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purchaser's initials were marked upon them, they were held to be in the bankrupt's possession, order, and disposition, within the statute (/)). So it is, if the goods lie at a wharf, and the purchaser neglects to have his name transferred in the wharfinger's books (q); or, where the goods have been traded with in the name of the bankrupt vendor (/•).
But if as good a delivery, as the nature of the Symbolical case admits of, be made by the vendor to the pur- ""y" chaser, the property will not pass to the assignees; as, where a quantity of timber is taken possession of by the symbolical delivery of a halfpenny (s). So, the assignment of the bill of lading vests the property in a cargo of goods at sea (t); or, the delivery of the grand bill of sale, of a vessel at sea (u). So, the assignment of West India Dock warrants, (or of any transfer tickets(.r),) was held to transfer the property in sugars, &c., lying at the docks (j/); or, the lodging of a delivery-order with
(p) Knowles v. Horsfall, 5 B. & A. 134. See Lingard v. Messiter, 1 B. & C. 308.
(q) See Jones v Dwyer, 15 East, 21.
(r) Gordon v. E. I. Company, 7 T. R. 228.
(*) Manton v. Moore, 7 T. R. 67.
(<) Brown v. Hcathcote, 1 Atk. 160. See Lempriere v. Pusley, 2 T. R. 485.—Post.
(w) Atkinson v. Mating, 2 T. R. 462.
(x) Ridout v. Alder, 1 Mont. 103. See Wilkinson v. Reay, Dan. & Lloyd, Merc. Ca. 202.
(y) Lucas v. Dorrien, 1 B. Moore, 29; Greening v. Clarke, 4 B. & C. 316; Davenport, ex parte, 1 Deac. & Chit. 397.
the wharfinger, although the goods were not actually transferred in the wharfinger's books (z).
Where the goods remain in the warehouses of the vendor, undistinguished from the rest of his stock, they will pass to the assignees on his bankruptcy (a). Otherwise, if the goods have been kept distinct, and the purchaser has, by some act, appropriated them to himself; as, where the purchaser of wine left it with the merchant for his own convenience, but had the bottles sealed with his own seal, and deposited in a particular bin (b). Mere tem- And, in general, mere temporary custody of goods
porary cus- ° x' ""
tody, not is not within the statute (c); as, where the pur
wilhin the V / » » r
statute. chaser of a carriage, being abroad, left it for a period agreed upon in the custody of the coachmaker, who afterwards became bankrupt (</); or, where a purchaser sends timber to a wharf for sale, directing his servant to sell them, and the owner of the wharf becomes bankrupt (e); or, where a father allows his son, as agent merely, to
(z) Tucker v. Ruston, 2 C. & P. 86 ; Arbouin v. Williams, Ry. & Moo. 72. See 2 Campb. 246.
(a) Thacktwaite v. Cocks, 3 Taunt. 487. See White v. fVilks, 5 Taunt. 176; Batten, ex parte, 3 Deac. & Chit. 328.
(A) Ex parte Marrable, 1 Glyn. & Jam. 402.
(c) Ex parte Fhjn, in re Matthews, 1 Atk. 185; see Mullet v. Moss, 1 M. & S. 335. [And see above, p. Ill, and the cases there cited, as to the power of a vendee, being in embarrassed circumstances at the time of the receipt of the goods, to decline accepting them, and to re-transfer the property to the vendor.]
(d) Bartram v. Payne, 3 C. & P. 175.
(e) Boddt/ v. Esdaile, 1 C. & P. 62.
carry on trade with the goods(/). So, property, placed in the hands of a trader for some specific purpose, will not, in the event of his bankruptcy, pass to the assignees (g); thus, where an agent contracted in his own name, but in reality on behalf of his principal, to supply certain timber, the timber, being placed in his hands for the purposes of the contract, was held on his bankruptcy not to pass under the statute (h). Goods obtained under false pretences do not pass(i). But goods sent to a trader on sale or return, remaining in his possession at the time of his bankruptcy, though sent only for such special purpose, have been held to pass to the assignees (&); unless the trader, after receiving them, left them unpacked, and exercised no act of ownership (/). And, where chattels and fixtures are let on lease together to a trader, though the fixtures do not pass(w), the chattels
(/) Stafford v. Clarke, 1 C. & P. 24.
(g) Tooke v. Hollingrvorth, 5 T. R. 215; Moore v. Barthrop, 1 B. & C. 5; S. C. 2 D. & R. 25.
(h) Collins v. Forbes, 3 T. R. 316. See Davis v. Living, Holt, N. P. C. 275.
(i) Gladstone v. Hadwen, 1 M. & S. 517, (which seems to overrule Milward v. Forbes, 4 Esp. 171.) See 2 Bingh. 517.
(A) Livesay v. Hood, 2 Campb. 83.
(f) Gibson v. Brat), 8 Taunt. 76; S. C. 1 B. Moore, 519. The trader became bankrupt on the evening of their arrival.
(wi) Clark v. Crownshaw, 3 B. & Ad. 804; Combs v. Beaumont, 5 B. & Ad. 72; Boydell v. M'Michael, 1 Cr. Mees. & R. 177.
will be held to go to the assignees, under the statute («). specific aP- Where the trader, before his bankruptcy, has bytrader." specifically appropriated certain property in favour of a third party, it will not be considered to be within the possession, order, and disposition of the bankrupt, and will not therefore pass to the assignees under the statute :—as, where the trader gives a written order, for the sale of certain goods in the hands of a third party, in order to apply the proceeds to the payment of an outstanding bill, but becomes bankrupt before the sale takes place (o); or, where he requests the defendant (being his debtor) to pay to J. S. (being his creditor) the sum of money due from the defendant, which the latter promises to do, but the trader becomes bankrupt, after the amount had been ascertained, but before the payment has been made Qo). So it is, where a party accepts bills of exchange drawn by the trader, on the faith of a special agreement, that the proceeds of a certain consignment shall be applied to the payment of the bills (q); or, where a party advances money upon an express
(n) Horn v. Baker, 9 East, 215; Bryson v. Wylie, 1 B. & P. 83, n.; Sinclair v. Stephenson, 2 Bingh. 514; Lingham v. Biggs, 1 B. & P. 82.
(o) Baily v. Culverwell, 8 B. & C. 448; Favenc v. Hullett, 1 Campb. 554. See Graff v. Greffulhe, 1 Camph. 89.
(p) Crowfoot v. Gurney, 9 Bingh. 372; Bedford v. Perkins, 3 C. & P. 90.
(q) Thomas v. Da Costa, 2 B. Moore, 386.
agreement that the trader shall remit to him certain proceeds by way of security (r). In order, however, to constitute a specific appropriation, there must have been some express and positive agreement, or some specific order given by the trader; a mere general agreement(s), or a bare direction (t) to the party holding the property, to apply it to a certain purpose, is insufficient. An agreement by the trader to assign, on a contingency, goods uncertain in quantity, and remaining unascertained until the bankruptcy happens, will not amount to a specific appropriation :—thus, where the trader, in pursuance of an agreement with J. S., who was under liabilities as indorser of several bills drawn by the trader, gave directions to his agent abroad to hand over, in favour of J. S., such property in the agent's hands as might be sufficient to cover the amount of bills that eventually might not be paid,—it was held, after the bankruptcy of the trader, that there had been no legal or equitable assignment of the property to J. S.; and the assignees accordingly recovered the value in trover (u).
(r) Fisher v. Miller, 1 Bingh. 150. And after the appropriation has once been made, even the trader himself before his bankruptcy has no power to rescind it: for it is different from a mere order to an agent to pay money, which is countermandable at any time before execution; See 1 Bingh. 155.
(*) Carter v. Barclay, 3 Stark. N. P. C. 43.
(t) Williams v. Everett, 14 East, 582.
(«) Carvalho v. Burn, 4 B. & Ad. 382; S. C. (affirmed in error) 1 Ad. & Ell. 883.