abroad. held by Sir W. Grant, that he was entitled to retain what Property he had recovered, to the extent of satisfying his joint debt. (1) And where the attachment of property in a foreign country is complete before the act of bankruptcy, the creditor is then, of course, entitled to hold the property attached against the assignees, in satisfaction or reduction of his debt. (2) Whenever, also, property has been duly recovered by a creditor from the bankrupt's debtor, by process of local law, the assignees are not entitled to claim the value of it again, as against such debtor. (3) A., a merchant at Paris, purchased in his own name, but with the money and on the account of B. (a merchant at Bristol) certain bank shares in the French funds; and B. afterwards drew bills on A., which A. accepted, on the security of those shares standing in his name; three of which bills were purchased by C. (a British subject) for a valuable consideration paid to B. Before the bills became due, B. authorised A. by letter to sell the bank shares, in order to reimburse himself against these bills; but previous to the arrival of that letter, A. had stopped payment, and the bills were dishonoured. B., also, afterwards became bankrupt; and C. then, by process according to the French law, attached the bank shares (still standing in the name of A.) for the debt due to him as the holder of the bills; and the French court decreed, that the bank shares should be sold, and that the proceeds should be applied, first to pay a debt due from B. to A., and afterwards to retire the bills; and C., under this decree, received a certain sum Under these circum of money on account of the bills. (1) Brickwood v. Miller, 3 Meriv. 279. Sir W. Grant expressed a doubt in this case, whether the reasoning of Lord C. J. Eyre, in Philips v. Hunter, has ever re DD ceived a completely satisfactory answer. (2) Ex parte D'Obree. Ex parte Le Mesurier, 8 Ves. 82. (3) Le Chevalier v. Lynch, Doug. 170. Property they being in law his property, and vested in him-though in trust for B., after satisfying his own lien. (1) abroad. Courts here will favour the claims of foreign assignees. Upon the same principle, as the courts here refuse to acknowledge the validity of an attachment made by a creditor on the bankrupt's property abroad, which may give him an undue preference over the other creditors,— so the English courts will equally give effect to the claim of Foreign assignees, (when the laws of the Foreign country are proved) in the recovery of personal property here;and will prevent a creditor from obtaining an exclusive satisfaction out of such property, to the prejudice of the Foreign assignees. (2) SECTION V. Of Property in the Possession, Order, or Disposition of the 1. What things are within the Statute. 2. What Possession is within the Statute. 3. Possession as Factor, Banker, or Broker. 4. Possession as Trustee, Executor, or Administrator. By section 72. of the new statute, it is enacted (3), that if any bankrupt at the time he becomes bankrupt shall, by the consent and permission of the true owner thereof, have in his possession, order, or disposition, any goods or chattels, whereof he was reputed owner, or whereof he had taken upon himself the sale, alteration, or disposition, as owner, the commissioners shall have power to sell and dispose of the same for the benefit of the creditors under the commission. But any transfer or assignment of any ship or vessel, or any share thereof, made as a security for Reputed ownership. any debt, either by way of mortgage (1) or assignment, duly registered according to the provisions of the new register act, (4 Geo. 4. c. 41. s. 44.) is not to be invalidated, or affected, by this enactment. And, 1st, as to what things are within the Statute. The object of the above enactment is to remedy the mischief arising from a trader holding out a delusive responsibility to the world, by appearing to be possessed of a stock in trade, or of other valuable articles, which are the subjects of sale and immediate transfer. The goods and Only perchattels, therefore, comprehended within the meaning of the sonal chattels. statute, must be taken to mean personal chattels, and not to comprise chattels real. For the possession, and power of disposing, of goods and personal chattels, are the only evidences of ownership, to which persons dealing with traders generally look; but with respect to real property, the fact of mere possession is not such evidence of ownership, as to induce a creditor to rely on it; it being a matter of notoriety, that real estates are frequently mortgaged, and that the mortgagor usually remains in possession of the property. (2) No creditor, therefore, can with reason say, that he has been deceived by the bankrupt's possession of property of that description. For this reason, fixtures, and things affixed to the free- Not fixhold, that are mortgaged with the premises to which they tures, &c. belong (3); or even shares in a public company, whose funds arise from the rents, or tolls, issuing out of real estate (4), are not within the above enactment. But move (1) A mortgagee of a ship was not formerly so protected. Stephens v. Sole, 1 Ves. 352. Hay v. Fairbairn, 2 B. & A. 193. Monkhouse v. Hay, 2 B. & B. 114. 4 Moore, 57. 8 Price, 256. Kirkley v. Hodgson, 1 B. & C. 588. (2) Ryal v. Rolle, 1 Atk. 168, 1 Ves. 348. (3) 1 Atk. 176. Horn v. Baker, 9 East, 215, (4) Ex parte Vauxhall Bridge Company, i G. & J. 181. moveable utensils, unless let Reputed able utensils not fixed to the freehold, such as a brewer's or ownership. distiller's vats (1), or a dyer's plant (2), will be affected by Aliter, it; unless, indeed, they are utensils of a particular trade, in which there is a well-known usage for the trader to have those utensils let to him on hire-the possession of them by usage. in that case not imposing on the world a false appearance of property in the possessor (3)—as in the manufacturing counties, where it is a common practice for the working hosiers, spinners, and weavers to have on hire the possession of stocking-frames, and other valuable machines, which they are unable to purchase. And the same exception, perhaps, will be found to apply to the case of job horses, and carriages, which it is a well-known practice to have on hire. (4) So, where a COLLIERY was demised to the bankrupt, with certain engines, machinery, and implements, which were to be rendered up to the lessor at the expiration, or other sooner determination, of the lease-and, the tenant failing in the payment of the rent, the lease became forfeited, and the landlord recovered a judgment in ejectment, but did not execute the writ of possession until the day before the tenant became bankrupt, - it was held, that the tenant never had under this demise the possession, order, or disposition of the engines and machinery within the meaning of the 21 Jac. 1. c. 19. s. 10. (from which statute the above section is taken), but a mere qualified right to use them during the term; and that, even if they had been in his possession within the meaning of the statute, they would have ceased to be so, when the landlord resumed possession by executing the writ of inquiry. Neither was the tenant considered to have such order and disposition of them, though he continued to work the colliery, and have the use of them during the intermediate (1) 9 East, 215. (2) Bryson v. Wylie, 1 B. & P. 83. note (a). 1 C. B. L. 234. Ex parte Dale, Buck, 565. Lingard v. Messiter, 1 B. & C. 308. (3) Per Le Blanc J. 9 East, 244. ; and see Storer v. Hunter, 5 B. & C. 368. (4) Per Lawrence J. 5 Taunt. 490. ownership. time, between the recovery of the judgment in ejectment, Reputed and the execution of the writ of possession - a period of fifteen months. (1) action. All choses in action (2) are within the enactment; as Choses in shares in a public company (3), bills of exchange (4), and policies of insurance (5), as well as a share in a newspaper (6), stock in the public funds (7), and a patent for an invention. (8) 2. What Possession is within the Statute. - As to what possession will constitute a case of reputed ownership, within the meaning of the above enactment, that is a question more of fact, than of law, — and, as such, peculiarly within the province of a jury to determine. (9) The Possession possession of property is, of course, prima facie evidence of primá facie evireputed ownership; and more or less strong, according to dence. the circumstances under which that possession was acquired, or is retained. The possession, however, must be acquired before the act of bankruptcy, in order to constitute a possession within the meaning of the statute. when had once When a bankrupt has once been the ostensible owner of Still property, and he continues in the visible possession of it at stronger, the time of his bankruptcy, that is a very strong case of bankrupt reputed ownership; and can only be rebutted by clear proof, not only that there has been a transfer of the property from the bankrupt, but that such transfer was notorious to the world; for when a man has been at one time been the owner. |