arrest, and the bailing being considered as a mere form to turn the bankrupt over from one custody to another. Although the trader is, during two months, in a progressive course of committing an act of bankruptcy3, yet the act of bankruptcy is not complete until the expiration of the two months, and consequently a commission cannot regularly issue until that time; for, in order to obtain it, there must be an affidavit that the party has committed an act of bankruptcy. The property of the bankrupt vests in the assignees by relation either from the time of the arrest or the going to prison, as the case may be. 13. “Or being arrested for the sum of 1001. or more of just "debt, shall, after such arrest, escape out of prison.' A. having been arrested for debt in Kent on the 31st of March', was, on the 6th of May following, brought up by an kabeas corpus, in order to be turned over; on the road to the judges' chambers, A. was permitted to call at an house in the city of London, and was carried thence to a judge's chamber to be bailed, and accordingly was bailed, but instantly there surrendered by his bail in discharge of themselves, and thereupon committed to the King's Bench prison, where he lay above two months. It was adjudged, that this passing through another county, by the permission of the sheriff, was not an escape within the meaning of this act. IV. Of Property in the Possession of the Bankrupt as reputed Owner. By stat. 21 Jac. 1. c. 19. § 11. reciting, " that it often falls out that many persons, before they become bankrupts, convey their goods to other men upon good consideration, yet still keep the same, and are reputed the owners thereof, and dispose of the same as their own; it is enacted, "that if any person, at such time as he shall become bankrupt, shall, by the consent and permission of the true owner and proprietary, have in his possession, order, and disposition, any goods or chattels, whereof he shall be reputed owner, and 66 66 Gordon v. Wilkinson, 8 T. R. 507. i Rose v. Green, 1 Burr. 437. "take upon him the sale, alteration, or disposition, as owner, "the commissioners shall have power to dispose and self "the same for the benefit of the creditors seeking relief un"der the commission, as fully as any other part of the estate "of the bankrupt." It was formerly a question whether the preamble did not restrain the enacting part of this section, and confine its operation to property, originally belonging to the bankrupt, and remaining in his possession after a conveyance of it to another; but it was adjudged in Mace v. Cadell', Cowp. 232. and post p. , that it did not, and that it extended to the goods of other persons which are permitted to remain in the possession of the bankrupt, and whereof he may take upon himself the sale, alteration, or disposition as owner. The general view of the provision now under consideration was to prevent traders from gaining a delusive credit, from a false appearance of their circumstances, to the misleading and deceit of those who should trade with them. Choses in action fall within the description of goods and chattels mentioned in this clause". Mortgages or sales upon condition of goods and chattels are within the statute, as well as absolute sales; and a mortgage by one partner to another of a moiety of stock in trade is not distinguishable from a mortgage to a stranger, if the mortgagor is suffered to continue in possession as visible partner. The principal difficulty in deciding questions on this statute lies in ascertaining, whether the bankrupt is reputed owner or not. When this fact is settled, the application of the statute is easy; for from the reputed ownership false credit arises; from that false credit arisés the mischief, and to that mischief the remedy of the statute applies. As it has been truly observed, that these questions have much more of fact in them than law" (24), I have ventured k Lord Hardwicke, in Ryal v. Rolle, 1 Atk. 182. was of opinion that the enacting part of the clause was restrained by the preamble. 1 Horn v. Baker, 9 East, 239. S. P. m Ryal v. Rolle, 1 Vezey, 348. 1 Atk. 165. S. C. 1 Wils. 260. S. C. n Per Buller J. in Walker v. Burnell, Doug. 319. recognized by Lawrence J. in Horn v. Baker, 48 G. 3. B. R. 9 East, 241. (24) Hence, in cases of this kind, it seems proper to leave it to the jury to say, whether under the circumstances, the bankrupt had the reputed ownership of the goods at the time. See the remark of Lawrence J. 9 East, 241. to state the decisions at considerable length; lest I should mislead the reader, arranging them under two divisions; first, cases within the statute; and, secondly, cases not within the statute. 1. Cases within the Statute, 21 Jac. 1. c. 19.-A trader being indebted to J. S.°, mortgaged to him certain leasehold estates and some hoys, but did not deliver possession of them, and afterwards the trader became a bankrupt. J. S. brought an ejectment and got possession of the leasehold estate, but the assignees took possession of the hoys. The leasehold not being sufficient to pay J. S. his principal and interest, he filed a bill to foreclose and to compel the assignees to redeem the hoys, or that they might be sold to pay his demands. The assignees admitting the leasehold not sufficient to pay J. S. insisted on their right to the hoys uuder this clause of the statute, the bankrupt having the possession, and acting as owner thereof until he was declared a bankrupt. Lord Talbot decreed, that the plaintiff should be at liberty to come in under the commission for his deficiency; dismissing the bill so far as it required account of the profits of the hoys, which were ordered to be sold for the benefit of the creditors in general. N. In Hall v. Gurney, Co. B. L. 5th edit. p. 342. Lord Mansfield C. J. said, that in this case of Stevens v. Sole, there was a grand bill of sale which was delivered to the mortgagee. So where the owner of nineteen two-and-thirtieth parts of a ship, then lying at Yarmouth, conveyed an interest in the same to the defendant, by way of mortgage, and delivered to him the grand bill of sale, but continued in the management of the ship, together with the other part-owners, and acted as visible part-owner, from the time of the conveyance until he became a bankrupt; Lord Mansfield, on the authority of Stevens v. Sole, held that the defendant was not entitled to retain against the assignees. See ex parte Standgroom, Co. B. L. 1 Ves. jun. 163. and post. So where A. a brewer, in partnership with B., mortgaged to C. in trust for B. his, viz. A.'s moiety of the utensils, stock in trade, debts, profits, &c. for securing a sum of money leut to him by B., but continued in possession of the stock, &c.; and received the debts as if in partnership with B., and afterwards became a bankrupt; it was holden by Lord Hardwicke Ch. assisted by Burnet J., Parker C. B., P Stephens v. Sole, cited 1 Atk. 270. Hall v. Gurney, Co. B. L. 5th edit. p. 342, q Ryal v. Rolle, 1 Vezey, 349. 1 Atk. 165. 1 Wils. g50. and Lee C. J., 1st. On the authority of the preceding case, of Stevens v. Sole, that a conveyance of goods and chattels, by way of mortgage, or with condition of redemption, was within the statute, and that the mortgagee or vendee upon condition was "true owner and proprietor," within the meaning of that statute. 2dly, That "goods and chattels" included debts; and in this case notice of the assignment of the debts to the partner not having been given, the assignees of the bankrupt were entitled to dispose of them for the benefit of the creditors in general. 3dly, That the mortgage to C. in trust for B. the partner, was not to be distinguished from a mortgage to a stranger, under the circumstance of this case, the trustee not having interfered. That if it had been intended to take the case out of the statute, B. when he became entitled to A.'s moiety, should have had the sole and not a joint possession only; that A. having continued in possession after the conveyance as visible partner, and received debts, &c. by the permission of B., bad the order and disposition of the goods and chattels, and was one of the reputed owners as much as B. Another point was made', whether B., by the loan to A. his partner, did not gain a special lien on A.'s moiety of the partnership effects; but it was determined that he had not any such lien, there not being any authority or precedent for it after a bankruptcy; and that it was a different consideration what a court of equity might do between the parties themselves, while both remained capable of transacting for themselves. It was agreed by the court, in the preceding case, that mortgages of lands and fixtures were not affected by the statute; and the same doctrine was laid down in Horn v. Baker, 9 East, 237. as to vats and stills belonging to a distillery, and which were fixed to the freehold. In trover for a dier's plant', it appeared that the plaintiff had sold the plant to B. for which he gave the plaintiff two promissory notes, one payable in one year, and the other in two years from the time of the sale. At the expiration of the first year, B. finding it inconvenient to pay the note then due, by indenture agreed to assign and deliver the plant to plaintiff, in consideration of his delivering up the notes; but it was stipulated in the deed that A. should let the plant to B. for a term of years at a certain rent. B. covenanted to pay the rent quarterly, to keep the plant in repair, and not to assign it without the consent of the plaintiff. The deed r1 Vezey, 373. s Bryson v. Wylie, B. R. H. 23 G. 3. 1 Bos. & Pul. 63. m. contained a proviso that B. should deliver the plant, and that the plaintiff might take possession of the sanie on failure in the payment of the rent. There was a memorandum, also, that B. had put the plaintiff into possession by the delivery of one winch in the name of the whole. Afterwards B. became a bankrupt, and the defendant being chosen assignee, took possession of the plant as part of the effects of B. The court were of opinion, that this case was within the statute, and Lord Mansfield said that he had hot any doubt that this was a new experiment to defeat the bankrupt laws. The law had said, that a trader could not mortgage his effects and at the same time keep possession. What was the case here? the bankrupt sold and kept possession, and paid interest for the money; if this contrivance were suffered, it would open a door to avoid the statutes, and, therefore, it ought not to be allowed to prevail. So where B. kept a coffee-house", and a creditor, after taking in execution all the household furniture and other articles belonging to the coffee-house, let them by deed to B. for a term of years, who covenanted not to remove them without the creditor's consent; B. having continued in possession under this deed for several years, until the time of his bankruptcy, the assignees were holden to be entitled to the property under this statute, the bankrupt having had such a possession as necessarily created a reputation of ownership. The bankrupt being the reputed owner and appearing to have the order and disposition of the goods, the court considered him as having taken upon himself the sale, order, and disposition, within the meaning of this statute, which terms they observed were only incidental to reputed ownership. Trover for goods. It appeared that the defendants were bankers, to whom B., a mercer, resident in Cumberland, had given a warrant of attorney to secure certain advances which they had made to him. Judgment having been entered, a writ of fi. fa. was sued out thereon, and a warrant, directed, on 7th May, to two of B.'s shopmen, there being no bound bailiffs in Cumberland. The shopmen were desired to take possession of all B.'s stock in trade under it. Having got the warrant they remained in the shop till night, when they locked it and carried away the key. But on the Monday morning they again opened it; and, although B. did not interfere, business was carried on apparently as usual. On the evening of this day, B, committed an act of bankruptcy. A |