the business or in any sales or purchases; but the plaintiff, who resided with the bankrupt, devoted her whole time and labour in assisting him in the management of their joint business, and although known to the plaintiff's relatives and friends and to some of the tradesmen of Swindon, it was not generally known in business that the plaintiff was a partner. The plaintiff and the bankrupt were, however, in the habit of drawing equally on account of their share of the profits, and the moneys so drawn by them were entered in the partnership book of account, headed or entitled as the "Marsh Farm Accounts," as also the rent paid to the landlord, and all payments for rates and taxes of every description, and all sums of money or bills paid by the plaintiff and the bankrupt to the different tradesmen for goods supplied to them, the amounts or respective moieties of each of them, the plaintiff and the bankrupt respectively, in discharge of such bills being set out separately in the book of

account.

On the 16th of November, 1864, the bankrupt being embarrassed on account of bills accepted by him, absconded, and then committed an act of bankruptcy, of which the plaintiff then had notice. The plaintiff remained in the farm-house and continued to sell the milk and other produce of the farm until the seizure hereafter mentioned.

On the 9th of December, 1864, T. H. Reynolds was adjudicated bankrupt upon this act of bankruptcy, and the defendants were appointed creditors' assignees. The messenger of the Court of Bankruptcy, under the usual warrant, seized and took possession, on the 9th, of the stock upon the farm on behalf of the assignees under the bankruptcy.

On the 10th, notice was given to the assignees that the plaintiff claimed an interest in the stock.

In January, 1865, the defendants, under order of the Court of Bankruptcy, sold the whole of the stock, and this action is brought to recover a moiety of the proceeds of the same.

The stock so seized and sold was either stock which had been purchased from the father of the bankrupt, or which had been purchased with money arising from the sale of the stock so purchased

from the father, or by, with or out of the profits made in carrying on the business under the circumstances before mentioned.

The question for the opinion of the Court was, whether on the facts stated the plaintiff was entitled to one half of the proceeds of the sale; and in order to determine the point the Court were to be at liberty to draw all such conclusions of fact as a jury might properly draw if the facts stated had been proved before them.

If the Court should be of opinion in the affirmative, judgment was to be entered for the plaintiff for 2007. and costs. If the Court should be of opinion in the negative, judgment was to be entered for the defendants, with costs.

Macnamara, for the plaintiff. The plaintiff's interest in the partnership stock and effects was not, at the time of the bankruptcy, in the reputed ownership of the bankrupt. The Court have to apply the words of the Bankrupt Law Consolidation Act, 12 & 13 Vict. c. 106. s. 125. (3). The effect of recent decisions has been to limit rather than to extend the operation of this section. The nature of the possession is now looked to, and where it cannot be shewn that the bankrupt has obtained false credit, and nothing like fraud or negligence on the part of the real owner is proved, the statute ought not to apply. Here the bankrupt was the true owner of one undivided half of the stock. The earlier cases which will be cited on behalf of the defendants must be read by the light of more recent decisions. In Bell v. Hamil ton (4), where a clockmaker was held not to

(3) By 12 & 13 Vict. c. 106. s. 125, "If any bankrupt at the time he becomes bankrupt shall, by the consent and permission of the true owner thereof, have in his possession, order or disposition any goods or chattels whereof he was reputed owner, or whereof he had taken upon him the sale, alteration or disposition as owner, the Court shall have power to order the same to be sold and disposed of for the benefit of the creditors under the bankruptcy. provided that nothing herein contained shall invalidate or affect any transfer or assignment of any ship or vessel, or any share thereof, made as a security for any debt or debts, either by way of mortgage or assignment, duly registered according to the provisions of an act, 8 & 9 Vict. c. 89, intituled 'An Act for the regis tering of British Vessels,' or any of the acts therein mentioned."

(4) 24 Law J. Rep. (N.s.) Exch. 45; s. c. 10 Exch. Rep. 545.

be the reputed owner of clocks left with him by the buyer to be cleaned, it is said, by Alderson, B., and his words are adopted by the Court, that a decision which is unquestionable in one century might not be applicable to a case under apparently the same set of circumstances in another century, owing to the change which has taken place in the dealings of mankind; that in olden times gentlemen did not job their carriages, but now they not only do so, but have their own arms on the coach. The first leading case on this subject, Coldwell v. Gregory (5), is in the plaintiff's favour. There the bankrupt carried on business as a brickmaker in his own name, though the defendant was in partnership with him. Four days before the act of bankruptcy the partnership was dissolved, and the bricks shared, though they were allowed to remain on the premises. It was held that the defendant's interest in them was not in the reputed ownership of the bankrupt under the then Bankrupt Act (21 Jac. 1. c. 19. s. 11). It will be said that this case is overruled by Er parte Enderby (1). But that case may be distinguished, because there the partnership had been brought to an end by effluxion of time; and in Ex parte Chuck (6) this distinction is pointed out. It is true that the Court in that case decided in favour of the assignees; but its facts are different from those of the present case. There S. and S. were in partnership as brewers, and W. made them an advance, at the same time executing a deed which made all three partners. W.'s name never appeared to the world as a partner, and on the bankruptcy of S. & S. his interest in the partnership was held to be in their reputed ownership. There the apparent firm became bankrupt; but here there was no apparent partnership, and only a separate bankruptcy.

[MELLOR, J.-It is not easy to see how the plaintiff could have resumed possession before the act of bankruptcy.]

The hardship upon her will be great if she be deprived of property which ought to go in liquidation of the joint debts for which she is still liable. Her position was different from that of a mere secret part

(5) 1 Price, 119. (6) 8 Bing. 469.

ner, for she lived with her brother, the bankrupt, and was in possession of the stock.

[COCKBURN, C.J.- Her position must have appeared to the world as that of a servant or housekeeper.]

In Smith v. Watson (2), another case on which the defendants will rely, there was not the joint interest which appears to have existed here. The preamble of the old act (21 Jac. 1. c. 19.) shews that the object of the legislature was to prevent actual fraud. But at the present day a man obtains credit from his personal character and reputation, and not through the possession of furniture. Furthermore, it is submitted that the statute ought not to apply to a case of joint ownership, and that the bankrupt held his sister's moiety of the stock as a factor or trustee for her, in which case the statute would not apply -Whitfield v. Brand (7). In Doria and Macrae's Bankruptcy Practice, 411, it is said that there is no reputed ownership in the case of a dormant partner. Ex parte Wood (8) a partnership was dissolved by agreement, the stock-in-trade to belong to the continuing partner. Each of them separately became bankrupt, and it was held that the stock-in-trade was not in the reputed ownership of the firm at the date of the bankruptcy of the continuing partner.

In

Henry James, for the defendants.-Two questions arise in this case: First, does section 125. apply to the interest of a dormant partner? Secondly, were the goods in question in the order and disposition of the bankrupt with the consent of the true owner? The first point is concluded by authority. Coldwell v. Gregory (5) is, no doubt, in favour of the plaintiff; but it has been overruled. In Ex parte Dyster (9) Coldwell v. Gregory (5) was cited, when Lord Eldon said that he thought he should have no difficulty in persuading the Barons that their decision was at least unsatisfactory. And in Smith v. Watson (2) Bayley, J., when Coldwell v. Gregory (5) was referred to, said, "That case was

(7) 16 Mee. & W. 282; s. c. 16 Law J. Rep. (N.S.) Exch. 103.

(8) 1 De Gex, 134. (9) 2 Rose, 256.

considered by this Court in Ex parte Gilpin (i. e. Ex parte Enderby) (1), and we certified that a secret partner was within the statute." Best, J. adds, that in his opinion the decision in Coldwell v. Gregory (5) cannot be supported. In Ex parte Enderby (1), A., and B. were partners, the whole business being carried on in the name of A. The partners ship was dissolved, and A. was left in possession of the joint effects. It was held, that he must be taken to be the reputed owner of these effects.

[MELLOR, J.-That was the case of a mere stranger in possession. Here the case is different.]

So far as the book-debts are concerned, the distinction cannot be upheld. In Ex parte Chuck (6), where this circumstance in Ex parte Enderby (1) was referred to, the Court held that it was of no importance. In the case of trustees, the statute does not apply, because they are the only legal owners. The dicta in Hamilton v. Bell (4) are relied on by the plaintiff, where an extract from the judgment of Lord Redesdale in Joy v. Campbell (10) is approved of, his Lordship saying that to bring a case within the statute, the bankrupt must, unconscientiously, be allowed to retain possession of the goods. But this expression does not refer to the intentions of the real owner; if the bankrupt has been suffered to hold himself out as the sole possessor of goods, the act declares that this is unconscientious, and the intention with which the possession was suffered ought not to be left to the jury. Here there was a complete ostensible possession, and only a domestic arrangement between the bankrupt and his sister unknown to the rest of the world.

Macnamara, in reply.-In cases under this statute the real owner should be distinct from the reputed owner, and should be able to take entire possession of his property. Here the plaintiff has done all in her power to retain possession before the act of bankruptcy. She could not have brought an action to recover possession of her share, but was in the same position as the assignee of a debt who has taken every possible step to obtain his property

(10) 1 Sch. & Lef. 328.

Belcher v. Bellamy (11). In Ex parte Enderby (1) the retiring partner was wrong in allowing the bankrupt to retain undivided possession of the stock; . and in Smith v. Watson (2) stress is laid upon the secrecy of the partnership. The bankrupt may be considered either as a factor, when the goods would be protected-Mace v. Cadell (12), or as a trustee for his sister, in which case also the statute would not apply-The Earl of Shaftesbury v. Russell (13).—He also cited Load v. Green (14) per Parke, B., and Whitfield v. Brand (7).

COCKBURN, C.J.-I think that in this case, having regard to the state of the authorities, our judgment must be in favour of the defendants. I feel that this is really a case of difficulty; that there is much to be urged, not only in the way of argument but also in the way of authority, on either side. On the one hand, it may fairly be said, that it is a case of great hardship that the goods of a dormant partner, which may be required for the discharge of partnership debts, should be available to the creditors of the ostensible partner, in the event of his separate bankruptcy. On the other hand, it may be forcibly contended, that the intention of the statute was to prevent a man from acquiring false credit by the apparent and ostensible possession of property which in point of fact, either wholly or partially, is not his. Whether this possession arises from a contract between the ostensible and the dormant partner, or from circumstances unconnected with the partnership, it comes, I apprehend, equally within the mischief against which the statute was intended to be directed. There is much to be said on either side, and the question is one with respect to which, if it were not for the authorities by which I think we are bound, I for one should require time to consider the judgment which we ought to give. The first case on which a question like the present one arose is that of Coldwell v. Gregory (5), a case in

which the Court of Exchequer held that, under circumstances precisely similar to those before us, goods left in the possession of an ostensible partner, in which the dormant partner was jointly interested, were not in the possession of the bankrupt as reputed owner, with the consent of the true owner, so as to be within the provisions of the Bankrupt Act. That decision, however, did not find favour in the eyes of the great authority in these matters, Lord Eldon, who evidently entertained serious doubts as to its propriety, and the result of those doubts is found, not in the particular case in which he expresses them-Ex parte Dyster (9), but in another, where the same question arose, a case which was sent to this Court for its opinion, in the shape of a report, as to what was the law with reference to these same facts. It was pointed out by the learned counsel who on that occasion argued for the plaintiff, afterwards Mr. Baron Parke and Lord Wensleydale, that the case in the Exchequer was directly in point, and that the Court could not report in the defendant's favour without overruling it. Nevertheless, this Court, after an elaborate argument, did report that the property was in the possession of the bankrupt as reputed owner, with the consent of the true owner, so as to be within the Bankrupt Act. And in a case which is to be found in the same volume of Barnewall & Cresswell's Reports-Smith v. Watson (2), -the attention of the Court being directed to the previous case of Ex parte Enderby (1), or, as it was called, Ex parte Gilpin; Mr. Justice Bayley says, "That case was considered by this Court in Ex parte Gilpin, and we certified that a secret partner was within the statute." Mr. Justice Best follows, and says, "I could not have signed the certificate sent in that case, unless I had satisfied myself that the decision in Coldwell v. Gregory (5) cannot be supported." I therefore think it is quite clear from those two cases that this Court, by the report which it made in Ex parte Enderby (1), intentionally overruled the decision in Coldwell v. Gregory (5); and that in the subsequent case of Smith v. Watson (2), they abide by the opinion which they had previously expressed. That being so, we must take it that Coldwell v. Gregory (5) is

not the law; in other words, that property left by the secret partner in the possession of the ostensible partner is property within the statute, that is, property in the possession of the bankrupt as reputed owner with the consent of the true owner. Without, therefore, saying what would have been my own opinion, if the matter had not been res judicata, I think we are bound by the decision of this Court on precisely the same point, and that the authority is conclusive. I sincerely hope that, considering the importance of the question, it will be taken to a Court of Error, which I think is the only tribunal that can satisfactorily deal with it.

MELLOR, J.-I also feel that we are bound by the decision to which my Lord has referred, in this Court; although I confess that I think the tendency of modern decisions has been rather in the other direction, when I consider that the judgment and opinion of Lord Redesdale in Joy v. Campbell (10) is cited on several occasions with entire approbation by Mr. Baron Parke, and in one of the cases referred to-Hamilton v. Bell (4)-by Lord Chief Baron Pollock and Mr. Baron Alderson, each in turn stating their opinion that the true rule is there expressed. If I had found that there had been any subsequent decisions upon this particular state of circumstances, I, of course, should have felt at liberty to have followed them, thinking that they had shaken the decisions in this Court. But in the absence of such decisions, we are bound to adopt the rule laid down in the earlier cases, and to hold that the property of a secret partner is in the order and disposition of the ostensible partner, if bankrupt, by consent of the true owner. should be inclined to adopt the suggestion made by Mr. Macnamara in his argument, that where the possession is not voluntary, that is to say, where the consent of the person called the true owner is not voluntary, but where the possession is a possession which the apparent owner has a right to have, because of his own interest in the goods in question, that such a possession was not intended to be brought within the provisions of this penal clause. For the clause is penal in this sense, that it applies to a person who improperly and unconscientiously, in the sense in which the

I

latter expression is used by Lord Redesdale, and approved by Mr. Baron Parke, that is, without any special reason but his own voluntary act, leaves goods in the possession of a trader; but it must be a voluntary act on the part of the owner, or alleged owner, by which the goods are left in the possession of the bankrupt. That cannot be said to have been the case here, because the plaintiff was a partner. The purchase was made jointly, and entirely for the purpose of carrying on the partnership business, and was entirely consistent with the provisions of the partnership. I think that I am bound to give my judgment, with the other members of the Court, in favour of the defendants.

SHEE, J.-I have little to add to what has fallen from my Lord and my Brother Mellor; but I will briefly call attention to this fact, that the law which we hold to be established by the decisions in Ex parte Enderby (1) and Smith v. Watson (2) has for some time been considered settled law in Bankruptcy; for I find in the third edition of Shelford on Bankruptcy, p. 267, under the head of Reputed Ownership' (citing for authority these two cases), this passage-"It appears to be settled that in the case of a secret partnership, all the property and effects, as well as the debts due to the concern, must be deemed to be in the order and disposition of the ostensible partner, and pass to his assignees."

LUSH, J.—I have come to the same conclusion, though I must acknowledge that it has been under pressure from the later authorities in this Court. If I had now to put a construction upon this clause for the first time, I should have thought that one of the necessary conditions, in order to bring a case within it would be, that there should be a true owner of the goods, as distinguished from the apparent owner; and such an owner as had the power to object to the possession of the apparent owner, and to resume the possession of the goods himself; and, that it could not apply to the case of a person who held the goods in his own right, and who could not be deprived of the possession by the other apparent owner. The cases, however, have given a much wider interpretation to this clause, and sitting here, I do not think that we can overrule authorities which have stood for

Quo warranto calling upon the defendant to shew by what authority he exercised the office of member of the Local Board of Health for the district of Darlington, in the county of Durham.

Plea-That since the passing of the Darlington Local Board Act, 1854, one-third of the members of the local board of health go out of office annually on the 26th of September, and the day of election to supply the vacancies of the members of the local board of health annually going out of office had been and was the 26th of September in each year, and that on that day six members, being one-third of the members of the local board of health, went out of office, and an election of six members in the place of the six so going out of office was there held on the 26th of September, and the chairman of the local board, to wit, one Joseph Pease, then and there, as the returning officer, according to the provisions of the Public Health Act, 1848 (1), held

(1) By the Public Health Act, 1848 (11 & 12 Vict. c. 63), section 21, "At every election by owners of property and rate-payers under this act the chairman of the local board of health, or, in case of the first election, such person as shall be appointed by order of Her Majesty in Council, or by Provisional Order of the General Board of Health (as the case