Mortgage of goods. course only be judged of by circumstances. Thus it has been held that if the owner of goods make an absolute assignment of them by deed to one of his creditors, and yet remain in the possession of the goods, such remaining in possession is a badge of fraud, which renders the assignment void, by virtue of the statute, as against the other creditors (g). But if the assignment be made to secure the payment of money at a future day, with a proviso that the debtor shall remain in possession of the goods until he shall make default in payment, the possession of the debtor, being then consistent with the terms of the deed, is not regarded in modern times as rendering the transaction fraudulent within the meaning of the statute (h). Such a transaction is in fact a mortgage of the goods, analogous to a mortgage of lands (i). The property in the goods passes at law by the deed to the mortgagee (k), whilst the possession of them rightfully remain with the mortgagor. The mortgagee therefore cannot maintain an action of trover for the goods against a stranger, until default has been made by the mortgagor in payment of the money secured (7). In this respect a mortgage of goods differs from a mere pledge, in which the property in the goods remains with the pledgor, and the pledgee obtains possession only, the right to retain which constitutes his lien for the money he has advanced (m), and enables him to main (g) Twyne's case, 3 Rep. 80 b; 1 Smith's Leading Cases, 1; Edwards v. Harben, 2 T. Rep. 587. (h) Edwards v. Harben, 2 T. Rep. 587; Martindale v. Booth, 3 Barn. & Adol. 498; Reed v. Wilmot, 7 Bing. 577. (i) See Principles of the Law of Real Property, 331. (k) Gale v. Burnell, 7 Q. B. 850. (1) Bradley v. Copley, 1 C. B. 685. If the mortgagor should retain possession after default in payment at the time specified, it may be doubted whether the security would not then be void as against creditors under the statute of Elizabeth, for by the terms of the deed, the mortgagor is only to enjoy possession until default. (m) Ante, p. 26. tain an action of trover (n). The chief disadvantage in a mortgage of goods is, that, as the goods continue in the possession of the mortgagor as reputed owner, they will, by virtue of provisions in the bankrupt and insolvent acts, become liable, in the event of his bankruptcy or insolvency, to be sold for the benefit of his creditors generally (o). And even if the mortgagee should have obtained possession of the goods, he will not be allowed to avail himself of his bill of sale, in the event of the subsequent insolvency of his debtor (p). payment of Choses in possession have long been liable to invo- Involuntary luntary alienation for the payment of the debts of their alienation for owner. On the decease of any person, his personal debts. property generally has always been liable, in the first place, to the payment of his debts of every kind. And if a creditor take proceedings against his debtor in the debtor's lifetime, a sale of his goods and chattels may be procured by means of a writ of fieri facias (fi. fa.) Writ of fieri issued in execution of the judgment of the court. This facias. writ is of very ancient date, and is usually said to be given by the common law; though some suppose that its name arose from the wording of the statute of Edward I. (q), by which the writ of elegit was provided (r). The writ directs the sheriff to cause the debt to be realized out of the goods and chattels of the debtor, quod fieri facias de bonis et catallis, &c.; and a sale of the goods is made by the sheriff accordingly. (n) Legg v. Evans, 6 Mee. & Wels. 36. (o) Ryall v. Rolle, 1 Atk. 165, 170; S. C. nom. Ryall v. Rowles, 1 Ves. sen. 348; stat. 6 Geo. IV. c. 16, s. 72; 1 & 2 Vict. c. 110, s. 57; 7 & 8 Vict. c. 96, s. 17. See post, p. 47. (p) Stat. 1 & 2 Vict. c. 110, s. 61. See Hunt v. Robins, 3 Q. B. 300. See also stat. 7 & 8 Vict. (9) Stat. 13 Edw. I. c. 18, (r) Bac. Abr. tit. Execution (C).. Statute of Frauds. Levari facias. Elegit. Goods however are not, like lands, affected by the mere entry of a judgment of a court of law against their owner. The debtor was always allowed to alienate his goods until the writ of execution was issued; although, by a fiction of law, all judicial proceedings, writs of execution included, formerly related back to the first day of the term to which they belonged (s). Goods, therefore, which had been sold after the first day of a term, might yet practically have been seized under a writ of fi. fa. relating back to that day, but subsequently issued. To remedy this evil, it was enacted by one of the sections of the Statute of Frauds (t), that no writ of fieri facias or other writ of execution shall bind the property of the goods against which it is sued, but from the time that such writ shall be delivered to the sheriff, undersheriff, or coroners, to be executed; and the officer is required, upon receipt of the writ, to indorse on it (without fee) the day of the month and year on which he received it. Goods and chattels may therefore be safely alienated, although judgment may exist against the owner, provided a writ of execution be not actually in the hands of the sheriff. And an alienation to secure or satisfy another creditor is not void within the above-mentioned statue of the 13 Elizabeth (u), although made with the intention of defeating an expected execution of the judgment creditor (x). Besides the sale of goods under the writ of fieri facias, there might also be a writ of levari facias, now disused, by which the sheriff levied the corn and other present profit which grew on the lands, together with the rents then due, and the cattle thereon (y). And by the writ of elegit, the goods of the debtor are delivered to his creditor at an appraised (s) Com. Dig. tit. Execution (D 2); Anon. 2 Ventr. 218. See 2 Sugd. Vend. & Pur. 9th ed. 198. (t) Stat. 29 Car. II. c. 3, s. 16. (u) Stat. 13 Eliz. c. 5. (x) Wood v. Dixie, 7 Q. B. 892. (y) 2 Wms. Saunders, 68 a, n. (1). value, together with possession of his lands (z). It has however been recently enacted, that the wearing apparel and bedding of any judgment debtor or his family, and the tools and implements of his trade (not exceeding in the whole the value of five pounds), shall not be liable to seizure under any execution or order of any court against his goods and chattels (a). vests in the assignees. possession, Choses in possession are also liable to involuntary Bankruptcy. alienation on the bankruptcy of their owner. In this Personal estate of bankrupt event all the personal estate of the bankrupt, wheresoever the same may be found or known, vests at once in the assignees under the bankruptcy by virtue of their appointment (b); and in order to prevent traders from obtaining false credit from the possession of property which is not their own, it is provided (c) that if any Goods in the bankrupt, at the time he becomes bankrupt, shall, by order, or dispothe consent and permission of the true owner thereof, sition of a bankhave in his possession, order, or disposition, any goods vent. or chattels, whereof he was reputed owner, or whereof he had taken upon him the sale, alteration, or disposition as owner, the commissioner acting in the bankruptcy (d) shall have power to sell and dispose of the same for the benefit of the creditors. Similar provisions have also been made in favour of the assignees of persons taking the benefit of either of the acts for the relief of insolvent debtors (e). (2) Pullen v. Purbecke, 1 Ld. Raym. 346. See the present forms of this writ and of the writ (b) Stat. 6 Geo. IV. c. 16, s. 63; 1 & 2 Will. IV. c. 56, s. 25. See post, the chapter on Bankruptcy. (c) Stat. 6 Geo. IV. c. 16, s. 72; Fawcett v. Fearne, 6 Q. B. 20. (d) Stat. 1 & 2 Will. IV. c. 56, s. 7; 5 & 6 Vict. c. 122, ss. 59, et seq. (e) Stat. 1 & 2 Vict. c. 110, s. 57; 7 & 8 Vict. c. 96, s. 17. See post, the chapter on Insolvency. rupt or insol CHAPTER IV. OF SHIPS, THERE is one important class of choses in possession which the policy of the law has rendered subject to peculiar rules, namely, ships and vessels. In order to encourage British shipping, many privileges with respect to the importation and exportation of goods have been British vessels. conferred exclusively on British vessels (a); but no ship can, with some slight exceptions, be admitted to be a British ship unless duly registered and navigated as such (b). The rules respecting the navigation of British vessels do not fall within the scope of our present treatise; but their registration is important as affecting the property which may be held in them. By a recent act Registration of of parliament "for the registering of British vessels (c)," British vessels. the laws on this subject have been consolidated, and the provisions of former acts re-enacted. According to these provisions, no ship can enjoy the privilege of a British vessel unless it be registered by the collector and comptroller of customs in the port of the united kingdom to which it belongs, or by other officers in the colonies and possessions abroad (d). Prior to registration, a declaration must be made by the owner of the vessel, or by a prescribed number of the owners if more than one, in a form provided by the act (e), stating when and where the ship was built, and the names, occupa (a) Stat. 8 & 9 Vict. c. 88. The former statutes were 3 & 4 Will. IV. c. 54, and 6 Geo. IV. c. 109, besides earlier statutes. (b) Stat. 8&9 Vict. c. 88, s. 13. (c) Stat. 8 & 9 Vict. c. 89. The former statutes were 3 & 4 Will. IV. c. 55; 6 Geo. IV. c. 110, and 4 Geo. IV. c. 41, besides earlier statutes. (d) Stat. 8 & 9 Vict. c. 89, ss, 2, 3, 10, 11. (e) Sect. 13. |