fendant, 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 trader, 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.

A ship at sea was mortgaged, with a proviso", that the mortgagor should continue in possession until failure of payment of mortgage money on demand, and at the time of the execution of the mortgage deed, the grand bill (30) of sale was delivered. The mortgagor became bankrupt. On the arrival of the ship, the mortgagee took possession of it, but the assignees took it from him and sold it; it was holden, that a Lemprier v. Pasley, 2 T. R. 485. b Atkinson v. Maling, 2 T. R. 462.

(30) It has been invariably holden, that the delivery of the grand bill of sale is equivalent to the delivery of the ship itself." Per Buller and Grose, Justices, 2 T. R. 465, 466. N. The mortgage deed in this case was executed, before the stat. 26 G. 3. c. 60. was passed. See Moss v. Charnock, 2 East, 402.

the mortgagee might maintain trover against the assignees, because, the ship being at sea at the time of the mortgage, the delivery of the grand bill of sale had sufficiently transferred the property.

So where A. on the 19th of August, having insured a ship (then lying in Dublin) for 12 months, the next day mortgaged it to B., and delivered to him all the deeds, &c. On the 14th of September following, the ship sailed for Cadiz: on the 18th of September, B. mortgaged the ship to C., and in March following, C. having notice of the arrival of the ship at Yarmouth, a few days after took possession of it. It was insisted on the part of the assignees of A., who had become a bankrupt, that B., under whom C. claimed, might have taken possession of the ship during the month the ship lay at Dublin; but it was holden, that the ship being in a foreign port, and the muniments having been delivered, there was a sufficient possession to take the case out of the statute, and that C. was entitled to the ship.

So where B. a trader deposited with A. a bill of sale of a sixteenth part of a ship', (not at sea) as security for money lent by A., and it did not appear, that the trader had acted as owner from the time of the deposit: Thurlow, Ch. held, that A. was entitled to the produce of the bill of sale against the assignees of B. who had become a bankrupt, because, in the case of assignments of shares of ships, this seemed to be the only way of delivering possession.

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 traded again for himself, was left for several years in possession of his house, household goods, and furniture, in order to assist in settling the affairs of the bankrupt estate, the assignees repeatedly stating the goods, &c. in their accounts with the creditors as part of the estate, it was holden, that such possession did not fall within the statute, so as to vest the goods in the assignees under a second commission, on the ground that the bankrupt had not the disposition so as to sell the goods, and that he was not the reputed owner.' And Buller, J. said, that possession of the goods exposed for sale in a shop might be within the statute; but possession

c Ex parte Batson, 3 Bro. Cb. C. 362.
Co. B. L. 5th edit p. 345.
dEx parte Stadgroom, 1 Vez juu. 163.
and Co. B. L. 5th edit. p. 348.

e Walker v. Buruell, Doug. 316. 3 T. R. 321. S. C.

of the furniture in a house was no more evidence of a right to that furniture, than of a right to the house. And per Ashhurst, J. the statute certainly does not extend every case of possession, not, for instance, to the case of a ready furnished lodging.

So where trover being brought to recover the value of 'some timber, it appeared that the commissioners of the victualling-office, having occasion to erect a stage at Weevil, in Hampshire, for the purpose of rolling their barrels on board the shipping, published an advertisement for carpenters to deliver in proposals for doing the work. Forbes and his partners were disposed to undertake the business, and to deliver in their proposals: but, inasmuch as they were general merchants, and not carpenters, and as there might have been difficulties in making the contract in their own name, Kent, who was a carpenter, agreed with Forbes and Company, to make the contract in his name; and he was to have one-fourth of the clear profit, and a guinea a week for his superintendance, and Forbes and Company were to supply the timber, and to have the residue of the profits. The contract was accordingly made between the commissioners and Kent; and Forbes was one of Kent's sureties, which would not have been allowed (as Forbes knew) according to the usual mode of government contracts, had he been known to have had any concern in the contract, which Kent declared he had not. The timber was bought by Forbes and Company, and shipped by them in their own name, to be sent to the yard at Weevil, where it was delivered as for Kent's use, and received by the King's officers as such, and they swore they should not have received it on account of any other person; but that they should not have permitted even Kent to dispose of it in any other manner than for the work contracted for, except such parts of it as were found unfit for the intended purpose, because they considered it as delivered for the purpose of the contract. Kent had informed the agent-victualler, that Forbes was the real contractor, but that was a secret between those persons. Before the work was finished, Kent became a bankrupt, on which Forbes got possession of the timber, to recover which the present action was brought, on a supposition that the bankrupt's creditors were entitled to it, under the 21 Jac.

1. c. 19.

It was holden, that this case did not fall within the sta

f Collins v. Forbes, 3 T. R. 316.

tute (31) on these grounds, that there never was any sale of the timber to Kent, nor any general delivery so as to give him the absolute disposition of it; for the storekeepers would not have permitted even Kent to have sold the timber to any other person, unless any part of it had been unfit to be used in performing the contract, as they considered that it was delivered only for the purpose of the contract. Therefore there could not be any danger that Kent's creditors would be induced to trust him on the credit of that property, or as supposing it liable to their debts; that the possession which he had was somewhat similar to that of a carpenter, who receives timber to convert it into a waggon; or of a taylor, to whom cloth is sent for the purpose of being worked up (32). And that it was a very different case from that of a person making a sale of any part of his property, and yet continuing in possession and taking upon him the disposition of it with the consent of the vendee; for in such case, as the property was originally his and there never was any visible alteration in it, it was a snare to induce persons to give him credit, to which the vendee, by his neglect to obtain the possession, lends his assistance, as he concurs in giving a false appearance to the transaction. But in this case, the timber came into Kent's possession in the natural course of the transaction, in which there was not any fraud either actual or constructive; for it appeared by the evidence, that the timber was originally sold to the defendants on their own account, and that the vendor did not know that the bankrupt had any concern in the transaction.

Where, by agreement between B. and the defendant, B. agreed, on payment to him of a sum certain, to convey to the defendant a dwelling-house, and to deliver possession of all the household furniture and stock, and that after formal possession delivered to the defendant, B. should be allowed to remain in possession for 3 months without paying rent; which

(31) "With regard to the case of Collins v. Forbes, I was by no means satisfied with the decision; it struck me, that when the timber was delivered to the officers of government in Kent's name, and for his use, he had the possession, and order, and disposition of it; but the court proceeded on this ground, that the bankrupt had possession of the goods for a special purpose only, and had not the order and disposition of them." Per Lawrence, J. in Gordon v. East India Company, 7 T. R. 237.

(32) See the remark of Mr. Cullen, tending to impeach the autho rity of Collins v. Forbes. Principles of the Bankrupt Laws by Cullen, p. 318. n. (106),

agreement was notorious in the neighbourhood, and the money was paid by the defendant, and a formal delivery made to him, and B. afterwards left in possession according to the agreement, who became a bankrupt whilst he so remained in possession, and before the expiration of the 3 months; held that this was not a possession by the bankrupt within the stat. 21 Jac. 1. c. 19. s. 11.

Lastly, the possession which a husband", living with his wife, has of the separate property of the wife, settled before marriage in trustees for her separate use, is not sufficient to bring a case within the statutes; and it will not be any objection to such a settlement, that the goods were not described in the deed, or referred to in a schedule annexed. It is observable, however, that if stock in trade is thus settled on the wife, for the purpose of enabling her to carry on a separate trade, if the husband intermeddles in such trade, the property will be liable to his debts.

V. Of Payments made to and by Bankrupts, protected by Statutes.

By the act of bankruptcy, all the real and personal estate of the bankrupt is vested in the assignees by relation, from the time of the act committed. The legal effect of an act of bankruptcy is to enable the assignees, when a commission is sued out, to rescind all contracts made by the bankrupt after the act of bankruptcy. This relation takes place in all cases except three, which are provided for by the statutes 1 Jac. 1. c. 15. s. 14.-21 Jac. 1. c. 19. s. 14.-and 19 G. 2. c. 32. s. 1.

Of Payments to Bankrupts protected by Statute.-By stat. 1 Jac. 1. c. 15. s. 14. it is provided, "that no debtor of the "bankrupt shall be endangered for the payment of his debt "truly and bonâ fide to any such bankrupt before such time as he shall understand or know that he is become a bank" rupt."

Without this protecting provision, a bonâ fide payment made to a bankrupt, would not have prevented the assignees from recovering the same debt. It must be observed, that

g Muller v. Moss, 1 M. and S. 335. h Jarman v. Woolloton, 3 T. R. 618.