neral law, whereby his person might be confined at the discretion of his creditor, though in reality he has nothing to satisfy the debt: whereas the

& B. 240. 7 Ves. 597.-Notice is necessary in bankruptcy. Doug. 497. 11 East, 114. 3 Camp. 165. Bayl. 115. The rule has been relaxed in peculiar cases at law. 13 East, 214. 4 Camp. 285. 1 Stark. 116.-Accepting composition, Co. B. L. 181. 11 Ves. 410. 3 Bro. C. C. 1. Eden's ed.-Lost Bill, 6 Ves. 812. Chit. 147 to 157.-Bill in lieu of cancelled bill. 7 Ves. 597. Costs.-Whether the action be in contract or tort, if the verdict is not obtained till after act of bankruptcy, costs are not proveable. 11 Ves. 646.; So in tort, if the bankruptcy occur after verdict, and before judgment, 2 M. & S. 70.: but in contract, if bankruptcy occur between verdict and judgment, the costs de incremento are proveable. 2 Bla. Rep. 1317. 1 G. & J. 385. Where debts are of a different right, or a distinct nature, the creditor cannot come in under the commission for one, and afterwards proceed at law for the other. I Rose, 184. 204. 1 G. & J. 270. And if he do so, he may be restrained from proceeding, but the matter cannot be pleaded. 1 B. & A. 121. 5 B. & A. 95. Eden, 103, 4. A credi tor accepting an assignment of a debt is within the act. 1 G. & J. 399. The mere circumstance of being chosen assignee, without having proved, will not prevent a creditor suing at law. 1 Atk. 152. Petitioning creditor has made his election. and cannot afterwards proceed at law, if the commission can be prosecuted. 1 G. & J. 92. Proof of Partnership, Debts, &c.—See the general doctrine, 8 Ves. 541. Whether the debt be joint or separate, depends upon the bona fide agreement, or understanding at the time it is contracted. 2'Peake Rep. 524. 6 Ves. 602. The implied authority of one partner, in signing bills, &c. may be rebutted by express previous notice. 1 Camp. 403. 10 East, 264. Where a new partner is taken in, payment by bills in the name of the new firm for debts of the old do not bind him, if it may be inferred that payee knew such payment was without his knowledge, 1 East, 48.; but if received bona fide without such knowledge, it will bind him. 7 East, 210. 13 East, 175. The exceptions to the rule-that a joint creditor shall not receive dividends with the separate creditors, are, 1st, Where he is petitioning creditor under a separate commission. 1 Atk. 135. 9 Ves. 349. 14 Ves. 604. 1 Rose, 10. 17 Ves. 247. 2dly, Where there is no joint estate, and no solvent partner. 15 Ves. 52. 2 V. & B. 216. 2 Rose, 54. 3dly, Where there are no separate debts, or where there are, and the joint creditors undertake to pay them. 9 Ves. 35. 13 Ves. 424. As to Debts between Partners. The proof is inadmissable; the exceptions to the rule are, 1. Where property has been fraudulently taken from the joint-estate to augment the separate estate, or vice versa. 1 Ves. 9. 161. Co. B. L. 561. 2 V. & B. 213. SV. & B. 35. 1 Rose, 437. 6 Madd. 2. 2dly, where there is a minor partnership, or house of trade, constituted of persons who are members of a larger firm, and there are distinct dealings between the distinct houses, and both become bankrupt, 4 Ves. 414. Co. B. L. 538. 1 Rose, 146. 11 Ves. 413.; but a partner cannot prove against his partner, till the joint debts have been paid. 1 Rose, 305. Where a creditor has a joint and separate security, either by the same or different instruments, he must elect, whether he will proceed against the joint or separate estate; with a right to come upon the surplus of the other. There are exceptions to this rule, and the cases are numerous, each depending chiefly upon its own merits. See Co. B. L. 259. 261. 263. 1 Rose, 159. 8 Ves. 546. 2 V. & B. 254. The result may be stated as follows: 1st, Where the parties liable upon a bill or note, are separate firms, and the creditor has no notice of the joint connexion, he may prove against each estate. 2dly, Where such parties are distinct firms, and he has notice that they are also in one partnership, it seems he may prove against each estate. 3dly. Where the parties liable upon a bill or note are not separate firms, but parts of one firm adopting several liabilities upon the instrument, the holder with notice of that fact, will not be entitled to prove; and a holder without notice would probably be put to his election. Where a joint and separate creditor elects to go against the joint estate, he has no preference over the joint creditors, upon the surplus of the separate estate. 10 Ves. 107. Election must be before dividend of the estate upon which he has proved. 13 Ves. 70. 2 Rose, 34. And doing any act after proof, as a creditor on the estate, concludes the election. 1 Mont. Dig. 244. 5 Madd. 418. sed vide 2 Rose, 389. Buck, 7. By Surety where Principal Bankrupt.-The statute only applies where the surety has paid the whole debt, or part in discharge of the whole. If the payment be in discharge of his own personal liability, the bankrupt's certificate is no bar to an action by the surety to recover the money so paid. 5 B. & A. 852. To bring the case within the statute, it is not necessary that the principal creditor should be enabled to prove, or that the bankrupt should be discharged by his certificate, if he does not; a surety in a bond to the king is within the statute. 5 B. & A. 12. If acceptor of accommodation bill sue the drawer, who becomes bankrupt, for not providing funds, whereby he had incurred the costs of an action and other charges, the certificate is a bar. 8 Taunt. 550. 2 B. Moore, 604. 3 B. & A. 13. Where principal creditor has ulterior demands, surety is entitled to the entire benefit of the principal creditor's proof, 2 Rose, 334. overruling 10 Ves 409. and 12 Ves. 435. where it was held that the surety's benefit should be limited so as to admit the creditor to have as large a dividend upon any distinct debt, as if that proof had not been made. As if surety proved for 100%., and creditor for 2001. more, he was allowed to receive his dividend as if the surety had not proved. Seventhly, Of Set-off and Mutual Credit.-Sect. 50 re-enacts, that mutual debts and credits may be set off (omitting the proviso that credit must be given two months before the commission), notwithstanding a secret act of bankruptcy, provided that the person claiming the benefit of such VOL. I.

97

law of bankrupts, taking into consideration the sudden and unavoidable accidents to which men in trade are liable, has given them the liberty of their

set-off had not, when such credit was given, notice (that he was insolvent or had stopped payment, omitted) of an act of bankruptcy committed by such bankrupt.

Decisions-Accounts were to be balanced by the commissioners, or by a jury on a trial at law. 1 T. R. 15.; but, under the recent act, it is said, it can only be balanced by the commissioners. Eden, 194. Where an account has been balanced by the commissioners, it cannot be litigated, but by an application to the great seal. Doug. 407.; and if the assignees proceed at law upon the original demand after such adjustment, the chancellor will restrain them. 1 Atk. 230. 3 T. R. 507. n. 4 T. R. 211. Where A. was indebted to the bankrupt, and was on the other hand liable for him for payments, which he was compelled to make after the bankruptcy, he was held entitled to set the debt against the liability existing at the time of the bankruptcy. Co. B. L. 542. 8 Taunt. 156. So the acceptor of a bill, which did not come due till after the bankruptcy, was held entitled to set it off. 13 Ves. 65. So where bankers had discounted bills for the bankrupt, and given him credit on his account for them, which were dishonoured after the bankruptcy. Holt Rep. 408. Except in cases of positive agreement, or operation of law on the ground of usage, a depository has no right, by virtue of the statute of mutual credit, to set off the value of such goods against a debt due from him to the bankrupt. 1 Atk. 234. Where there is a trust, with the possession of value, between parties, there is also a mutual credit: as, where three persons joined in an adventure, and A. was to find the money and sell the goods procured, all sharing profit and loss, and one becoming bankrupt, it was held that a debt due to him by A might be set against the third share of the general property belonging to the bankrupt. Co. B. L. 536. See also 7 T. R. 378. as to the case of depositing a bill be tween dealers; and 5 Taunt. 56. as to lien by agents for general balance. But it has been laid down that credits mean such credits as must terminate in cross debts; for where there is a mere deposit, without any authority to turn it into money, no debt can arise out of it. 8 Taunt. 499. 2 Moore, 547. 2 Brod. & B. 89. 4 Moore, 515. 5 B. & A. 861. 8 Taunt 81. 1 Moore, 451. There can be no set-off between joint and separate debts, unless otherwise provided for by special agreement. I Marsh. Rep. 184. 2 Taunt. 170. 10 Ves. 105. 11 ib. 517. A debt due to a defendant, a surviving_partner, may be set off against a demand on him in his own right, 5 T. R. 493.; and see 6 T. R. 582, where the same principles prevailed, the plaintiff being the surviving partner. A debt due by a bankrupt to a woman dum sola, cannot be set off against a debt due from the husband. 19 Ves. 465. 2 Rose, 249. See 2 Esp. R. 594. as to debt owing by a wife dum sola, as against demand of the husband. Trustees cannot set off their personal debts against their trust credits. 16 East, 130. Equitable demands may also be the subject of set-off. 3 Madd. 205. 11 Ves. 24. 27. 12 Ves. 346. 19 Ves. 467. 2. P. W. 128.

Eighthly, Of the Appointment of Assignees, Assignment and its Operation. Sect. 45. reenacts, that commissioners may appoint assignees until others are chosen by creditors; and the penalty of 2001. if the first assignees do not deliver the effects, &c. to the new ones within ten days after notice of the choice of them. Sect. 61. re-enacts, that at the second meeting, “or any adjournment thereof," assignees shall be chosen; every creditor to the amount of 107., who has proved his debt, is eligible to vote; persons may be authorised by letter of attorney from creditors, execution thereof to be proved either by affidavit, or by oath before the commissioners viva voce; and in case of creditors residing out of England, by oath before a magistrate where the party shall be residing, duly attested by a notary public, British minister, or consul; the choice to be by the major part in value entitled to vote. It is further enacted, "Provided that the commissioners shall have power to reject any person so chosen, who shall appear to them unfit to be such assignee as aforesaid; and upon such rejection, a new choice of another assignee or assignees shall be made as aforesaid. Sect. 66. re-enacts, that the lord chancellor may vacate any conveyance or assignment, either of the real or personal estate, made either to the assignees or to the provisional assignee, provided that the title of purchasers under such conveyance be not affected, nor title thereby barred be revived, and order a new assignment to vest the personal estate in the new assignees; the new conveyance by the commissioners, of real estates, to be valid without any conveyance from the former assignees. Sect. 67. enacts, that suits shall not abate by the death or removal of assignees, but the court may allow the name of the new assignee, &c. to be substituted. Sect. 63. re-enacts, that the commissioners shall assign all the present and future personal estate and debts to the assignees, and all that may come to the bankrupt before he shall obtain his certificate. Sect. 64. contains a similar regulation, that the assignees shall convey the real estate of the bankrupt by deed, indented and enrolled in any court of record, (adds)" except copy or customary-hold in England, Scotland, Ireland, or in any of the dominions, plantations, or colonies belonging to his majesty ;" (and) provided that where, according to the laws of any such colony, &c. the deed, would require enrolment or registration, the same shall be enrolled, &c. accordingly; and no such deed shall invalidate the title of any purchaser for valuable consideration prior to such registration, &c. without notice that the commission has issued. Sect. 65. re-enacts, that the commissioners may make sale of hereditaments whereof the bankrupt is seised, of any estate-tail in possession, reversion, or remainder, to be good against all persons claiming under him after he became bankrupt. Sect. 68. enacts, that commissioners may make sale of copyhold lands, &c. for the benefit of creditors. Sect. 69. reenacts, that vendees of copyhold lands shall compound with the lord for their fines, &c. Sect.

persons, and some pecuniary emoluments, upon condition they surrender up their whole estate to be divided among their creditors.

70. re-enacts, that conditional estates granted by bankrupt may be redeemed. Sect. 71. re-enacts, that commissioners may proceed, where the bankrupt by fraud makes himself debtor to an accountant to the king, and has his real or personal estate extended, upon debt originally due to some other person. Sect. 72. re-enacts, that 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 and dispose of the same for the benefit of the creditors under the commission; (and adds) “ 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 the act for the registering of vessels, 4 Geo. IV. c. 41." Sect. 73. re-enacts, that a conveyance by bankrupt (being at the time insolvent) of his lands or goods to others (except upon the marriage of any one of his children, or for some valuable consideration), or delivery of securities or transfer of debts into other names, shall be void. Sec. 74. re-enacts, that a distress, after act of bankruptcy, shall not be available for more than one year's rent due, and the landlord shall prove for the residue. Before this statute he could, whilst the goods were on the premises, distrain for any arrear of rent. Sect. 75. reenacts, that any bankrupt entitled to any lease or agreement for lease, if the assignees accept the same, shall not be liable for rent accruing after date of the commission, or to covenants, &c.; and if they decline to determine whether they will accept the lease, &c. the lessor, &c. may petition the lord chancellor, who may order them to elect, &c. (and adds) and if the assignees decline the saine, shall not be liable as aforesaid, in case he deliver up such lease or agreement to the lessor, &c. within fourteen days after notice, that the assignees decline as aforesaid. Sect. 76. enacts, that the lord chancellor, on petition of the vendor of any lands, may compel assignees to elect whether they will abide by, or decline the agreement. Sect. 77. re-enacts, that assignees may execute powers previously vested in bankrupts. Sect. 78. re-enacts, that the chancellor may order bankrupts to join in conveyances. (Proviso added) “If such bankrupt shall not try the validity of the commission, or if there shall have been a verdict at law establishing its validity,' (instead of)" at the time of the allowance of or after he has obtained his certificate." Sect. 79. re enacts (with additions to comprehend all trusts of real and personal estates, or interest arising therefrom, stock in any public company in England, Scotland, or Ireland, or rents, issues, and profits), that where trustee becomes bankrupt, the lord chancellor may order conveyance or assignment to other trustees. Sect. 80. re enacts, that if the bankrupt shall be beneficially entitled to any government stock, (adding) “or any of the stock of any public company either in England, Scotland, or Ireland," the commissioners may order the tranfer of the same to the assignees, &c. Sect. 81. re-enacts, that all conveyances, contracts, executions, and attachments, made or levied without notice of any act of bankruptcy, two months before the commission, shall be valid; and further provides, that where a commission has been superseded, if any other commission shall issue against any person or persons comprised in such first commission, within two calendar months next after it shall have been superseded, no such conveyance, contract, dealing or transaction, execution or attachment, shall be valid, unless made, entered into, executed, or levied, more than two calendar months before the issuing the first commission." Sect. 82. re-enacts, that all payments made by and to the bankrupt, without notice of prior act of bankruptcy, and before date of commission (not being a fraudulent preference), shall be valid, notwithstanding any prior act of bankruptcy. Sect. 83. enacts, "that the issuing of a commission shall be deemed notice of a prior act of bankruptcy (if an act of bankruptcy had been actually committed before the issuing the commission), if the adjudication of the person or persons against whom such commission has issued, shall have been notified in the London Gazette, and the person or persons to be affected by such notice may reasonably be presumed to have seen the same." Sect. 84. reenacts, that no parties shall be endangered for delivery of goods belonging to the bankrupt, to him, without notice. Sect. 85. re-enacts, that bodies politic, &c. shall be deemed to have notice, if their accredited agent had notice. Sect. 86. re-enacts, that no purchase from any bankrupt bona fide, (adding) where the purchaser had notice at the time of an act of bankruptcy by such bankrupt committed, shall be impeached, unless the commission be sued out within twelve calendar months (formerly five years) after such act of bankruptcy. Sect. 87. enacts, "that no title to any real or personal estate, sold under any commission, or under any order in bankruptcy, shall be impeached by the bankrupt, or any person claiming under him, in respect of any defect in the suing out of the commission, or in any of the proceedings under the same, unless the bankrupt shall have commenced proceedings to supersede the said commission, and duly prosecuted the same, within twelve calendar months from the issuing thereof."

Decisions. A provisional assignee need not be appointed, unless an extent is apprehended, or to carry on the trade, &c. and if unnecessarily appointed costs will not be allowed. 1 Madd. 141. It is advisable to except copyholds out of the assignment. 1 Atk. 96. The infant heir of the provisional assignee who died before the choice of assignees, has been holden to be a trustee within the 7 Ann. c. 19. 5 Madd. 81. An assignment and bargain and sale have been vacated under very special circumstances, without directing a new choice of assignees. Buck, 477. And the choice of assignees is not to be disturbed on the ground that creditors were prevented from voting by accident, if not kept back by fraud. 12 Ves. 10, 1 Rose, 192. A creditor hav

In this respect our legislature seems to have attended to the example of the Roman law. I mean not the terrible law of the twelve tables; where

ing adverse interest, choosing himself sole assignee, may be removed, 1 Rose, 325.; or an inspector may be appointed in such case. 1 V. & B. 280. 3 ib. 139. 2 Rose, 68. An assignee inay be removed for misconduct. 5 Ves. 707. 12 Ves. 13. So, if permanently residing out of the jurisdiction. 13 Ves. 274. 3 Madd. 23. How far bankrupt's interference in the choice affects the same, see 1 G. & J. 127. In a joint choice of three, if one be declared inelligible, the whole is set aside. Ib. An assignee who retires must give security, to be approved by a master, to protect the estate against any costs which may arise in any action or suit occasioned by his retiring. He must also permit the new assignees to use his name in actions, Buck. 231. 3 Madd. 273; and pay the costs of the meeting for a new choice, and of the application to retire. Buck. 465. But where he retires for the benefit of the estate, as in case of infirmity, he does not pay costs. 5 Madd. 76. Of the Assignees' power, duty, &c. (see post as to accounts, making dividends, &c.)-One partner may execute a power of attorney on behalf of the firm. 14 Ves, 597. 2 Rose, 174. And a creditor is not to be restrained from proving because be may make a bad use of his proof. 1 Rose, 323, 325. Persons proving under a special order of the court, cannot vote in the choice of assignees, unless the order express that they had an anterior right to prove. 1 G. & J. 163. A choice made before one commissioner is invalid. 1 G. & J. 190. The assignee must satisfy himself that commission is valid, and petitioning creditor must furnish him all information in his power for this purpose. 1 G. & J. 86. If he cannot remove all doubts, he may apply to supersede it. Ib. But must in the mean time act as though it were valid. 2 Rose, 17. He cannot dispute the validity of the commission in an action against him, but at the hazard of his proof of debt. 1 Rose, 393. He must keep accounts. s. 101. Attend commissioners on summonses. If assignee or banker with money in hand become bank. rupt, he or his assignees cannot receive dividends on estate till such money has been fully reimbursed. 3 V. & B. 130. 2 Rose, 74. 19 Ves. 222. 2 Madd. 474. Not entitled to travelling expenses, however proper for creditors to allow them. 1 Rose, 145. Nor if assignee be an accountant, to charge for business done in that character. 1 G. & J. 77. He is liable for default of his own appointed agent, 1 Atk. 87.; but not where it is the common usage to employ such an agent, as a broker, &c. Amb. 218. Buck. 197. Assignees are separately liable, only for what they receive, 1 Atk. 89.; but if one concur in the act of the other, both are responsible. 1 V. & B. 114 A receipt given by one only is not a valid discharge, 3 Atk. 695. contrary to the opinion of Lord Kenyon in 1 Esp. 114. 174. A general authority from one to the others to act for him, and to use his name, is not sufficient to enable the others to execute a release by deed, for which there must be a special authority. 4 Esp. R. 220. The solicitor.-The majo rity in number of the assignees nominate the solicitor to the commission, and regulate the continuance of him. 1 Rose, 207. 2 Rose, 66. He must attend to the interest of the estate, even to the prejudice of his own claims. Buck. 74. It is inconsistent with his duty to be solicitor to the bankrupt also. 14 Ves. 513. 1 Rose, 263. It is no objection that he is also assignee. 16 Ves. 166. He must pay commissioner's fees if they are summoned, though there be no assets. 2 Rose, 342. 1 Madd. R. 56. As to what Property passes under Commission.-It has been considered, that a right of action does not pass to the assignees unless they interfere, as the bankrupt may sue as trustee for them. Holt's C. N. P. 172. 3 Moore, 96. Future payments pass to assignees, though the consideration fail by the bankruptcy; as if a premium, payable by instalments, for admission into partnership for a term of years, and the bankruptcy took place long before the term was completed. 1 Swa. 85. Wils Ch. Rep 47. So, compensation under an act of parliament to the owner of a quay, upon the establishment of the West India Docks, who became bankrupt. 17 Ves. S38. 343. The interest in a patent, 3 B. & P. 565.; in the right to publish a newspaper, 2 NR. 67.; pass under the assignment; but probably not the good will of a business. 17 Ves. 335. 1 Rose, 123. Property in Right of Wife -All right which the husband has in right of the wife passes to the assignees, Cullen, 215. except such as is settled to her own sale benefit. Burr. 1776. 7 Vin. Ab. 95. 1 Madd. 199. As a legacy to a feme-covert, directing her receipt to be a sufficient discharge to the executors." 3 Bro. C. C.381.; or" whenever she shall demand or require the same," 2 Cox 414. ; or to trustees" to pay the annual produce into her proper hands," 5 Ves. 545.; or " for her own use and benefit," without any such words as sole or separate. 1 Madd. Rep. 207. But a mere trust to pay the interest to her is not sufficient. 5 Ves. 517. So, where a bequest was to the wife and her brother, and atter her death one half to her children, the husband by no means to have any part, but the whole to the children, the life interest was holden not to be to her separate use. S Ves. 166. The wife's right by survivorship is not reduced into possession by the assignment. 9 Ves 87. 2 Madd. 16. Ás to what is a reduction into possession, see 2 T. R. 627. 9 Ves. 174. 2 Madd. 133. Where the wife's property is the subject of legal cognizance, a court of equity will not interpose. P. Wms. 382. 10 Ves 90. But where the husband or the assignees corne into a court of equity for the recovery of the wife's property, the court will require, as a consideration for its assistance, that a provision be made for her out of the fund. Atk. 192 1 Cox, 153. S Ves. 166. 421. 5 ib. 507. 10 ib. 574. And this equity will be administered at her own suit by her next friend, when the subject is of equitable and not of legal cognizance. 1 Roper, Hus. & Wife, 257. 5 Ves. 737. The allowance is generally half the fund. 1 Sim. & Stu. 250. 1 Madd. 362. Reputed ownership may be rebutted by evidence of a contrary retation. Reputation of ownership is made up of the opinions of a man's neighbours ;

"

by the creditors might cut the debtor's body in pieces, and each of them take his proportionable share: if indeed that law, de debitore in partes se

it is a number of voices concurring upon one or two facts; are we to count the voices on one side and not on the other?" Per Gibbs, C. J. Holt C. N. P. 327. Chattels, interests in lands, houses, and things affixed to the freehold, are not within the enactment as to reputed ownership, 1 Atk. 165. 1 Ves. 348. 9 East, 215.; or shares in a company seised of real estate, ex parte Vauxhall Bridge Company, 1 G & J. 101. But utensils set up in relation to trade, as a dyer's plant, are, 1 B. & P. 83. 1 B. & C. 308. ; and all personal goods and chattels (except where there be an usage of the trade for the utensils of it to be let out to the traders to rebut the presumption of actual ownership. 9 East, 115.) So are stock, Buck, 480. bills of exchange, 2 B. & A. 327. choses in action, 7 T. R. 325. 1 Atk. 165. policies of insurance, 3 Bro. C. C. 125. Buck, 149. 3 Madd. 63. and a share in a newspaper. 2 N. R. 67. The bankrupt must have been the reputed owner at the time he became bankrupt; and goods which, with the consent of the true owner, came to the possession of a party after he became a bankrupt, were held not to vest in the assignees under 21 Jac. I. c. 19. s. 11. (a similar provision) for he becomes bankrupt on committing the act of bankruptcy, which is followed up by a commission. 2 Bing. 334. Body v. Esdaile, in C. P. S. P. A purchaser suffering the goods to remain at the wharfinger's several months after the purchase, in the name of the seller, who also sold some part thereof, but hearing of the insolvency of the seller, had them transferred in his own name, nine days before the bankruptcy, this was held not to be within the statute. 15 East, 21. So, where a creditor, with whom the trader deposited delivery notes of goods lying at a wharf, hearing of the insolvency of the trader, filled them up and took possession of the goods the day before the act of bankruptcy. 1 Ry. & Mo. 72. See Buck, 149. S Madd 63. A prior case, 8 T. R. 82. is at variance with these decisions. But where a warrant, under an execution, was directed to the servants as special bailiffs, the trade being apparently carried on as usual, the case was within the statute, 2 Camp. 48. So, where the execution levied was concealed from the world. Holt Rep. 335. So, goods belonging to a woman living with the bankrupt as his wife. Cowp. 232. So, goods belonging to A., shipped in the name of an officer in the East India Company's service, to evade the bye laws, passed to the captain's assignees on his becoming bankrupt. 7 T. R. 228. The possession must be with the consent and permission of the owner, therefore the property of infants, incapable of consenting, is not within the statute. 3 Esp. 88. So, stock transferred into the name of the mortgagor, by the accountant in general, without the privity of mortgagee. Buck. 480. So, property transferred without the consent of the trustee. 3 T. R. 618. But if trustee contract to sell, and let the purchaser into possession, the goods were holden to be within the statute. Buck. 365. If bankrupt obtain possession fraudulently, under false pretences, he is not reputed owner. 1 M. & S. 517. 7 Taunt. 59. 1 Bar. & Cres. 514. Though the property of testators in the hands of executors become bankrupt, is protected. 1 Atk. 101. 159. 3 Esp. 88. ; yet where a person entitled to administer neglected to do so, and remained in possession for twelve years, and then became bankrupt, held the goods were within the statute. 3 B. & A. 135. Property in the hands of trustee for sale, or factor, will not pass to his assignees 1 P. Wms. 314. 3 ib. 185. 2 Stark. 539. Goods sent on sale or return will, 2 Camp. 83. 1 Holt, 556. unless they are merely sent for selection, and the rejected part to be returned forthwith. 1 Moore, 519. 8 Taunt. 76. ; so hops left in vendor's warehouse for re-sale, undistinguished from vendor's (though it be the custom of hop-merchants). 3 Taunt. 487. vide 5 B. & A. 134. If bills are remitted to a banker for a particular purpose, they continue the property of the sender, 1 Atk. 232. 2 Ves. 586. Amb. 297. 5. T. R. 219 1 East, 544.; but if not so sent, they fall into the bankrupt's estate. 5 T. R. 494. 1 B. & P. 539. Bills not due, however sent to a banker to get paid, do not, 1 Rose, 153. 2 B. & C. 422. Buck, 355.; so wine bottled, set apart in a bin, marked with the purchaser's seal, and entered to him in the bankrupt's books, 1 G. & J. 402.; but brandy in casks, left in vendor's cellar, though marked with vendee's initials, passed to the vendor's assignees. 5 B. & A. 134. The putting on initials is of no weight. 1 B. & C. 308 The share of a dormant partner passes to the assignees. 2 B. & C. 389. On the assignment of debts, the security, as bonds, &c. must be delivered, and notice given to the debtor of the assignment, who might otherwise safely pay the person who had without his knowledge ceased to be his creditor. 6 Ves. 410. 1 Ves. 331. Buck, 300. I G. & J. 207. 358. And notice in the Gazette is not sufficient, unless it be proved that the party to be affected by it has seen it. Buck, 25.-As to Landlord's Claim for Rent, &c before the 6 Geo. IV. c. 16. s. 74. the landlord might, whilst the goods were on the premises, distrain for any arrear of rent, see 1 Atk. 103. 1 Bro. C. C. 427. 15 East, 231; and it was considered, that if he purchased the lease at a sale under the commission, he might retain his rent out of the purchase-money, 2T. R. 603.; and if the bankrupt took a demise, and agreed to pay rent on a particular day, the landlord might distrain on that day, ib.; and payment after bankruptcy to landlord, threatening to distrain, is valid. 5 Esp. R. 200. 1 Bing. 261. But the above enactment alters the law in this respect. In case of the bankruptcy of a tenant, the effect of the assignment is suspended until acceptance of the lease or agreement by the assignees, 1 B. & A. 593.; and it does not vest a term in them, unless they do some act to manifest their assent to the assignment as it regards the term and their acceptance of the estate. The estate remains in the bankrupt, subject to the right of the assignees to vest the estate in themselves. Ib. As to what acts amount to an election to take, see 4 Camp. 368. 1 Stark. Rep. 347. 2 ib. 309. 7 Taunt. 206. 1 B. & A. 503. What not, 7 East, 335. Holt, C. N. P. 290. 3 Camp. 340. 1 D. & R. 205. 4 Camp. 368. 8 Taunt. 325. Before the above act, the lord chancellor, on petition, used to compel the assignees