a creditor, but by agreement between them, continued to print and publish as before, and no affidavit of any change of interest was delivered at the stamp-office, it was holden that the interest in the paper passed to the assignees of the trader upon his bankruptcy (b). And the same was formerly the case as to ships: if the owner of a ship mortgaged it to another, but continued to freight it, or act otherwise as the owner of it, it would pass to his assignees upon his bankruptcy, even although it were registered in the name of the mortgagee (c); and the like, where he was a part-owner only (d), or the sole owner, but assigned only a share in it (e). But the law in this respect is altered by the new Registry Act; and a party may now with safety take a mortgage of a ship, and allow the mortgagor to retain the possession and management of it, without risk of its passing to his assignees if he should become bankrupt, provided it be duly registered according to the provisions of stat. 3 & 4 Will. 4, c. 55; for by that statute, sect. 43, when any transfer of any ship or vessel, or of any share or shares thereof, shall have been made as a security for the payment of any debt or debts, either by way of mortgage or of assignment as aforesaid, and such transfer shall have been duly registered according to the provisions of this act, the right or interest of the mortgagee, or other assignee as aforesaid, shall not be in any manner affected by any act or acts of bankruptcy committed by such mortgagor or assignor, mortgagors or assignors, after the time when such mortgage or assignment shall have been so registered as aforesaid, notwithstanding such mortgagor or assignor, mortgagors or assignors, at the time he or they shall so become bankrupt as aforesaid, shall have in his or their possession, order, and disposition, and shall be the reputed owner or owners of the said ship or vessel, or the share or shares thereof so by him or them mortgaged or assigned as aforesaid; but that such mortgage or assignment shall take place of, and be preferred to, any right, claim, or interest which may belong to the assignee or assignees of such bankrupt or bankrupts in such ship or vessel, share or shares thereof, any law or statute to the contrary thereof notwithstanding.

In other respects, however, the law remains the same. The registry of a ship is held to be conclusive evidence of the property against any trust which would otherwise arise from the acts of the parties, but not against those trusts which arise from operation of law (ƒ); and, therefore, where ships registered in the name of one partner only were in the order and disposition of the partnership at the time of their bankruptcy, they were holden to pass under the assignment of the joint estate (g). Where goods bought and paid for are allowed to remain with the vendor until his bankruptcy, undistinguished from the remainder of his stock, they will

(b) Longman v. Tripp, 1 New R. 67. (c) Hay v. Fairbairn, 2 B. & A. 193: Robinson v. M'Donnell, 9 M. & S. 228; 2 B. & A. 134: Monkhouse v. Hay, 2 B. & B. 114; 4 Moore, 549; 8 Price, 356. (d) Hall v. Gurney, Cook, 353.

(e) Kirkly v. Hodgson, 2 D. & R. 848. (f) Curtis v. Perry, 6 Ves. 739: Ex p. Yallop, 15 Ves. 60: Er p. Howson, 1 Rose, 177; 17 Ves. 251.

(g) Ex p. Burn, 1 Jac. & W. 378.

pass to his assignees. Therefore, where a person purchased hops of a hop-merchant, and allowed them to remain in his warehouse for re-sale, upon rent, undistinguished from his stock; although this was proved to be the constant custom of the trade, yet the hops were holden to pass to the merchant's assignees upon his bankruptcy, as being in his possession, order, and disposition (h). Where a spirit-merchant sold to a wine-merchant 52 casks of brandy, all of which were bonded in the vendor's name, some of them being in the vendor's warehouse, and some in that of a warehouse-keeper, and it was agreed that they should remain where they were until the vendee could conveniently remove them; and upon the sale the vendee marked the casks with the letter K in chalk; no notice of the sale was given to the warehouseman, but it was notorious to all persons in the wine trade at the place where the brandy had been sold: the vendor becoming bankrupt, whilst a part of the brandy thus remained in the warehouses, it was holden to pass to his assignees, as being in his possession, order, and disposition (i). But, where a gentleman purchased a pipe of wine of a wine-merchant, and had it bottled, and each bottle sealed with his own seal, but for his conveniency it was deposited in the merchant's cellar, in a particular bin by itself, this was holden not to pass to the assignees on the merchant's bankruptcy (k). Where a thing, not in existence in specie, is contracted for, no property vests in the purchaser until the thing is finished and delivered; but where, by the contract, a vessel is to be built under the superintendance of the purchaser's surveyor, there, so soon as the materials are approved of by the superintendant and used in the work, the fabric, so far as it consists of such materials, is appropriated to the purchaser, and vests in him, subject to the right of the builder to retain such part to enable him to complete the work and earn the rest of the price, and when the whole is complete the property vests in the purchaser; and the ship-builder having become bankrupt during the building of the vessel, and the same was finished by the assignee, it was held that the right to the vessel vests in the purchaser, and was not in the order and disposition of the bankrupt (1). Also, where a ship-builder was building a ship for a merchant, and having nearly finished it, it was measured with his privity, and he gave a certificate of build for the purpose of having it registered by the merchant, and it was accordingly registered in the merchant's name; the ship was to be paid for by four instalments, three of which were to be paid (and were paid) during the building, the fourth upon its completion; but the builder became bankrupt before its completion, and the merchant took possession of it as it was, together with a rudder and some cordage which the builder had bought for it; in an action of trover for it by the builder's assignees against the merchant, it was holden that the giving the certificate of build was a transfer of the ownership in the vessel to

(h) Thacktwaite v. Cock, 3 Taunt. 487: and see White v. Wilks, 5 Taunt. 176.

(i) Knowles v. Horsfall, 5 B. & A. 134.

(k) Ex p. Marrable, 1 Glyn & J. 402. (1) Clarke v. Spence, 6 N. & Man. 399; 4 Adol. & E. 448.

the merchant; that the rudder and cordage being bought for the vessel, must be considered as part of it; and that this was not a case of possession, order, or disposition within the meaning of the statute (m). So, a mere temporary custody of goods, it seems, will not be within the statute (n); as if an innkeeper borrow an old chaise from a coachmaker, while he has a new chaise making, and use the old chaise in the course of his trade, but does not have his name painted thereon, under the statute 4 Geo. 4, c. 62, s. 11 (o); or, if a customer purchases and pays for a carriage, but leaves it with the coachmaker by agreement for a stated period, the purchaser being abroad, and the coachmaker, without authority, exhibits the carriage for sale, and contracts to sell it to another customer (p); this is not such an order or disposition of the bankrupt as to vest the property in his assignees: and where the owner of deals sent them to a wharf for sale, and sent his servant to sell them as he could get customers, and the wharfinger became bankrupt, the deals did not pass to the assignees (q). Where the bankrupt, at the time of his bankruptcy, has goods in his possession as the servant of his father, for the purpose of carrying on the trade for the father's benefit only, the goods will not pass to the assignees (r).

Where goods are sent to a trader upon sale or return, and he become bankrupt whilst they remain with him, they pass to his assignees, as being in his possession, order, and disposition (s). But, where the trader only received the goods the evening before his bankruptcy, and in fact never unpacked them, nor was his shop ever opened afterwards, it was holden that they did not pass to his assignees (†).

All the chattel property of a woman vests of course in her husband upon marriage, and passes to his assignees upon his bankruptcy. Even in a case where a woman, who kept a public-house, said she was married to a man named Penrice, and had his name entered in the excise books, with a note in the margin, "Married;" Penrice from that time had the licence, and continued in possession of the house and goods until his bankruptcy; and the woman then denied that she had ever been married to him, and claimed the goods: it was holden clearly, that this was a case within the statute, and that the property in the goods passed to the assignees (u). So, where household furniture, the property of a widow and her children, was, upon her second marriage, assigned to trustees in trust to suffer the husband to enjoy them, on condition that he should pay to the trustees for the use of the children £800, by yearly instalments of £100 each; he continued in possession for two or three years, and up to his bankruptcy, and at that time he had paid £250 on account of them: it was holden that they passed to

(m) Wood v. Russell, 5 B. & A. 942: see Mucklow v. Mangles, 1 Taunt. 318. (n) Flint v. Matthews, 1 Atk. 185: and see Muller v. Moss, 1 M. & S. 335.

(0) Newport v. Hollings, 3 Car. & P. 223.

(p) Bertram v. Payne, 3 Car. & P.

175.

(9) Boddy v. Esdaile, 1 Car. & P. 62. (r) Stafford v. Clark, 1 Car. & P. 24. (s) Livesay v. Hood, 2 Camp. 83. (t) Gibson v. Bray, 1 Moore, 519; 8 Taunt. 76.

(u) Mace v. Cadell, Cowp. 232.

the assignees, under the statute, as being in his possession, &c. as reputed owner (x). But where, upon marriage, goods are vested in trustees for the separate use of the wife, to enable her to carry on a separate trade, the husband's living with her will not be such a reputed ownership in him as to make these goods pass to his assignees upon his bankruptcy (y).

Where mere movable chattels are leased, either with or without a messuage or land, they will pass to the assignees of the lessee, as the reputed owner of them, upon his bankruptcy. So, an hotelkeeper taking his house upon a lease, with a covenant that it should be void upon his committing an act of bankruptcy on which a commission should issue, and hiring his furniture at å rent, and with a proviso that the landlord should resume possession of the furniture upon the lessee committing an act of bankruptcy; these were held to be private contracts between the parties, and being unknown to the world, would not prevent the property in the furniture vesting in the assignees, if in the order and disposition of the bankrupt, as the ostensible owner, and he gain credit upon the faith of them (2). And where the lessee purchased fixed and movable implements, &c., and agreed with the lessor upon certain notice to deliver them up at the end or other determination of the term, at a valuation, and afterwards the lessee assigned them over to a creditor, upon trust, in case of default in payment of the debt, to enter and sell and pay the debt, and, if the lessor required to purchase under the agreement, then the debt to be paid out of the purchase-money; default was made, the lessee became bankrupt, and the creditor, after the bankruptcy, entered: it was held, that the movables were in the order and disposition of the bankrupt, and passed to the assignees (a). Where a creditor, after taking in execution the household furniture and other goods of a trader, let them to him by a deed for a term of years, and he covenanted not to remove them without the creditor's consent; the trader continued in possession for several years, and then became bankrupt; it was holden that, as the bankrupt was the reputed owner, and appeared to have the order and disposition of the goods, they passed to his assignees (b). And where the landlord distrained for arrears of rent, and took the goods on an appraisement, and left them on the premises for the use of the bankrupt's wife, the bankrupt then being in prison, and after the bankruptcy again distrained for the same arrears of rent; the second distress was void, and the goods, being in the order and disposition of the bankrupt, passed to the assignees (c). So, where a creditor having purchased, under a bill of sale from the sheriff, machinery of his debtor seized in execution at his suit, and having marked it with the initials of his name, allowed the debtor to retain the possession of it, upon his

(x) Darby v. Smith, 8 T. R. 82.

(y) Haselington v. Gill, 3 T. R. 620 n.: Jarman v. Wolloton, Id. 618: Er p. Massey, 2 Mon. & A. 173; 4 Dea. & C. 405.

(z) Hickenbotham v. Groves, 2 Car. &

P. 492: but see p. 214, post.

(a) Clark v. Crownshaw, 9 Bing. 804. (b) Lingham v. Biggs, 1 B. & P. 82. (c) Ex p. Shuttleworth, 1 Dea. & C. 223.

agreeing to pay a rent for the use of it, and the debtor remained in possession of it until he committed an act of bankruptcy: it was holden, that as the change of ownership was not notorious, the bankrupt must be deemed to have the reputed ownership of the goods, and that they therefore passed to his assignees (d). Also where a distillery, with coppers, vats, still, &c. was let on lease, to traders, who became bankrupt, it was holden that the stills, &c. which were fixed to the freehold, did not pass to the assignees, but that the vats, and other things which were movable did, as being in the reputed ownership of the bankrupts (e). So, where a dyer, having purchased a plant of J. S., and being unable to pay for it, resold it to J. S., who, however, instead of taking possession, demised it to the dyer for three years at a certain rent, and the dyer within that time became bankrupt: it was holden that it passed to his assignees (f). But, where a colliery, with all the machinery and implements for working, was leased for years, with a proviso for re-entry by the landlord on non-payment of rent, and a covenant on the part of the lessee, at the expiration or sooner determination of the demise, to deliver up the machinery and implements, conformably to an inventory annexed to the lease, of which a re-valuation was to be made three months before the expiration of the demise, and the landlord recovered judgment in ejectment in Trinity term for a forfeiture in not paying rent, but did not execute the writ of possession until the 8th of November following, being the day before the tenant committed an act of bankruptcy: held, that the landlord was entitled to take possession of the machinery and implements (some of which had been brought on the premises by the tenant during the term) though no previous valuation had been made; that the possession of the machinery and implements by the tenants was only qualified, and did not come within the meaning of 21 Jac. 1, c. 19, so as to bar the landlord's right of entry on the 8th of November, and the tenant's use of the machinery and implements in the interval between the judgment in ejectment and the execution of the writ of possession, did not give him the "possession, order, or disposition" thereof, with the consent of the true owner, within the meaning of the statute, so as to pass the property to his assignees (g) and trade fixtures mortgaged with the buildings, and so attached as to be part of the freehold, or if the bankrupt had been tenant, and had the property for the purposes of trade, or if the bankrupt had been tenant, and the property fixed were goods and chattels, but there is a custom to let such property along with such premises, it will not be a case of reputed ownership within the 72nd section of the statute (h): the same of machinery affixed to the freehold of iron-works (i); and also of the steam engine of a

:

(d) Lingard v. Messiter, 2 D. & R. 495; 1 B. & C. 308; and see Storer v. Hunter, 5 D. & R. 240.

(e) Horn v. Baker, 9 East, 215: and see Sinclair v. Stevenson, 10 Moore, 46; 2 Bing. 514.

(f) Bryson v. Wylie, 1 B. & P. 13 n.;

Cook, 362.

(g) Storer v. Hunter, 5 Dow. & R. 240; 3 B. & C. 368.

(h) Ex p. Wilson, 4 Dea. & C. 143; 2 Mon. & A. 61.

(i) Rufford v. Bishop, 5 Russ. 346.