAWNING.

(g) Exp. Bishop, re Tonnies, L.R. 8 C.A. 718, 42 L.J., 107 Bk., 28 L.T., N.S. 862, 21 W.R. 716. Exp. Banner, re Tappenbeck, L.R. 2 Ch. D. 278, 45 L.J., 73 Bk., 34 L.T. N.S. 199, 24 W.R. 476.

proceeds being carried to general account (a). Contra, when goods or their proceeds were specifically appropriated to meet bills drawn against them (b); or where bills for goods to arrive were accepted conditionally on the delivery up of the bills of lading which represented them (c).

as

On the same principle, when certificates of shares bought by the bankrupt were left in the vendor's hands security for the purchase money (d); when a bankrupt pledged an unindorsed negotiable instrument to secure a debt (e), and where a bond given to secure payment of sundry bills of Exchange, was pledged by the obligor as security for his own debt (f), the pawnee or depositary was held entitled to the benefit of his security, enough having been done to constitute constructive delivery to him. So also, when goods were equitably assigned by letter (g), and when a debtor handed a bill of lading to a creditor for the purpose of clearing some goods, and afterwards agreed that the latter might, within a few days, sell the goods and apply the proceeds in payment of an overdue bill (h). Contra, when the contract to pawn was made before, but no delivery took place till after, notice of an act of bankruptcy (i).

(a) Trimingham v. Maud, L.R. 7 Eq. 201, 38 L.J. 207 Ch., 19 L.T., N.S. 554, 17 W.R. 331.

(b) Bank of Ireland v. Perry, L.R. 7 Ex. 14, 41 L.J. 9 Ex., 25 L.T. N.S. 845, 20 W.R. 300; Exp. Dewhirst, re Leggatt, L.R. 8 C. A. 965, 42 L.J., 87 Bk., 29 L.T. N.S. 125, 21 W.R. 874, following Exp. Waring, 19 Ves. 345. (c) Exp. Brett, re Howe, L.R. 6 C.A. 838, 40 L.J. 54 Bk., 25 L.T. N.S. 254, 19 W.R. 1101.

(d) Exp. Shepherd, 2 Mont. D. & D. 431.

(e) Exp. Troughton, 1 Cooke B.L. 124; Exp. Britten, re Claughton, 3 D. & C. 35; Exp. Two good, 19 Ves. 231, 232.

(f) Exp. Barnett, 1 D.G. 194.

(g) Exp. Montagu, re O'Brien, L.R. 1 C.D. 554, 34 L.T. N.S. 197, 24 W.R. 309 (in C.A.).

(h) Philps v. Hornstedt, L.R. 8 Ex. 26 (Ex. Ch.), 42 L.J. 12 Ex., 21 W.R. 174.

(i) Udall v. Walton, 14 M. & W. 254.

A pawnee [or other secured creditor] whose pawn [or other security] is not impeachable on any of the grounds above indicated, may "realize or otherwise deal with his security in the same manner as he would have been entitled to realize or deal with the same if sec. 12 of the act of 1869 had not been passed (a). Therefore, if he elects to rely on his security alone, he will be at liberty to sell it on non-redemption at the time fixed by the contract, and must pay over to the trustee any surplus realized upon such sale.

The Bankrupt Law Consolidation Act, 1849 (b), (now repealed) (c), empowered assignees in bankruptcy to redeem pledges as fully as the bankrupt himself could have done. This power is somewhat more extensive than that conferred by the act of 1869, as "the trustee in relation to and for the purpose of acquiring or obtaining possession of the property of the bankrupt, shall be in the same position in all respects, as if he were a receiver of such property appointed by the Court of Chancery (d), who would not usually be justified in paying away assets received by him except under order of Court made on his application to "enforce the acquisition or retention of property." But as (e) all the bankrupt's property, whether pawned or not, vests upon his appointment, in the trustee (f), who is "to use his own discretion in the management of the estate (g), the Court seldom refuses to sanction his redemption of a pledge when he deems such a course advisable; and as the trustee of a bankrupt trader is to "carry on the bankrupt's business so far as may