a State, and to a considerable extent, though not altogether, lawyers and magistrates also, have not to concern themselves with thinking what those foundations are. Their business is to learn and know, so far as needful for their affairs, what rules the State does undertake to enforce and administer, whatever the real or professed reasons for those rules may be. Moreover criminal law, which is eminently imperative, is that branch of law which appeals most to the popular imagination, and fills the largest place in popular notions of legal justice. Again the unexampled activity of the legislative power in modern States has largely increased the sphere of express enactment. All these causes have made it possible and even plausible to regard law not only as being embodied in the commands of a political sovereign, but as consisting of such commands and being nothing else. They have not altered the fundamental facts of human society; and the merely imperative theory of legal institutions remains as one-sided and unphilosophical as it was before. Law is enforced by the State because it is law; it is not law merely because the State enforces it. But the further pursuit of this subject seems to belong to the philosophy of Politics rather than of Law.

FREDERICK POLLOCK.

IN

AFTER-ACQUIRED PROPERTY IN BANKRUPTCY.

N the 54th section of the Bankruptcy Act, 1883, it is written, Immediately on a debtor being adjudged bankrupt the property of the bankrupt shall vest in the trustee.' By section 44 of the same statute it is laid down that the property of the bankrupt comprises inter alia all such property as may belong to or be vested in the bankrupt at the commencement of the bankruptcy or may be acquired by or devolve on him before his discharge;" and according to section 168, Property includes money, goods, things in action, land, and every description of property whether real or personal, and whether situate in England or elsewhere; also obligations, easements, and every description of estate, interest, and profit present or future, vested or contingent, arising out of or incident to property as above defined.' The wording is in effect only a repetition of the provisions on the subject contained in the Bankruptcy Act, 1869.

If read strictly the enactment declares that an undischarged bankrupt's future property-property which he may have no shadow of right to or interest in for many years to come-is vested in the trustee long before he acquires it, or, by way of example, if he (say ten years after the commencement of the bankruptcy) purchases or acquires by gift, descent, or otherwise a house with ancient lights, he having no right, title, or interest therein until the date of such purchase or acquisition, his interest in the easement relating to such lights was vested in the trustee at the date of such trustee's appointment ten years previously.

Such a proposition sounds absurd, but nevertheless by the light of the history of these clauses an intelligible and reasonable interpretation can be given to them.

Under the Bankruptcy law as it existed in the last century and thence up to 6 Geo. IV, when a man became bankrupt the Commissioners in Bankruptcy, by virtue of statutory powers, assigned by deed to the assignees the personal estate of the bankrupt, and by another deed indented and enrolled conveyed to the assignees his legal estate. The assignment of the personal estate was held to pass to the assignees all that the bankrupt was then possessed of and a right to claim, take, and recover all that he might at any time afterwards during the bankruptcy become

possessed of, with certain exceptions, e. g. his future earnings. That it did not give to the assignees the sole and absolute title to such after-acquired personal property was fully recognized. In Ashley v. Kell, 2 Strange 1207, it was held that notwithstanding the deed of assignment under which the future effects of a bankrupt, against whom two commissions had issued, were liable to be seized for the benefit of creditors, yet the bankrupt had in the meantime such a property in them as enabled him to transact and sell to a bona fide purchaser. By several decisions, principally between the years 1790 and 1820, it was conclusively established that an undischarged bankrupt might recover goods, sue for money, for damages for breach of contract, and even damages for trespass to lands, where the questions related to after-acquired property, if the assignees did not intervene.

In order to justify their decisions the Judges based them at first on the possibility of the subject-matter of the actions being the produce of or being blended with the work and labour of the bankrupt, to which the assignees could lay no claim; but they subsequently took broader grounds, and laid down the proposition that, as to personal property (real property not being then the subject of decision for reasons that will be afterwards stated), the bankrupt had a special property therein which justified him in proceeding in his own name; and that though when the assignees laid a claim thereto he was ousted from his rights, yet until they did so it did not lie in the mouth of any other person to plead the bankruptcy. The grounds for the decisions were stated in Webb v. Fox, 7 T. R. 391, 4 R. R. 472 to be 'sound policy and convenience to prevent a scramble for goods if the assignee does not choose to dispute the question.'

In Fowler v. Down, 1 B. & P. 44, the Court went a trifle further in defining the rights of the bankrupt. An order for the delivery of goods in the hands of a third person had been given to an uncertificated bankrupt, in satisfaction of a debt which had accrued subsequently to his bankruptcy. For the recovery of such goods he brought his action of trover, in defence to which the bankruptcy was pleaded. In giving judgment in favour of the bankrupt Eyre C.J. said, 'This narrow ground that the bankrupt has a right against everybody but his assignees, which is maintained by the authorities, is sufficient to support this verdict. This is not the case of special property, but is entire property, though defeasible or, so to speak, liable to be divested;' and Buller J. said, 'He (the bankrupt) has a defeasible title which none but the assignees can defeat. He is like an alien, who may purchase lands and maintain an action if the Crown does not interpose.'

In these old cases it does not seem to have been suggested by the Judges that notice of the bankruptcy was any answer to the rights of the bankrupt. On the contrary, the existence of the bankruptcy was pleaded as a defence, but without success.

I venture to suggest that the decision in Fowler v. Down was based on the right grounds, that an assignment of that which has no existence at the time operates at the best only as the creation of an equitable right in the assignee to the property purported to be assigned when it shall be ascertained, and that the true effect of the assignment of the Commissioners, so far as it was supposed to include after-acquired property, was only to give to the assignees a right to reduce the same into possession when it came into existence, leaving however the entire property in the bankrupt until such right was claimed.

I have stated that the position of after-acquired real estate was not questioned at the date of these old decisions in the same way as the right to personal estate was. The reason was this. Such future real estate was not held to have passed under the original deed relating to real property, but it had to be conveyed by a new deed to the assignees after the bankrupt had acquired a title to it. As stated in Carleton v. Leighton, 3 Mer. 672, Until the creditors chose to take the benefit of this property by such assignment it remained in the bankrupt both in Law and in Equity.'

So the law stood until the statute 6 Geo. IV, c. 16 was passed, repealing prior Acts of Parliament on the subject. By this statute, for the purpose of avoiding the trouble of getting a fresh assignment whenever real property was acquired by an undischarged bankrupt, and of giving the assignees a similar right or title thereto to that which they previously had in relation to after-acquired personal property, the Commissioners were directed to assign to the assignees all the present and future personal estate of the bankrupt, and also by deed indented and enrolled to convey to such assignees all lands and tenements except copyholds (for which special provisions were made) 'to which any bankrupt is entitled,' and all such lands, &c. ' as he shall purchase or shall descend, be devised, revert to, or come to such bankrupt before he shall have obtained his certificate;' and it was also provided that under certain circumstances a certificate of conformity might be given, but that if he should become bankrupt a second time and should obtain another certificate, then unless his estate should produce 158. in the pound for his creditors in the second bankruptcy, such second certificate should only protect his person, and that his future estate and effects should vest in his assignees, who should be entitled to seize the same.

It will be noticed that, except for the distinction in the modes of conveyance of real and personal property under this Act, there was nothing to differentiate the one from the other, and that the right to future estates in realty passed to the trustees as fully as after-acquired personalty. And also that although for the purpose of specifying the conveyances there are distinct and several references to real and personal properties in the earlier provisions, they are dealt with conjointly in the later one in which the word 'vest'— as I believe for the first time-appears in relation to the subject. The conclusion being, as I submit, that the Legislature did not intend to put any real difference between the right of the assignees to these kinds of property.

In the case of ex parte Butler, re Bakewell, 2 M. D. & D. 731, an assignee under a second commission, where the bankrupt had obtained his certificate but 158. in the pound had not been paid to his creditors, petitioned that a subsequent fiat might be annulled and the assignee appointed thereunder ordered to account for property received by him. The question no doubt did not affect the actual dealings by the bankrupt with his property, but it did affect the rights of creditors and was dealt with on the principles enunciated in Troughton v. Gitley, Ambler 630, which was decided on the ground that if a man, having a lien, stands by and lets another make a new security, he shall be postponed; but it is useful in showing that the Court of Bankruptcy put no difference between real and personal property, and moreover is ad rem if it be admitted that a purchaser for value stands in at least as good. a position as an ordinary creditor. In that case the bankrupt had become possessed of real property as well as personal. In giving judgment Sir John Cross said that the same principles applied to real property as to personal, and he decided that the whole property real and personal then existing, which the bankrupt had acquired since his second bankruptcy, was applicable in the first place towards the payment of the debts in the third bankruptcy.

A case of considerable importance in relation to this subject also decided under the statute of Geo. IV was Herbert v. Sayer, 5 Q. B. 965, where a man who was bankrupt for the second time had obtained his certificate, but his estate had not realized 158. in the pound. He sued on a bill of exchange endorsed to him since the date of his certificate, and it was objected that the property was in the assignees in his second bankruptcy. The judgment of the Exchequer Chamber reversing the decision of the Court below was in his favour. It was laid down that whatever right an uncertificated bankrupt had before the statute of Geo. IV in after acquired