passed to the assignees of the lessee, who became bankrupt, the jury having found that he was the reputed owner of the furniture. Hickenbotham v. Groves, 2 C. and P. 492.

Where a trader authorized a broker employed by him to distrain, to pay a debt due by him to a third person, and the broker promised such third person to pay him the same, it was held that the assignees could not recover the amount of such debt, although he did not pay it until after commission issued. Bedford v. Pickering, 3 C. and P. 90.

Goods sent upon sale or return to a trader, are within his possession, order, and disposition, and pass to his assignees. Livesay v. Hood, 2 Campb. 83. And where there was a custom that the purchasers of hops should leave them in the vendor's warehouse for the purposes of sale, undistinguished from his other stock, they were held to pass to his assignees, Thackthwaite v. Cook, 8 Tuunt. 487; see 5 B. and A. 144, 3 B. and C. 376; but where goods sent on sale or return, the trader to return such as he should not approve of, arrived only the day before the trader's bankruptcy, they were held not to pass to his assignees, for he should have been allowed a reasonable time to have selected such goods as he was disposed to retain. Gibsm v. Bray, 8 Taunt. 76.

Goods belonging to a woman living with the trader as his wife, and asserting herself to be his wife, will pass to his assignees, Mace v. Cadell, Cowp. 232; but where, on marriage, goods are vested in trustees for the separate use of the wife, in order to enable her to carry on a separate trade, and the husband live with her, if he do not intermeddle with them, and there be no fraud, such effects will not pass to the assignees of the husband; but whether the trade be carried on solely by the wife, or jointly with the husband, is a question of fact for the jury; and if they determine the latter, the effects will pass to the assignees. Jarman v. Woolloton, 3 T. R. 618. See also Dean v. Brown, 5 B. and C. 336.

It was held in one case that the share of a dormant partner is not within the statute, the ostensible partner having become bankrupt, Coldwell v. Gregory, 1 Price, 119; but this case has been much doubted, Ex parte Dyster, 2 Rose, 256, and may be considered as overruled by the following decision. A. and B. were partners, but the whole business was carried on by, and in the name of A., B. not appearing to the world as a partner. At the dissolution of the partnership all the joint stock and effects, by agreement, were left in the hands of A., who was to receive and pay all the debts due to and from the concern. After carrying on the business for a year and a half, A. became bankrupt. It was held that the partnership property passed to his assignees. Ex parte Enderby, 2 B. and C. 389, 406; and see Ex parte Barrow, 2 Rose, 252.

A ship registered in the name of one partner, but suffered

to be in the possession, order, and disposition of the partnership, will pass under the assignment of the joint estate. Ex parte Burn, J. and W.373. Upon the sale or mortgage of a ship at sea, the transfer being symbolical by delivery of the grand bill of sale, upon the return of the ship the transfer will be invalid if the purchaser, after notice, neglect to take possession, or notify the transfer to the captain. Mair v. Glennie, 4 M. and S. 240. Richardson v. Campbell, 5 B. and A. 196.

And by 4 Geo. IV. c. 41, s. 44, where any transfer of any ship or vessel, or any share thereof, shall have been made as a security for the payment of any debt, either by way of mort gage, or of any assignment to a trustee, for the purpose of selling for the payment of any debt, if such transfer shall have been duly registered according to the provisions of the act, the interest of the mortgagee shall not be affected by the bankruptcy of the mortgagor, notwithstanding that the ship was at the time in the possession, order, and disposition of the bankrupt, and that he was reputed owner. See Robinson v. Macdonnell, 5 M. and S. 228. Kirkby v. Hodgson, 1 B. and C. 588.

Evidence of reputed ownership-in the bankrupt's possession as executor.] Goods of a testator or intestate, in the possession of the bankrupt, as executor or administrator, are not within the statute. Ex parte Ellis, 1 Atk. 101, 4 T. R. 629. So where the wife of the bankrupt is executrix. Viner v. Cadell, 3 Esp. 88. And even money, if it can be specifically distinguished, will not pass to the assignees. Per Lord Mansfield, 3 Burr. 1369, 3 M. and S. 578. See Fox v. Fisher, 3 B. and A. 135.

Evidence of reputed ownership-in the bankrupt's possession as factor.] Goods in the bankrupt's possession as factor will not pass to his assignees. B. N. P. 42. Per Lord Mansfield, Mace v. Cadell, Cowp. 233. If the factor has sold the goods and received the proceeds before the bankruptcy, the principal must come in with the rest of the creditors and prove, Soott v. Surman, Willes, 400; but if the factor takes notes in payment, ibid., or exchanges the original goods for other goods, Whitecombe v. Jacob, 1 Saik. 160, the notes or goods are the property of the principal, and do not pass to the assignees, see Taylor v. Plumer, 3 M. and S. 562; and if the goods have been sold, and the price has not been paid before the bankruptcy of the factor, and the assignees receive the money, the principal may sue them. Scott v. Surman, Willes, 400.

Evidence of reputed ownership-in the bankrupt's possession for a particular purpose.] Where goods are in the bankrupt's pos

session for a particular purpose, they do not pass under the statute to his assignees. Thus bills deposited by a customer with his banker, and entered as cash (whether indorsed by the customer or not), for the purpose of obtaining payment, which, by the London bankers, are usually entered short (that is, not carried to the customer's credit as cash till paid), do not pass to the assignees of the banker on his becoming bankrupt. Giles v. Perkins, 9 East, 12. Ex parte Sergeant, 1 Rose, 153. A customer was in the habit of indorsing, and paying into his banker's hands, bills not due, which, if approved, were immediately entered (as bills) to his credit, to the full amount, and he was then at liberty to draw for that amount by checks on the bank. The customer was charged interest upon all cash payments to him from the time when made, and upon all payments by bills from the time when they were due and paid, and had credit for interest upon cash paid into the bank from the time of the payment, and upon bills paid in from the time when the amount of them was received. The bankers paid away such bills to their customers as they thought fit. The bankers having become bankrupt, it was held that the bills paid in by the customer, and remaining in specie in the banker's hands, did not pass to the assignees, the cash balance, independently of the bills, being in favour of the customer at the time of the bankruptcy. Thompsom v. Giles, 2 B. and C. 422. But where bills are not remitted for a particular purpose, but to be discounted, and they are discounted accordingly, they pass to the assignees. Carstairs v. Bates, 3 Campb. 301, 2 B. and C. 432. So where bills are sent by one trader to another trader, on a general running account, Bent v. Puller, 5 P. R. 494; or where there is an exchange of bills for bills. Hornblower v. Proud, 2 B. and A. 327; see Parke v. Eliason, 1 East, 554.

A. and B. agreed that B. should purchase of A. the light gold coin which he should send, at a stated price, and that A. should from time to time draw upon B. for the money due upon such sale, and that B. should also from time to time accept other bills drawn by A. for his own convenience, for which A. was to remit value: after they had acted under this contract for some time, B. became a bankrupt, being under acceptances to a large amount; and A., not knowing of the bankruptcy, sent a quantity of light gold and bills, to enable B. to discharge the acceptances, which parcel was taken by B.'s assignees. It was held that A., who had since paid B.'s acceptances, might recover back the gold and bills sent after B.'s bankruptcy, on the ground that they were sent for the particular purpose of paying those acceptances, and that, as the purpose was not answered, the property in the gold, &c. remained in A., for whom B. should be considered

as the factor or banker. Tooke v. Hollingsworth, 5 T. R. 215. 2 H. Bl. 501, S. C.

Where A. having agreed to lend B. 2001. to be applied to a specific purpose, drew a check on his banker for that sum, and delivered it to B., who afterwards became bankrupt, and B. not having used the check returned it to A. after having committed an act of bankruptcy, it was held that B.'s assignees could not maintain trover for the check. Moore v. Barthrop, 1 B. and C. 5. And where A. advanced money to B., then lying in prison, for the purpose of settling with his creditors, and the purpose failing, part of such money was repaid to A. by B., who became bankrupt by lying two months in prison, it was held that the assignees could not recover the money so repaid. Toovey v. Milne, 2 B. and A. 683. If money received by an overseer of the poor be kept apart from his general property, it will not pass to his assignees. R. v. Eg. gington, 1 T. R. 370.

Evidence of reputed ownership-in the bankrupt's possession as trustee.] Property which is in the bankrupt's hands as trustee only, will not pass under the assignment to his assignees. Winch v. Keeley, 1 T. R. 619. Smith v. Pickering, Peake, 50. Taylor v. Plumer, 3 M. and S. 576.

Defence.

The defendant may either controvert the title of the plaintiffs as assignees, or the cause of action. He cannot, however, dispute the bankruptcy, i. e. the petitioning creditor's debt, the trading, and the act of bankruptcy, where the bankrupt, being within the realm, has not, within two months after the adjudication, given notice of his intention to dispute the commission, provided the action be for a debt or demand, for which the bankrupt might have sustained an action, ante p. 413. And in all cases in which the defendant intends to dispute the bankruptcy, he must give notice of the matters which he intends to dispute, unte, p. 414. Where it is competent to the defendant to dispute the bankruptcy, and such notice has been given, but the bankrupt himself has given no notice, the defendant cannot take advantage of the want of a proper petitioning creditor's debt, or of the imperfect evidence of the trading, or of the act of bankruptcy, ante, 414. He may show that the act of bankruptcy was a concerted one; but it has been held to be no defence to show that the commission issued by the desire and at the request of the bankrupt. Shaw v. Williams, R. and M. 19. Though a different rule prevails in bankruptcy. Ex parte Grant, 1 G. and J. 17, Eden, 14.

In proof that the act of bankruptcy was fraudulent, the defendant may give in evidence declarations of the bankrupt before his bankruptcy, "that he did not owe 10l. to any one," and an inquiry "whether a friendly commission could not be issued?" Thompson v. Bridges, 2 B. Moore, 376.

Admitting the bankruptcy, the defendant may show that the property claimed did not in fact pass to the assignees under the assignment; as for instance, that though claimed as property in the possession of the bankrupt as reputed owner, it was in fact in his possession as trustee or factor. Vide supra.

What payments to and by, and transactions with the bankrupt, are good.] The defendant may protect himself by insisting that he comes within the clauses of the bankrupt act by which, in various cases, transactions with the bankrupt, without notice of his bankruptcy, are declared good.

By 6 Geo. IV. c. 16, s. 81, all conveyances by, and all contracts and other dealings and transactions, by and with any bankrupt, bona fide made and entered into more than two calendar months before the date and issuing of the commission against him, and all executions and attachments against the lands and tenements, or goods and chattels of such bankrupt, bona fide executed, or levied, more than two calendar months before the issuing of such commission, shall be valid, notwithstanding any prior act of bankruptcy by him committed, provided the person or persons so dealing with such bankrupt, or at whose suit, or on whose account such execution or attachment shall have issued, had not, at the time of such conveyance, contract, dealing, or transaction, or at the time of executing or levying such execution or attachment, notice of any prior act of bankruptcy by him committed; provided also that where a commission has been superseded, if any other! commission shall issue against any person or persons com-. prised in such first commission, within two calendar months next after it shall have been superseded, no such conveyance, &c. shall be valid, unless made, &c. more than two calendar months before the issuing of the first commission. See Tucker Barrow, 1 M. and M. 137.

V.

On a commission issuing on May 14th, a dealing on March 14th is valid, as "more than two calendar months before the issuing of the commission." Cowie v. Harris, 1 M. and M.

141.

By section 82, all payments really and bona fide made, or which shall hereafter be made, by any bankrupt, or by any person on his behalf, before the date and issuing of the commission against such bankrupt (such payment not being a fraudulent preference of such creditor), shall be deemed valid, notwithstanding any prior act of bankruptcy by such bankrupt committed; and all payments really and bonâ fide made, or