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 goods. 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, 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 z Jackson v. Irvin, 2 Campb. 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 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 house, 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. 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

b Mace v. Cadell, Cowp. 232.

c Darby v. Smith, 8 T. R. 82. recognised by Sir W. Grant. M. R. in Caffrey v. Darby, 6 Ves. 496, 7.

C

d Jones v. Dwyer, 15 East, 21. See ante, p. 209.

e Horn v. Baker, 9 East, 215.

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."

Machinery, erected for the purposes of trade (calico printing) in a neighbourhood, (Catterall near Garstang, in the county

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. 3 Tyrw. 603. S. C.

g Thack waite v. Cock, 3 Taunt. 487. cited and distinguished in Watson v. Peache, 1 Bingh. N. C. 336.

h Knowles v. Horsfall and others, 5 B. and A. 134. See Lingard v. Mes

siter, 1 B. and C. 315, and ante, p. 212.

i Tanner v. Barnett, Kenyon, C. J.
Peake's add. Cases, 98.

k Exp. Merrable, 1 Glynn and Jamie-
son, 402, Leach, Sir John, V. C.
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 trusteeo.

Goods in the possession of a factor, 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.