assignees of the term, unless they have done some act which unequivocally indicates to the lessor that they have elected to take the benefit of the lease (r). But if they have once done some act to indicate their election, e.g, continuing a trade for the benefit of creditors, they cannot subsequently decline (s); and they must make their election within a reasonable time, which is a question for the jury (t). But now by s. 131 of 24 & 25 Vict. c. 134,-" In every case of a lease or an agreement for a lease it shall be lawful for the assignees to elect to take the same and the benefit thereof, and to keep possession of the premises up to some quarter or half-yearly day, on which rent is made payable by the same lease or agreement, such day not being more than six months from the adjudication of bankruptcy, and upon such day to decline such lease or agreement for a lease."

If the assignees decline to accept a lease, under which the bankrupt is entitled "at the expiration or other sooner determination of the term," to take away the off-going crop, the assignees may, on payment of the rent, take it away also (u). So if the bankrupt is bound to leave straw, &c., on the farm, the assignees must leave it (x). (See post, p. 318.) By the 12 & 13 Vict. c. 106, s. 144, no assignee of any bankrupt or any purchaser from such assignee may dispose of any hay, straw, or other produce of the land, or any manure or dressing intended for the land, and being thereon, otherwise than the bankrupt himself might have done; and by the 14 & 15 Vict. c. 25, s. 3, the tenant of a farm or lands may remove any buildings, machinery, &c., that he has erected with the consent of the landlord, and not in pursuance of any obligation, "either for agricultural purposes or for the purposes of trade and agriculture," if the landlord, after notice, will not buy them.

VII. Of Property in the Possession of the Bankrupt as
reputed Owner.

By 12 & 13 Vict. c. 106, s. 125-(which is a re-enactment of 6 Geo. IV. c. 16, s. 72)-" 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 (y) disposition, any goods or

(r) See the cases on this subject, post, pp. 520, 537; and Page v. Godden, 2 Sta. 309.

(8) Clark v. Hume, R. & M. 207; Broome v. Robinson, 7 East, 339, acc.

(t) Mackley v. Pattenden, 30 L. J. Q. B. 225.

(u) Exp. Maundrell, Buck, 83; Stansfeld v. Mayor &c. of Portsmouth, 4 C. B. N. S. 120, acc.

(x) Exp. Whittington, Buck, 87.

(y) To be read "and," per Pollock, C. B., 10 Exch. 550. See 3 Taunt. 490.

chattels (2), 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, &c. (8 & 9 Vict, c. 89), or any of the acts therein mentioned (a); and by 17 and 18 Vict. c. 104, s. 72, no registered mortgage of any ship (b) or of any share therein, shall be affected by any act of bankruptcy of the mortgagor after the registration of the mortgage, although he may have the possession, or be the reputed owner of the ship or share." See post, tit. "Shipping."

"The meaning of this statute," says Parke, B. (c), " is well explained by Lord Redesdale, in Joy v. Campbell (d), in construing the analogous Irish Act. His lordship says, that 'it refers to chattels where the possession, order and disposition is in a person who is not the owner, to whom they do not properly belong, who ought not to have them, but whom the owner permits unconscientiously, as the act supposes, to have such order and disposition. The object was to prevent deceit by a trader, from the visible possession of property to which he was not entitled; but in the construction of the act the nature of the possession has always been considered, and the words have been considered to mean, possession of the goods of another, with the consent of the true owner.'" The effect of the section is, that goods in the order and disposition of the bankrupt do not pass to his assignees under the 141st section of the act, as they would have done by the general assignment under the old law; but in order to deal with such property, the Court of Bankruptcy must make an order under this section to sell and dispose of it (e). Such order may be obtained ex parte (f); but it is not conclusive on the true owner (g); when obtained (h), it relates back to the act of bankruptcy, so that the assignees, defendants in trover, may, under a plea of not possessed, rely on the order, though made after action (i). The order must specify the particular goods to be

(2) This includes choses in action. Post, p. 287.

(a) The 8 & 9 Vict. c. 89, was repealed by 17 & 18 Vict. c. 120. The present act is 17 & 18 Vict. c. 104, and 18 & 19 Vict. c. 91.

(b) A mortgage of an unfinished ship executed before the ship has been registered by the owner (the mortgagor), but which mortgage is registered afterwards, is valid. Bell v. Bank of London, 3 H. & N. 730.

(c) Load v. Green, 15 M. & W. 216. See Exp. Barclay, 5 De G. M. & G., per Lord Cranworth, C.

(d) 1 Sch. & L. 336.

(e) Heslop v. Baker, 6 Exch. 740. (f) Exp. Wood, 4 De G. M. & G. 861. (g) Graham v. Furber, 14 C. B. 134. (h) See Re Atkinson, 1 Fonb. B. R. 246.

(i) Heslop v. Baker, 8 Exch. 411.

sold (k) but it is not essential that the name of the supposed true owner should be referred to (7).

"At the time he becomes bankrupt."-That is, at the time of the act of bankruptcy (m); and if the goods are taken out of the bankrupt's possession before (n), or do not come into his hands till after (0), the act of bankruptcy, they will not be within the section. With regard to choses in actions Sir W. Grant, M. R., in Jones v. Gibbons, 9 Ves. 410, says, "In order completely to divest the bankrupt of debts, he must have done everything that is equivalent to a delivery of chattels personal, that is, of moveable goods; that which is equivalent to delivery of moveables is, in the case of a debt, an assignment and delivery of the security, if any, and notice to the debtor of the assignment " (p).

"By the consent and permission of the true owner."—Where therefore A., a trader and an officer in the East India Company's service, assigned his privilege of shipping goods from the East Indies to England, to B., for a valuable consideration; and in order to evade the by-laws of the East India Company, which prohibited such assignment, the goods were shipped, entered, warehoused and sold by the company in A.'s name, and the proceeds carried to his account: but before A. received those proceeds from the company, he became bankrupt; it was held, that his assignees were entitled to recover the amount in an action for money had and received against the company (q). But if the true owner before the act of bankruptcy demands possession of the bankrupt, and is refused, the goods will not be subject to an order under the section (r). So where notice of the true owner's title is given before the act of bankruptcy to persons to whom the bankrupt has let out the goods (s).

And the rule is the same in case of choses in action, debts, &c. which have been assigned by the bankrupt before the bankruptcy, and in which case, if the real owner (the assignee of the debt) takes all proper steps to obtain possession of the debt, it does not remain in the order and disposition of the

(k) Quartermaine v. Bittlestone, 13 C. B. 133.

(1) Freshney v. Carrick, 1 H. & N. 653. See Heslop v. Baker, 8 Exch. 411.

(m) Fawcett v. Fearne, 6 Q. B. 20. (n) Storer v. Hunter, 3 B. & C. 380; Exp. Watkins, 1 Dea. 296; Jones v. Dwyer, 15 East, 21; Arbouin v. Williams, R. & M. 72. But see Darby v. Smith, 8 T. R. 82.

(0) Lyon v. Weldon, 2 Bingh. 334. (P) Whether in the case of goods, of which actual possession cannot be taken, e. g. goods at sea, any notice of an assign

bankrupt with the consent of the true owner within the section. H., residing in Australia, was indebted to A. On the 8th January, 1844, A., bona fide and for valuable consideration, assigned the debt to W., who, on the 22nd January, joined A. in a letter notifying the assignment to H., and requiring him to pay the debt to W. This letter was posted on the 1st February, and could not have reached H. in Australia till long after the 10th February, on which day a fiat in bankruptcy issued against A. On the 29th January, H. remitted by letter 501., which was received after the fiat and handed to W. It was held, that the debt did not remain in the order and disposition of the bankrupt by the consent of the true owner, as W. had taken every possible step to obtain possession of it (t). There are numerous decisions in the books as to the sufficiency of notice to prevent the operation of the section in the case of assignment of policies and other choses in action (u). "Knowledge" (by the debtor) "is enough, from whatever quarter obtained, and a formal notice is not necessary," per Patteson, J., in Tibbits v. George, 5 A. & E. 111. The true rule appears to be that where there is nothing beyond the simple act of assignment, the jury may be properly directed to find that there has been no change of ownership, but that where there are other facts tending to show notice to, or knowledge by, the debtor, they should be told to say upon the whole of the evidence who was the reputed owner of the debt in question. Edwards v. Scott, 1 M. & G. 962.

From the above considerations it will follow that the section has no application to the case of a bankrupt in possession of his own property. In order to bring a case within it, there must be a real owner distinct from an apparent owner, and the real owner must consent to the apparent ownership as such (x). A vendor, a warehouseman, sold wines, then in his warehouse, for which a bill, accepted by the vendee, at three months, was given, the vendor putting into the hands of the vendee a note, acknowledging that he held the wines, subject to his order, rent free. The acceptance was dishonoured, and amount not paid. Afterwards, the vendee became bankrupt, the wines still remaining in the vendor's warehouse. It was held, that the section did not apply; for it referred to cases where the bankrupt shall, "by the consent of the true owner," have goods in his possession; here the bankrupt, if he had possession, was himself the true owner, under the contract of sale (y). Where, by agreement between B. and the

(t) Belcher v. Bellamy, 2 Exch. 303. See Re Brewster, 4 De G. M. & G. 866; Exp. Kelsall, De G. 352.

(u) See Belcher v. Campbell, 8 Q. B. 1; Gale v. Lewis, 9 Q. B. 730, and cases quoted; in equity, Bartlett v. Bartlett, 3 Sm. & G. 533, S. C., on app., 1 De G. & J. 127; Re Barr's Trusts, 4 K. & J.

219; Exp. Arkwright, 3 M. D. & De G.

129.

(x) Per Parke, B., in Load v. Green, 15 M. & W. 233; per Lord Cranworth, C., in Re Barclay, 5 De G. M. & G. 415. See Exp. Graves, 25 L. J. Bank. 53.

(y) Townley v. Crump, 4 A. & E. 58.

defendant, B. agreed on payment to him of a certain sum to convey to the defendant a dwelling-house, and to deliver possession of all the household furniture and stock, and that, after formal possession delivered to the defendant, B. should be allowed to remain in possession for three months without paying rent; which agreement was notorious in the neighbourhood (2), and the money was paid by the defendant, and a formal delivery made to him, and B. afterwards left in possession according to the agreement, and B. became a bankrupt whilst he so remained in possession, and before the expiration of the three months; held, that this was not within the statute, since, during the three months, the bankrupt was in of his own right, as owner in pursuance of the agreement, and not by permission of the true owner (a). And where A. bought goods with the fraudulent intention of never paying for them, and kept them until the time of his bankruptcy, it was held, that they were not in his possession by the consent of the true owner, within the section, for that A. was the real owner, subject to the right of the vendors to disaffirm the contract on the ground of fraud (b). No consent of the true owner can be implied where such owner is ignorant of the existence of the property, or of his own right to it (c).

"Any goods or chattels."-The statute applies only to goods and chattels, and, consequently, does not affect fixtures, whether trade fixtures or others (d). Thus it was held in Horn v. Baker, 9 East, 215, that vats and stills belonging to a distillery, and which were fixed to the freehold, were not affected by the statute, and the same doctrine was laid down in Clarke v. Crownshaw, 3 B. & Ad. 804, as to the machinery and things affixed to the freehold of a mill and iron forge: in Coombs v. Beaumont, 5 B. and Ad. 72, as to a steam-engine in a colliery; and in Exp. Lloyd, 1 Mont. & Ayr, 494, as to a steam-engine, &c., erected for the purposes of trade and fixed to the freehold, in the case of an equitable mortgage.

Choses in action (e), as debts (f) (except mortgage debts (g)), bills of exchange (h), policies of assurance (i), and the like, fail within the description of goods and chattels. So a right to print. a newspaper (k); shares in public companies not owning realty (l) ; shares in companies owning realty, but declared, either by

(f) Per Lord Eldon, C., in Erp. Ruffin, 6 Ves. 128. See Belcher v. Bellamy. (g) Jones v. Gibbons, 9 Ves. 407; Erp. Wornald, 2 L. T. N. S. 544.

(h) Hornblower v. Proud, 2 B. & Ald. 327. (i) West v. Reid, 2 Hare, 249.

(k) Longman v. Tripp, 2 N. R. 67; Re Baldwin, 2 De G. & J. 230.

(1) Exp. Vauxhall Bridge Company, 1 Gl. & J. 101. But as a decision in the case of this particular company this case is

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