each commission, in declaring for a joint debt the assignees must not describe themselves as joint assignees, but as assignees of each bankrupt respectively. Ray v. Davis. 8 Taunt. 134, 2. B. Moore, 3, S. C. The assignees under a joint commission against A. and B. in suing on a separate contract made with A. may describe themselves generally as the assignees of A. without noticing B. Stonehouse v. Da Sylva, 3 Camp. 399, Harvey v. Morgan, 2 Stark. 17. And the assignees under a joint commission against two partners may recover in the same action debts due to the partners jointly, and debts due to them separately. Graham v. Mulcaater, 4 Bingh. 115. But assignees under a joint commission against A. and B. who have committed acts of bankruptcy at different times, cannot recover money received by the defendant between the acts of bankruptcy, either as money had and received to the use of the bankrupts, or to the use of the assignees. Hogg v. Bridges, 8 Taunt. 200. Where the assignees of two partners declared in trover upon the possession of the bankrupts only, and it appeared in evidence that the greater part of the goods in question belonged to one of the partners only, before the commencement of the partnership, and had never been brought into the partnership fund, and that the residue formed part of the joint estate, Lord Kenyon held that the plaintiffs could recover the residue only, whereas, if there had been a count on the possession of the assignees, as it was a joint commission, and the assignment under such commission passes both joint and separate effects, the whole might have been recovered. Cock v. Tunno, Selw. N. P. 1316, and see 2 Saund. 47, o (n).

Where the appointment of an assignee is vacated by the Chancellor and a new assignee is appointed, the latter is assignee by relation, and may sue in his own name as assignee on a contract made by the former assignee. Aldritt v. Kettridge, 1 Bingh. 355.

Evidence in particular actions by assignees of bankrupts.] In many cases of transactions between the bankrupt and others, after an act of bankruptcy committed, the assignees have the option, either of adopting the contract made by the bankrupt, and suing the party in an action of assumpsit, or of disaffirming the contract, and suing him for damages in an action of trover. They cannot, however, disaffirm the transaction, if it appears that they have once affirmed it. Brewer v. Śparrow, 7 B. and C. 310. Therefore, where assignees had recovered a sum of money from the bankrupt's banker, which had been received by him, and the amount of which had been paid over to a creditor of the bankrupt, with a knowledge of the bankruptcy, it was held that they could not sue the creditor who had received it; for having disaffirmed the banker's acts in

the former action, they could not in the present suit affirm them as payments of the bankrupt's money. Vernon v. Hanson, 2 T. R. 287. So where the bankrupt, before his bankruptcy, had purchased goods on credit, and re-sold them, fraudulently, at under-prices, it was ruled that assumpsit for goods sold and delivered could not be maintained by the assignees against the purchaser to recover the difference in value, which would be both to affirm and disaffirm the contract. Burra v. Clark, 4 Campb. 355. Money had and received has been held to be maintainable against a person, who, after taking the goods of the bankrupt in execution after an act of bankruptcy, has taken them under a bill of sale from the sheriff. Reed v. James, 1 Stark. 134. And where a bankrupt, after an act of bankruptcy, contracted with a factor, to whom he had delivered goods for sale, and who had accepted a bill upon the strength of the goods, to return the goods if he would return the bill, and did return the bill, it was ruled that the assignees might adopt this contract and recover against the factor for the nondelivery of the goods. Butler v. Carver, 2 Sturk. 433.

Where the goods of the bankrupt have been converted by the defendant, either before or after the bankruptcy, the assignees may recover their value in an action of trover. Where there has been a tortious taking since the bankruptcy, such taking is a sufficient conversion; but where there has been a collusive sale of the goods by the trader in contemplation of bankruptcy, there will be no conversion without evidence of a demand and refusal. Nixon v. Jenkins, 2 H. B. 135, ante, p. 405. In some cases, although trover will lie, yet it is neces sary to bring assumpsit, in order to recover substantial damages. Thus, where after his bankruptcy the bankrupt drew a check in favour of one of his creditors, upon his bankers, who paid the check, it was held that the assignees could not recover the amount of the money in trover against the creditor, but only the value of the paper. Matthew v. Sherwell, 2 Taunt. 439, and see Walker v. Laing, 7 Taunt. 568. A sheriff who seizes and sells the goods of the bankrupt after an act of bankruptcy committed, is liable in trover, although he had no notice of the act of bankruptcy. Potter v. Starkie, cited 4 M.

and S. 260.

Evidence in particular actions-as to reputed ownership.] By 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 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 commissioners shall have power to sell the same for the benefit of the creditors.

All personal goods and chattels are within the statute, as

ships, Stephens v. Sole, cited 1 Ves. 352, Ex parte Burn, 1 Jać. and W. 378; and utensils of trade, Lingard v. Messiter, 1 B. and C. 308, Sinclair v. Stevenson, 2 Bingh. 524, unless such utensils are let, and there is a usage of trade for the utensils to be let, Horn v. Baker, 9 East, 215, 239; so stock, Er parte Richardson, Buck. 480; bills of exchange, Hornblower v. Proud, 2 B. and A. 327; policies of insurance, Falkener v. Case, 3 Br. C. C. 125; shares in a public company, Nelson v. London Ass. Co., 2 S. and S. 292; and in a newspaper, Longman v. Tripp, 2 N. R. 67; have been held to be within the statute.

In order to bring the case within the statute the assignees should, in general, give some evidence beyond that of mere possession. Where the bankrupt has once been the owner of the property in question, the mere fact of possession may, it is said, raise a presumption that he continues in possession as reputed owner; but where the bankrupt has never been the real owner, possession may not of itself show him to be reputed owner, and it would then be necessary for the assignees to establish that fact by other evidence. Lingard v. Messiter, 1 B. and C. 508. Where it appears in evidence that, in some instances, articles used in collieries belong to the te nants, and that in others they do not; that, though in some cases the landlord, in demising collieries, permits the lessee, on certain conditions, to have the use of the fixtures and other things during the demise, yet that in other instances they be long absolutely to the lessee; then if the possession of such things is consistent with the fact of a person being absolute owner, and also of his not being absolute owner, the mere possession of such things ought not to raise an inference in the mind of any cautious person acquainted with the usage that the person in possession is the owner. Per Abbott, C. J., Storer v. Hunter, 3 B. and C. 376, see Thackthwaite v. Cock, 3 Taunt. 487, post. In order to prove the bankrupt reputed owner, evidence of reputation is admissible, Oliver v. Bartlett, 1 B. and B. 269; and, on the other hand, evidence of a contrary reputation is admissible for the defendant. Gurr v. Rut ton, Holt, 327. Thus, evidence of the bankrupt being in pos session of furniture, &c., under an agreement which was notorious in the neighbourhood, was held to take the case out of the statute. Muller v. Moss, 1 M. and S. 335.

Evidence of reputed ownership" at the time he becomes bankrupt."] Goods which have come to the possession of the bank. rupt after the act of bankruptcy, are not within the statute. Lyon v. Weldon, 2 Bing. 334. So if the goods are taken out of the possession of the bankrupt, before the act of bankruptcy, they will not pass to the assignees. Thus where the purchaser of goods lying at a wharf received a delivery order from the seller, but suffered them to remain in the name of the

seller for several months, during which time the seller disposed of a part, till, upon notice of the seller's insolvency, the purchaser had the goods transferred into his own name nine days before the seller's bankruptcy, it was held that the goods did not pass under the statute. Jones v. Dwyer, 15 East, 21. So where the purchaser took possession the day before the bankruptcy. Arbouin v. Williams, R. and M. 72; but see Darby v. Smith, 8 T. R. 82, 15 East, 26. But a removal on the same day, but before the act of bankruptcy, will not take the case out of the statute. Arbouin v. Williams, R. and M. 72.

Evidence of reputed ownership—“by consent and permission of the true owner."] The property of infants, who cannot corsent, is not within the statute. Viner v. Cadell, 3 Esp. 88. So stock, transferred by the accountant general into the name of the mortgagor, without the privity of the mortgagee, will not pass. Ex parte Richardson, Buck, 480. But where a trustee sold and let the purchaser into possession before payment, the case was held to be within the statute, for by the "true owner," the legal owner is intended. Ex parte Dale, Buck, 365.

Evidence of reputed ownership" have in his possession, order, or disposition." Where a warrant was directed to a trader's servant and another person, as special bailiffs, who took possession of the goods in the shop, but the business, without the trader's interference, was carried on apparently as usual, it was held that the possession of the servant was the possession of the master, and that the case was within the statute. Jackson v. Irvin, 2 Camph. 48. Toussaint v. Hartop, Holt, 335; and see Doker v. Hasler, 2 Bing. 479. Where a trader gave a creditor an order to receive a certain sum of money in the hands of A., whom he directed to transmit it to the creditor, and whilst the money was in the hands of the carrier the trader became bankrupt, Lord Ellenborough was of opinion, that while the money was in the hands of the carrier the property remained unaltered, and that the case was within the statute. Hervey v. Liddiard, 1 Stark. 123. But the possession of a pawnee is not the possession of the bankrupt pawnor, so as to bring the goods pawned within the statute. Greening v. Clerk, 4 B. and C. 316. Where the goods were by agreement left in the vendor's possession, but the purchaser marked them with his initials, they were held to be within the statute, Knowles v. Horsfall, 5 B. and A. 134, Lingard v. Messiter, 1 B. and C. 308; but, where wine sold by the bankrupt was, for the purchaser's convenience, bottled and deposited in the bankrupt's cellar, set apart in a particular bin, marked with the purchaser's seal, and entered in the bankrupt's books as belonging to the purchaser, it was held not to be within the statute. Ex parte Marrable, 1 G. and J.

402. Carruthers v. Payne, 5 Bingh. 270. So where A. deposited with B. as a security, certain warrants of the WestIndia Dock Company for sugars deposited in their ware houses, and entered in his name in their books, and the company assented to the transfer, and A. afterwards became bankrupt, it was held that the sugars did not pass to A.'s assignees, as the transfer of the warrants was a complete transfer of the possession before the bankruptcy. Lucas v. Dorrien, 1 B. Moore, 29. If a symbolical delivery only can be made, it is sufficient to take the case out of the statute. Manton v. Moore, 7 T. R. 67. Mair v. Glennie, 4 M. and S. 240. Brown v. Heathcote, 1 Atk. 160. Where a person entitled to take out letters of administration neglected to do so, but remained in possession of the goods of the intestate, and became bankrupt, the case was held within the statute. For v. Fisher, 3 B. and A. 135. Where A., a dyer, having purchased a plant of B., resold it to him, and B. never took actual possession, but demised it to A. for three years, during which time A. became bankrupt, the plant was held to pass to his assignees. Bryson v. Wylie, 1 B. and P. 83 (a). So where a creditor purchased under a bill of sale from the sheriff, certain machinery of his debtor taken in execution at his suit, and having marked them with his initials, demised them to his debtor, it was held, that as the change of ownership was not notorious, the machinery passed to the assignees of the debtor. Lingard v. Messiter, 1 B. and C. 308. See Storer v. Hunter, 3 B. and C. 368, Horn v. Baker, 9 East, 215, Lingham v. Biggs, 1 B. and P. 82. Where a testator directed, in case his son should carry on his trade, that his lease and furniture should not be sold, but that his trustees should permit his widow and children to reside in his dwelling-house, and have the use of the furniture, it was held that the furniture did not pass to the assignees of the mother and son, who had carried on the trade. Ex parte Martin, 2 Rose, 331. So furniture left to trustees to be enjoyed with a mansion-house, and not to be removed without the leave of the trustees. Earl of Shafts. v. Russell, 1 B. and C. 666.

So where household furniture and stock, in pursuance of an agreement for sale of a dwelling-house, and the household furniture and stock therein, were left in the dwelling-house, in the possession of the seller, for three months after the sale, they were held not to be in his order and disposition on his becoming bankrupt within the three months, the sale being notorious in the neighbourhood. Muller v. Moss, 1 M. and S.

335.

But where a house was let with a covenant to determine the lease on the lessee committing an act of bankruptcy, and by another deed the furniture of the house was demised sub.ect to a similar covenant, it was held that the furniture