remitting the value to the amount, in light gold and bills: and to which latter part of the contract the other had no other relation than as incidentally ascertaining the rate at which the gold was to be taken. The plaintiff, by letter, requested permission of B. (p) to place in his hands bills which had a long time to run, and to be allowed to draw without renewals at shorter dates, and desired B. to calculate the sum to be drawn for, allowing commission. The bills of long date, indorsed by the plaintiff, were included in this letter; to which B. returned an answer, saying, that agreeably to the plaintiff's wishes, he had discounted the bills, and then specified the amount for which the plaintiff might draw upon him as desired. The plaintiff drew bills accordingly on B., who accepted the same, but shortly afterwards became a bankrupt, and these acceptances were dishonoured. The bills received from the plaintiff remained in the hands of B. at the time of the bankruptcy, unnegotiated; but the assignees of B. possessed themselves of these bills, and received the amount of them. An action for money had and received having been brought by the plaintiff against the assignees, it was holden, that it would lie; for the application to the bankrupt was not to sell bills of long date for those of shorter date, but to place those long bills in the hands of the bankrupt, upon condition of being allowed to draw short bills upon him; and, though in his answer he used the term discount, yet he assented to the terms of the first letter, and used that word merely as a mode of ascertaining what he was to receive for the accommodation. The bills, therefore, having been deposited upon a condition, and that condition not having been complied with, and they remaining in specie in the hands of the bankrupt at the time of the bankruptcy, the plaintiff might have brought trover for them against the assignees; but they having parted with the bills and received the value, this action for money had and received would well lie in lieu of trover to recover the bills. See further on this point, Giles v. Perkins, 9 East, 12; Exp. Sargeant, 1 Rose, 153; Bent v. Puller, 5 T. R. 494; Jombart v. Woollett, 2 My. & Cr. 389.

A., B., C., and D. were partners in a banking-house at Liverpool (q), and C. and D. also carried on a separate mercantile concern in London. J. S., having accepted bills payable at the house of C. and D., employed A., B., C., and D. to get them paid accordingly, and agreed to deposit with them good bills indorsed by him for the purpose of enabling them so to do; A., B., C., and D. debited J. S. in account for his acceptances, and credited him for all the bills which he deposited; some of the bills so deposited by J. S. were remitted by A., B., C., and D., to C. and D.; upon the

(p) Parke v. Eliason, 1 East's R. 544.

(q) Bolton v. Puller, 1 Bos. & Pul. 539.

general account between the two houses, and before any of the acceptances of J. S. became due, both houses failed, and J. S. was obliged to pay his own acceptances; it was holden, 1st, that the assignees of C. and D. were entitled to retain against J. S. the bills remitted to them by A., B., C., and D.: held also, that it made no difference that one of the bills remitted did not arrive in London until after the bankruptcy of C. and D., though sent by A., B., C., and D. before the event. The ground on which this decision proceeded, appears to have been this: that C. and D., notwithstanding their partnership with A. and B., were parties capable of acquiring a property in the bills in question, as capable as any third party that they had acquired such property without reproach, and in truth in pursuance of that agreement upon which they were delivered to the banking-house; C. and D. were therefore to be considered as third persons with whom the bills had been negotiated (18). A banker has a lien for the amount of his balance upon a check paid in by a customer on his running account (r).

Secondly, this statute does not extend to goods of which the bankrupt has merely a temporary custody (19). As where a trader having sold goods which were lying on a quay (s), it was agreed between him and the vendees, that the goods should be removed, and lodged in a warehouse until the vendees should give orders for the shipping the same off as opportunity offered, they having none at that time; and accordingly the trader caused the goods to be removed into a warehouse of his own for the purpose of this agreement. A few weeks after the trader became a bankrupt; the goods still remaining in his warehouse. This was holden not to be within the statute; because it was a mere temporary custody of the goods, and it could not, with any propriety, be said that they were in the order, disposition, or power of the bankrupt.

(r) Scott v. Franklin, 15 East, 428.

(s) Ex parte Flyn, 1 Atk. 185.

(18) If A. deposit bills indorsed in blank with B., his banker, to be received when due, and B. raises money upon them by pledging them with C., another banker, who is not acquainted with the circumstances under which the bills came into the hands of B., and afterwards B. becomes bankrupt, A. cannot maintain trover for the bills against C. Collins v. Martin, 1 Bos. & Pul. 648.

(19) Contrary to the express words of the statute, factors have been excepted out of it for the sake of trade and merchandize." Per Lord Hardwicke, Ch., in Ex parte Dumas, 1 Atk. 234; 2 Ves. 585. "By the course of trade, bankers and factors must have the goods of other people in their possession, and therefore this does not hold out a false credit to the world." Per Buller, J., in Bryson v. Wylie, 1 Bos. & Pul.

Thirdly, the statute does not extend to those cases where the property has been delivered to the vendee, as fully as the nature of such property will admit (20). As where a trader having borrowed of the defendant a sum of money (t), gave him a bond for 1200l., and on the same day, as a collateral security, assigned to him the bills of lading and policies of insurance of the cargo of a ship then at sea; the policies of insurance were indorsed to the defendant, 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 show 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 (u), 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. Goods were sent from London to Sutherland upon sale and return, and a letter inclosing an invoice, requested the buyer to return such as were not approved in as short a time as possible. The goods arrived at the shop of the buyer on the evening of the 13th of November, and on the following day he committed an act of bankruptcy; it was holden (v), that these goods did not pass to the assignees, under this statute, as the bankrupt should have been

(t) Brown v. Heathcote, 1 Atk. 160.
(u) Lempriere v. Pasley, 2 T. R. 485.

(v) Gibson v. Bray, 1 Moore, (C. P.) 519; 8 Taunt. 76, S. C.

(20) See Manton v. Moore, 7 T. R. 67, and ante, p. 201, which, though not decided on this statute, affords an useful illustration of the principle here insisted on.

allowed a reasonable time to select such goods as he was disposed to retain.

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 (w), 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 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 to every case of possession, not, for instance, to the case of a ready furnished lodging. So where the bankrupt had possession of the goods for a special purpose only (x), and had not the order and disposition of them.

A vendor, a warehouseman, sold to a party wines, then in his warehouse, for which a bill, accepted by the vendee, at three months, was given, the vendor putting into the hands of the vendee a note, acknowledging that he held the wines, subject to his order, rent free. The acceptance was dishonoured, and amount not paid. Afterwards, vendee became bankrupt, the wines still remaining in vendor's warehouse. It was holden (y), that this section did not apply; for it referred to cases where the bankrupt shall," by the consent of the true owner," have goods in his possession; here the bankrupt, if he had possession, was himself the true owner, under the contract of sale.

Where, by agreement between B. and the defendant, B. agreed, on payment to him of a certain sum, 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 three months without paying rent; which 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 three

(w) Walker v. Burnell, Doug. 316; 3 T. R. 321, S. C., cited Smith v. Scott, 9 Bingh. 15.

(x) Collins v. Forbes, 3 T. R. 316, and

Lawrence, J., Gordon v. E. I. Company, 7 T. R. 237.

(y) Townley v. Crump, 4 A. & E. 58; 5 Nev. & M. 606.

months; held (z), that this was not a possession by the bankrupt within the statute.

Lastly, the possession which a husband (a), 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 statute; 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. By stat. 6 Geo. IV. c. 16, s. 73, if any bankrupt, being at the time insolvent, shall (except upon the marriage of any of his children, or for some valuable consideration,) have conveyed, assigned, or transferred to any of his children, or any other person, any hereditaments, offices, fees, annuities, leases, goods, or chattels, or have delivered or made over to any such person any bills, bonds, notes, or other securities, or have transferred his debts to any other person, or into any other person's name, the commissioners shall have power to sell and dispose of the same as aforesaid; and every such sale shall be valid against the bankrupt, and such children and persons as aforesaid, and against all persons claiming under him.

VII. Of Warrants of Attorney, Conveyances, and Payments made by and to Bankrupts.

THE legislature, in order to provide a remedy for the injustice done to creditors by secret warrants of attorney, has, by stat. 3 Geo. IV. c. 39, s. 1, [24th June, 1822,] enacted, "that after the 29th of September, 1822, if the holder thereof shall think fit, every warrant of attorney (21) to confess judgment in any personal action, or a true copy thereof, and of the attestation thereof, and the defeazance [which, by s. 4, must be written on the same paper or parchment,] and indorsements thereon, in case such warrant of attorney shall be given to confess judgment in B. R., or such a true copy thereof as aforesaid, in case such warrant of attorney shall be given to confess judgment in any other court, shall, within twenty-one days

(z) Muller v. Moss, 1 M. & S. 335. See also Hickenbotham v. Groves, 2 C. & P. 492.

(a) Jarman v. Woolloton, 3 T. R. 618. recognized in E. of Shaftesbury v. Russell, 1 B. & C. 666.

(21) By stat. 1 & 2 Vict. c. 110, s. 9, no warrant of attorney to confess judgment or cognovit actionem shall be of any force unless executed in the presence of and attested by an attorney expressly named by the person giving the same. See Taylor v. Nicholls, 6 M. & W. 91.