sion, which entitles him now to call upon us to stay the bankrupt's certificate.

1832.

Ex parte BOSTOCK,

The rest of their Honors concurring,

The petition was dismissed with costs.

The order drawn up was as follows:

"It is ordered, that the said petition be, and the same is hereby dismissed; and that the said certificate of conformity of the said L. W. Wright, the bankrupt, be forthwith allowed and confirmed. And it is further ordered, that the said J. B. Bostock do pay to the said assignees, and also to the said L. W. Wright and William Hobson, their respective costs occasioned by this application; and that such costs be taxed by the Master of the Court of Chancery in rotation, if the parties differ about the same."

1832.

April 27.

PRACTICE IN COURT.

Westminster, THE Court intimated, that motions or petitions consented to, or unopposed, might be brought on at the sitting of the Court, before the paper of the day was gone into. But that none which were opposed would be taken until after the paper was gone through.

Ex parte JOHN DAVENPORT, HENRY DAVENPORT, and
MOUNTFORD FYNNEY.-In the matter of JOHN LEECH.

THIS petition, and the affidavit in support of it,

1832. Westminster, April 27, May 3.

The custom at

the London

Docks is to acknowledge no

unless accom

stated, that the bankrupt stood indebted to the petitioners in the sum of 15007. for monies lent at various title in wines, times, and for goods sold. On the occasion of his borrowing the last sum advanced to him, the petitioners requested security for the whole amount due to them;

panied with pos

session of dockwarrants indorsed by the party to whom

they originally

issued. Where

warrants from

for which the bankrupt accordingly gave a promissory note, (which had not arrived at maturity at the time of 4. received the bankruptcy,) and also certain dock-warrants for B. not indorsed by B., and A. wines then lying in the London Docks, which it ap- delivered and peared had been transferred, though not indorsed, by

one Medley to the bankrupt. The bankrupt, however, indorsed these warrants at the time of delivering them to the petitioners, and they were accompanied with a certain memorandum of agreement expressive of the terms of the deposit dated the 8th December 1831.

The petitioners afterwards caused these warrants to be exchanged at the docks for similar warrants, making

indorsed them

to C., who afcured B.'s in

terwards pro

A.

became dorsement, and bankrupt :

Held, the wines passed to C., though notice of transfer, to dock company, and indorsement by B., were subse

quent to the bankruptcy.

for want of B.'s

the wines deliverable to the petitioners, or their order, Held also, that by indorsement on the warrants, which last mentioned indorsement to warrants the petitioners still held. The commission A. and transfer was issued on the 22d December 1831, and the act of in the combankruptcy took place the day preceding.

into A.'s name

pany's books, A. never had the order and

them.

Under these circumstances, the petitioners prayed disposition of that they might be declared equitable mortgagees of the wines, and for the usual order for sale, and liberty to bid, &c.

Mr. Montagu, for the petitioners, relied on the

1832.

Ex parte DAVENPORT and others.

cases of Lucas v. Dorrien (a), Zwinger v. Samuda (b), Ridout v. Lloyd (c).

Mr. Swanston, for the assignees, referred to an affidavit which the bankrupt had made in this matter, stating that at the time of the above transaction he was in a state of insolvency. He then contended that this assignment was a fraudulent preference; and that the mere transfer or delivery of the dock-warrants was, according to the case cited on the other side, not sufficient to pass the equitable interest in the wines to the petitioners. In order to make the transfer valid, there ought to have been an indorsement on the warrants themselves, and notice of the transaction given to the bailees. Until such notice was given, the goods were merely in transitu, and might have been stopped by the bankrupt; so that no property could at that time pass to the petitioners. The mere circumstance of the warrants having been received by the petitioners from the dock company, in exchange for those delivered by the bankrupt to the petitioners, although they referred to an indorsement having been made on those delivered by the bankrupt, was not in itself sufficient to warrant the Court in presuming that the indorsement was actually made. The property therefore was never effectually parted with by the bankrupt, but remained in his reputed ownership, and consequently passed to his assignees.

The COURT, being of opinion that they could not decide the case, without having before them some evidence of the fact of the indorsement, or of the (a) 1 Moore, 29; S. C. 7 Taunt. 278. (b) 7 Taunt. 265. (c) 1 Mont. 103.

custom to transfer the warrants without such indorsement, desired the case might stand over for that purpose.

The case was accordingly brought on again this day, when witnesses were examined vivâ voce as to the points on which the Court desired further information.

It was stated by Thomas Coxhead, an accountant in the wine department at the London Docks, that the three warrants delivered by the bankrupt to the petitioners were not lodged by them at the dock office until the 8th January 1832; that the warrants had then an indorsement on them from Medley, dated the 4th January, and that there was no previous notice of the transfer of the warrants to the petitioners. He stated that the custom of the office was, on the application of a party to whom warrants were indorsed, to give him fresh warrants instead of the old ones, and that the wines are afterwards delivered to any one who brings in the warrants last issued, without requiring previous notice of any transfer. But that the wines are never delivered without the production of the warrants, nor without the indorsement of the party to whom the warrants have been issued. The witness added, that the wines stood in the name of Medley, in the dock company's books on the 21st December last, and that they would therefore not have been delivered to any one without his indorsement; but that since the 4th January the wines have stood in the name of Davenport & Co. On his cross-examination, the witness stated he was aware of the bankruptcy of Leech, when he issued the fresh warrants to the petitioners, and that he made no objection on that ground to exchanging the warrants. A clerk of the petitioners proved, that towards the

1832.

Ex parte DAVENPORT

and others.

May 3.