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What is deemed the

of the bankrupt.

them, the case was held not to be within the statute (i).

The possession of the trader's servant is equipossession valent to the possession of his master (k), and the

possession of a third party will not be deemed adverse, if the trader be allowed to continue his trade as usual with the goods (I). Property in possession of a bankrupt-vendee will pass to the assignees, though the condition of the sale were, that, in the event of bankruptcy, the vendor might retake it (m). Property belonging to a dormant partner will pass to the assignees of the ostensible partner, in the event of the bankruptcy of the latter (n).

In order to satisfy the statute, some overt act possession. must be done by the trader to divest the posses

sion out of himself(.). Where the goods remained, after the sale, in the bonded warehouse of the vendor, till the time of his bankruptcy, though the

What di. vests the

(i) Smith v. Topping, 5 B. & Ad. 674.

(k) Jackson v. Irvine, 2 Campb. 48. [As to the admissibility of evidence of reputed ownership, and of a contrary reputation, see Gurr v. Rutton, Holt, N. P. C. 327; Oliver v. Bartlett, 1 B. & B. 269. And see 1 Bingh. N. S. 335.]

(1) Toussaint v. Hartop, Holt, N. P. C. 335; Doker v. Hasler, 2 Bingh. 479; Longman v. Trip, 2 N. R. 67.

(m) Holroyd v. Gwynne, 2 Taunt. 176.

(n) Ex parte Enderby, 2 B. & C. 389, (seems to overrule Coldwell v. Gregory, 1 Price, 119.) And see Ex parte Dyster, 2 Rose, B. Ca. 256.

(o) See Shaw v. Hervey, 1 Ad. & Ell. 920, 925; Davis v. Dale, Lloyd & Welsby, Merc. Ca. 291.

purchaser's initials were marked upon them, they were held to be in the bankrupt's possession, order, and disposition, within the statute (p). So it is, if the goods lie at a wharf, and the purchaser neglects to have his name transferred in the wharfinger's books (9); or, where the goods have been traded with in the name of the bankrupt vendor (r). But if as good a delivery, as the nature of the Symbolical

delivery. case admits of, be made by the vendor to the purchaser, the property will not pass to the assignees; as, where a quantity of timber is taken possession of by the symbolical delivery of a halfpenny (s). So, the assignment of the bill of lading vests the property in a cargo of goods at sea (t); or, the delivery of the grand bill of sale, of a vessel at sea (u). So, the assignment of West India Dock warrants, (or of any transfer tickets(x),) was held to transfer the property in sugars, &c., lying at the docks (y); or, the lodging of a delivery-order with

(p) Knowles v. Horsfall, 5 B. & A. 134. See Lingard v. Messiter, 1 B. & C. 308.

(9) See Jones v Dwyer, 15 East, 21.
(r) Gordon v. E. 1. Company, 7 T. R. 228.
(s) Manton v. Moore, 7 T. R. 67.

(t) Brown v. Heathcote, 1 Atk. 160. See Lempriere v. Pusley, 2 T. R. 485.-Post.

(u) Atkinson v. Maling, 2 T. R. 462.

(x) Ridout v. Alder, 1 Mont. 103. See Wilkinson v. Reay, Dan. & Lloyd, Merc. Ca. 202.

(y) Lucas v. Dorrien, 1 B. Moore, 29; Greening v. Clarke, 4 B. & C. 316; Davenport, ex parte, 1 Deac. & Chit. 397.

statute.

the wharfinger, although the goods were not actually transferred in the wharfinger's books ().

Where the goods remain in the warehouses of the vendor, undistinguished from the rest of his stock, they will pass to the assignees on his bankruptcy (a). Otherwise, if the goods have been kept distinct, and the purchaser has, by some act, appropriated them to himself; as, where the purchaser of wine left it with the merchant for his own convenience, but had the bottles sealed with

his own seal, and deposited in a particular bin (6). Mere tem- And, in general, mere temporary custody of goods porary cus. tody, not

is not within the statute (c); as, where the purwithin the

chaser of a carriage, being abroad, left it for a period agreed upon in the custody of the coachmaker, who afterwards became bankrupt(d); or, where a purchaser sends timber to a wharf for sale, directing his servant to sell them, and the owner of the wharf becomes bankrupt(e); or, where a father allows his son, as agent merely, to

(2) Tucker v. Ruston, 2 C. & P. 86; Arbouin v. Williams, Ry. & Moo. 72. See 2 Campb. 246.

(a) Thacktwaite v. Cocks, 3 Taunt. 487. See White v. Wilks, 5 Taunt. 176; Batten, ex parte, 3 Deac. & Chit. 328.

(6) Ex parte Marrable, 1 Glyn. & Jam. 402.

(c) Ex parte Flyn, in re Matthews, 1 Atk. 185; see Muller v. Moss, 1 M. & S. 335. [And see above, p. 111, and the cases there cited, as to the power of a vendee, being in embarrassed circumstances at the time of the receipt of the goods, to decline accepting them, and to re-transfer the property to the vendor.]

(d) Bartram v. Payne, 3 C. & P. 175.
(e) Boddy v. Esdaile, 1 C. & P. 62.

carry on trade with the goods ($). So, property, placed in the hands of a trader for some specific purpose, will not, in the event of his bankruptcy, pass to the assignees (g); thus, where an agent contracted in his own name, but in reality on behalf of his principal, to supply certain timber, the timber, being placed in his hands for the purposes of the contract, was held on his bankruptcy not to pass under the statute (h). Goods obtained under false pretences do not pass(i). But goods sent to a trader on sale or return, remaining in his possession at the time of his bankruptcy, though sent only for such special purpose, have been held to pass to the assignees(k); unless the trader, after receiving them, left them unpacked, and exercised no act of ownership (I). And, where chattels and fixtures are let on lease together to a trader, though the fixtures do not pass (m), the chattels

(f) Stafford v. Clarke, 1 C. & P. 24.

(8) Tooke v. Hollingworth, 5 T. R. 215; Moore v. Barthrop, 1 B. & C. 5; S. C. 2 D. & R. 25.

(1) Collins v. Forbes, 3 T. R. 316. See Davis v. Living, Holt, N. P. C.275.

(1) Gladstone v. Hadwen, 1 M. & S. 517, (which seems to overrule Milward v. Forbes, 4 Esp. 171.) See 2 Bingh. 517.

(k) Livesay v. Hood, 2 Campb. 83.

(1) Gibson v. Bray, 8 Taunt. 76; S. C. 1 B. Moore, 519. The trader became bankrupt on the evening of their arrival.

(m) Clark v. Crownshaw, 3 B. & Ad. 804 ; Combs v. Beaumont, 5 B. & Ad. 72; Boydell v. M.Michael, 1 Cr. Mees. & R. 177.

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will be held to go to the assignees, under the

statute(n). Specific ap

Where the trader, before his bankruptcy, has
propriation
by trader. specifically appropriated certain property in favour

of a third party, it will not be considered to be
within the possession, order, and disposition of the
bankrupt, and will not therefore pass to the
assignees under the statute :--as, where the trader
gives a written order, for the sale of certain goods
in the hands of a third party, in order to apply
the proceeds to the payment of an outstanding
bill, but becomes bankrupt before the sale takes
place(0); or, where he requests the defendant
(being his debtor) to pay to J.S. (being his creditor)
the sum of money due from the defendant, which
the latter promises to do, but the trader becomes
bankrupt, after the amount had been ascertained,
but before the payment has been made (p). So it
is, where a party accepts bills of exchange drawn
by the trader, on the faith of a special agreement,
that the proceeds of a certain consignment shall
be applied to the payment of the bills(9); or,
where a party advances money upon an express

(n) Horn v. Baker, 9 East, 215; Bryson v. Wylie, 1 B. & P.
83, n.; Sinclair v. Stephenson, 2 Bingh. 514; Lingham v. Biggs,
1 B. & P. 82.

(0) Baily v. Culverwell, 8 B. & C. 448; Favenc v. Hullett, 1 Campb. 554. See Graff v. Greffulhe, 1 Camph. 89.

(p) Crowfoot v. Gurney, 9 Bingh. 372; Bedford v. Perkins, 3 C. & P. 90.

(9) Thomas v. Da Costa, 2 B. Moore, 386.

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