the law, it would have done so. I find, however, nothing in the act to indicate such intention. No such inference can be drawn from the interpretation clause (section 61.) as to the meaning of the word "dwelling-house." Every word of that clause is satisfied by the 7th section. On the whole, therefore, it seems to me that these rooms are not lodgings, and the appellants are not lodgers, and that on this ground the decision of the Revising Barrister was right. On the other ground, also, I am equally of opinion that the decision was rightly in favour of the respondent. The reason why the 78th section of the Reform Act was passed may have been, that parliament thought it right that the members for the town should be elected by those who were connected with the town, and not by those who were only connected with the University, the University having its own representatives. The effect, however, of the 78th section was to exclude those who occupied rooms in any of the colleges of the University from the right to vote for members for the town in respect of such occupation. If that be so, what reason is there why such 78th section should not be incorporated with the Representation of the People Act, 1867? I can find none. By the 56th section of that later act it is enacted, that all enactments then in force relating to the representation of the people shall apply to any constituency thereby authorized to return a member, and to the franchises thereby conferred. I do not think that there can be any doubt as to the proper construction of that section; but if there be any, it is removed by the 59th section, for if the Reform Act and the act of 1867 be construed as one, there can be no difficulty in holding that this 78th section is incorporated with the later act, since there is nothing in that act which is inconsistent with or at all interferes with our considering that that 78th section is reenacted. In the face of such an enactment as the 59th section, enacting that that act of 1867, so far as is consistent with its tenor, shall be construed as one with the Reform Act, I am not disposed to give effect to the inferences of Mr. Mellish, from the reference in the latter part of that 59th section to the provisions of the 24th and 25th sections of 2 Will. 4. c. 45. Under all these circumstances, I am of opinion

that the decision of the Revising Barrister should be affirmed.

BYLES, J.-On the last ground mentioned by my Lord I have no doubt whatever. The provision contained in the 78th section of the Reform Act against persons voting in the borough election in respect of their occupation of chambers in any of the colleges is incorporated with the Representation of the People Act, 1867. The 56th section says, not only that all laws and enactments, but also that all customs relating to the representation of the people shall apply this is important, for it shews that the 56th section may relate to such rights of voting as were then existing in particular places. Then the 59th section is a very tyrannical enactment, because it says that the expressions "the provisions hereinafter contained" and "; as aforesaid " in sections 24. and 25. of 2 Will. 4. c. 45. shall be deemed to refer to the provisions of that act of 1867; now what can be stronger than saying that such words as "as aforesaid" shall refer to something enacted several years afterwards? The result is, that the 59th section, making the two acts as one, has said that persons shall not be entitled to vote for members for the town in respect of the occupation of chambers in any of the colleges of the Universities of Oxford or Cambridge. With respect to the other question, I have on a former occasion endeavoured to define the word "lodger"; but I shall entirely abstain from doing so again, certainly in public. I will only say that I think it must mean a lodger in the ordinary and popular sense, and that in no such sense can these appellants be lodgers.

MONTAGUE SMITH, J.-I am of the same opinion. The 78th section of the Reform Act is incorporated in all its entirety in the Representation of the People Act, 1867. The intention of the legislature when it enacted that 78th section of the Reform Act appears to have been to have kept the constituency of the University as it was before that statute, and to have prohibited at the same time those who had chambers in the colleges from voting for members for the town in respect of the occupation of such chambers. There must have been some policy, though unknown to us now, which dictated that clause when the occupation franchise was created; and I see nothing in the Representation of the People

Act, 1867, to shew that that is to be changed. I cannot understand why a person in respect of these chambers shall be unable to vote as an occupier, and yet be allowed to vote as a lodger. So far from any change being contemplated by the legislature, there is no reference to this 78th section in the act of 1867 as a section which is to be repealed; and further than that, the words of the 56th and 59th sections of the act of 1867 are large enough to incorporate the 78th section with the later act. It is sought to bring these appellants within the act of 1867, by contending that they are lodgers, and, as such, entitled to the lodger franchise conferred by that act. Then the 56th section says that the former enactment, viz., the 78th section of the Reform Act, shall apply "to the franchises hereby conferred." In addition to this there is the 59th section, which states that the two acts shall be read together as one so far as it is consistent with the tenor of the act of 1867; and it seems to me to be consistent with the tenor of such later act that this 78th section of the former act should be read as forming part of the act of 1867. On these grounds I am of opinion that, though the appellants should come within the term of lodgers, they would be prevented from being entitled to be on the register of voters by reason of the 78th section of the Reform Act. But I am also of opinion that they are not lodgers within the meaning of the Representation of the People Act, 1867. It is admitted by Mr. Mellish that these rooms, in respect of the occupation of which the appellants claim to be lodgers, are so structurally severed from the rest of the building as to constitute them separate houses within the meaning of the decisions of Cook v. Humber (6) and Henrette v. Booth (7). If so, the appellants were occupiers of houses, and entitled to vote as such occupiers if the other conditions of the act of 1867 were complied with; but the nature of the occupation cannot be changed so as to convert the appellants into lodgers when the conditions required for the occupation franchise have not been complied with. The distinction between persons living as lodgers in houses wholly let out in apartments or lodgings and persons living in chambers, as in the Inns of Court, was adverted to by me in Stamper v. the Churchwardens, &c. of Sunderland-near-the-Sea (8), and that is quite

consistent with what I now decide, that these appellants cannot be treated as lodgers.

BRETT, J.-In order to support the case of the appellants, Mr. Mellish was bound to contend that the appellants were lodgers, and also that they were not, as lodgers, prohibited from voting by the 78th section of the Reform Act. If that 78th section is incorporated with the Representation of the People Act, 1867, then the appellants would be so prohibited, because the franchise they claim is in respect of the occupation as lodgers of chambers in colleges, and the 78th section says that no person shall have the borough franchise in respect of his occupation of chambers in any of the colleges. Now, that that 78th section is incorporated with the Representation of the People Act, 1867, is, I think, clear both from section 56. and section 59. of the later act. The 78th section relates to the representation of the people, and therefore is an enactment within the meaning of the 56th section; and if, by the 59th section, the Reform Act is to be read, as that section says it is, as part of the later act, then there is nothing further required to make this 78th clause applicable to the lodger franchise, which these appellants claim. Should the appellants be held to be lodgers and this 78th clause not applicable, this consequence would follow the Master of Trinity College would not be entitled to vote because of the premises occupied by him being under the annual value of 107., whilst each of the undergraduates would be entitled to vote. I am, moreover, of the opinion also that these appellants are not lodgers. It is clear that no one can be entitled to both the occupation and lodger franchise in respect of the same premises. Mr. Mellish was obliged to admit that the chambers occupied by the appellants would be within the definition of a separate house so as to qualify the appellants as occupiers; and therefore, as that is the case, without defining what are lodgers, except as I agree they must be persons who occupy lodgings, these appellants necessarily cannot be lodgers. Decision affirmed.

Attorneys-Meyrick, Gedge & Loaden, for appellants; Matthews & Bartlett, for respondents.

Bankruptcy Fraudulent Preference— Partnership-Action, Joinder in-Solvent Partner and Assignees of Bankrupt Partner

Where one of two partners has, in fraud of the other and by way of fraudulent preference, indorsed bills of exchange of the firm to a separate creditor of his, in payment of a private debt, and has afterwards become bankrupt, his assignees may treat the indorsement as void as against them, and if the indorsement be invalid also as against the solvent partner by reason of the creditor having taken the bills with knowledge of the fraud, the assignees and such solvent partner may sue jointly in trover for the recovery of the bills from such creditor.

Trover for bills of exchange, with counts for money had and received and on accounts stated.

Pleas-to the counts in trover, not guilty and not possessed; and to the money counts, never indebted.

The plaintiffs Heilbut and Rocca were the creditors' assignees of George Spill, a bankrupt who during the year 1866 had been in partnership with the other plaintiff, Thomas J. Briggs, in the business of manufacturers of waterproof clothing. On the 13th of December, 1866, Spill indorsed in the partnership name to the defendant, but, as the defendant was aware, without the knowledge or consent of Briggs, the bills of exchange which were the subject of this action, the indorsement being made to the defendant, as was now admitted, by way of fraudulent preference for a private debt which Spill owed to him. The bills belonged at the time to the partnership, and were bills drawn by the firm upon and accepted by different customers of theirs, and amounted in the aggregate to 314l. 5s. 4d.

On the 13th of March, 1867, Spill was arrested by a judgment creditor, and remaining in prison was, on the 18th of April following, adjudicated a bankrupt by the visiting registrar, pursuant to the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134).

The assignees of the bankrupt, treating the said indorsement of the bills by him as NEW SERIES, 38.-C. P.

void as against them, brought this action, jointly with Briggs, the solvent partner, to recover the amount of the bills which had been so indorsed to the defendant.

The cause was tried, before Montague Smith, J., at the London sittings after Michaelmas Term, 1868, when it was objected on behalf of the defendant that the plaintiffs could not recover in this action, since, if there had been no bankruptcy, the plaintiff Briggs must have joined Spill as plaintiff in the action, when the indorsement by the one partner would have been an answer to the action by the two, and as the act of bankruptcy did not relate back beyond the 13th of March, 1867, the date of the bankrupt's arrest, the assignees could have no better title than the bankrupt himself would have had in case there had been no such bankruptcy. Under these circumstances the learned Judge nonsuited the plaintiffs, but reserved leave to them to move to enter a verdict for 3147. 5s. 4d., the amount of the bills, the Court having all powers of amendment of a Judge at Nisi Prius under the Common Law Procedure Act, 1860, and to be at liberty to draw inferences of fact. A rule nisi to that effect having been obtained by Butt, for the plaintiffs,

Keane and Barnard now shewed cause. -The bankruptcy was upon the act of bankruptcy committed by lying in prison, which is created by section 71. of the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134). The title of the assignees, therefore, would have relation back only to the time of his arrest, which in this case was the 13th of March, 1867. They then became tenants in common with Briggs of Spill's interest in the partnership property. Had either Spill or the firm of Spill & Briggs, at that time or on the 12th of March, the day before the arrest, any property in these bills of exchange? It is submitted that they had not. The defendant's title to them was complete on the 13th of December, 1866; and before the bankruptcy neither Spill nor Spill & Briggs could have sued the defendant for them. Briggs might, perhaps, have proceeded against the defendant and Spill in equity or at law for a conspiracy; but, unless the partnership was dissolved, he could not alone have brought an action against the defendant to recover the bills or their amount. Neither could he have sued

2 N

jointly with Spill. The case of Jones v. Yates (1) is an authority that where one partner is incapable of suing in respect of the partnership property the firm cannot sue, even although the act which has prevented the partner from suing was done by him in fraud of his copartners. Then, what better rights has Briggs since the bankruptcy than he had before? He cannot take advantage of the fraudulent preference. Fraudulent preference might give a right of action to the assignees in respect of the bankrupt's interest in the bills; but it would give no joint cause of action to the assignees and the solvent partner Briggs. Briggs might recover damages in an action for conspiracy, but they would be confined to the injury to his interest in the partnership property. His cause of action cannot be combined with any right of action the assignees may have on account of a fraudulent preference. There is, however, no authority for assignees of a bankrupt partner suing jointly with the solvent partner where the two partners could not have sued had there been no bankruptcy. The case of Thomason v. Frere (2) was where the solvent partner joined with the assignees of the other partners, who had become bankrupts, in an action for the money received by a creditor under a bill belonging to the firm which had been indorsed to him by the bankrupt partners; but there the indorsement was after the act of bankruptcy, and therefore after the dissolution of partnership; so that the property was vested in the assignees jointly with the solvent partner, and they could properly sue together for it.

Butt (Archibald with him), in support of the rule. The defendant knew when he received these bills that Spill was indorsing them in fraud of Briggs; therefore the indorsement passed no property in the bills to the defendant as against Briggs. It is true that the latter could not have sued alone for the bills, nor could he have sued jointly with Spill. However, upon the bankruptcy of Spill, it was competent for his assignees to disaffirm his act of indorsing the bills. They have done so here, and the effect of so disaffirming it is to

(1) 9 B. & C. 532. (2) 10 East, 418.

make it invalid as against them at the time it was done. Therefore, the indorsement gave the defendant no title to the bills, either as against Briggs or the assignees of Spill; and Briggs and these assignees became tenants in common of the property and entitled to join in this action to recover the bills. Jones v. Yates (1) only decides that the assignees could not sue where the bankrupt they represented could not have sued, but it excepted the case where there had been a fraudulent preference, which it is admitted there had been here. The case of Thomason v. Frere (2) is in favour of this action, and so also is Burt v. Moult (3). Moreover, the act of one partner taking the joint assets of the firm and paying therewith a separate creditor is a fraud on the separate creditors of such partner, and his assignees in bankruptcy are entitled to disaffirm such act and to recover the whole amount.

WILLES, J.-This case raises a question of considerable nicety with respect to the rights of the assignees of a bankrupt partner and the solvent partner to join in an action for the recovery of partnership property. In the circumstances of the present case the question is rather one as to joinder of parties than as to the substantive rights of the plaintiffs. It appears that Briggs and Spill were in partnership, and that Spill owed the defendant a private debt. The firm possessed at the time a quantity of bills payable to them, and to apply those bills to private purposes was a fraud on the firm. Spill, however, did profess to indorse those bills to the defendant in payment of his private debt in the form in which they would have been indorsed if he had indorsed them for the firm, and the defendant took them knowing that the transaction was a fraud upon the firm. The effect of this transaction, therefore, would have been, if Spill had not subsequently become bankrupt, that one partner had paid his debt with property belonging to both. That being the case, if the partners had brought a joint action to recover the bills a difficulty would have arisen, because Spill would have been estopped by his own

(3) 1 Cr. & M. 525; s. c. 2 Law J. Rep. (N.s.) Exch. 227.

act from saying he had not authority to indorse the bills. Whether there would have been an answer to a separate action by Briggs it is not necessary now to say. There is no doubt that Briggs could have maintained some action or suit by which to reimburse himself for his loss in respect of the fraud practised upon him by Spill and the defendant; but there would have been the difficulty I have mentioned in the way of any joint action by Briggs and Spill. The same difficulty would have existed in full force in respect of an action brought by Briggs and the assignees of Spill after Spill's bankruptcy if nothing else had appeared, since the assignees have no better title than the bankrupt; and unless it can be shewn that a case of fraudulent preference constitutes an exception, the plaintiffs cannot recover. That makes it necessary to consider the exact nature of the difficulty in the way of a joint action by Briggs and Spill. That difficulty appears to arise from the rule that two persons cannot maintain an action when there is a good ground of defence against one of them. It seems in this case rather to arise from the law of estoppel than from the fact that any property in the bills had passed to the defendant, for the indorsements must be taken not to have professed to pass anything beyond Spill's interest since the defendant knew the circumstances under which they were made; and therefore, according to Johnson v. Kennion (4), they would not amount to a transfer even of the bills, because, by the law merchant, an indorsement must be of the whole of a bill. I should be inclined, if it were necessary, to decide in the plaintiff's favour on that ground. But even if it is looked upon as if it were a transfer of goods instead of bills, and put upon the ground which Mr. Butt has principally argued, the difficulty would still arise from Spill having transferred his interest in the chattels, and Briggs being unable to sue as tenant in common, for no one would suppose that Spill could transfer more than his own interest. What, then, is the effect of Spill's bankruptcy? It is that the assignees have become entitled to Spill's property, and are

(4) 2 Wils. 262.

bound to distribute it. They would be entitled to Spill's partnership property, if any, and would be trustees of his partnership creditors as well as of his private creditors, since the property would have to be distributed amongst them all, only in different orders; and it is a disadvantage to the assignees, as representing both classes of creditors, to be deprived of any part of Spill's share in the partnership property. I apprehend, therefore, that the law of fraudulent preference does apply to the present case. The law of fraudulent preference is quite distinct from any relation back of the assignee's title. It entitles them to say where the bankrupt has made an assignment of any of his property to one of his creditors, as was done in the present case, that the transaction as against them shall be void. Applying that rule here, Spill's assignees may say, and they have said, that the handing over of the bills to the defendant shall be void, viz., shall be considered as if it had never taken place, the effect of which is to defeat the estoppel. In respect of passing the property likewise the election of the assignees has made the transaction null. The result is, that Spill's assignees are not joined in this action to enforce a right which was possessed by Spill before his bankruptcy, but in respect of a right of property which is subject to no difficulty, and which is founded on the law of fraudulent preference. Mr. Keane's objection that Spill's assignees and Briggs were suing in respect of different rights was certainly ingenious. In truth, they are really suing in respect of one right, viz., that of property, though the difficulties in their way are got rid of by different means. Apart, therefore, from authorities, which are, I think, however, in accordance with our decision, I have come to the conclusion that the rule ought to be made absolute.

MONTAGUE SMITH, J.-I am of the same opinion. No doubt on the merits the plaintiffs ought to succeed, and I am glad to find, after a full discussion, that they can maintain this action. I am satisfied, after Mr. Butt's argument, that the assignees have such a title to the bills as tenants in common with Briggs as to give them and Briggs a joint right of action. There was a fraud committed by Spill on Briggs, because