case bourn all assignee of peel a bankrupt v Dodson December the that  assignment of a ship at sea for a valuable consideration may be good against  assignee of bankrupt though no possession be take thereof but if of good at  land otherwise John peel be for several year a merchant and be in possess of  two ship the Diggs and Molly send the same load with cargo in his own name and  consign to his correspondent in Virginia or Maryland for return whereof they  be to bring back cargo of tobacco hogshead of the say cargo be consign to peel  in his own right he upon their arrival possess himself of the same and enter  they at the customhouse in his own name and give his bind for payment of the  duty and lodge the tobaccoes in his own warehouse and keep the key and sell  and dispose thereof in his own name and as his property on the that of  February peel fail and a commission of bankruptcy issue against he bourn and  other be liquid measure atkins sen assignee and at the time of the bankruptcy  peel be in possession of the say two ship and all the cargo that be unsold  they be seize under the commission but the defendant insist he have a right to  the say ship and to the bankrupt effect in Virginia and Maryland for that he  have lend peel considerable sum and that on the that of may there be due to he  pound and to secure the payment thereof peel have by indenture of bargain and  sale that very day assign to he the say two ship with their tackle and  appurtenants and all other his estate and effect in Virginia and Maryland and  also several good send to Maryland on board the say ship and also to all the  tobacco and effect to be by they bring back from Virginia and Maryland in  return for the good send subject to be void on payment of the pound to the  defendant and therefore claim all the say effect the money receive from the  bankrupt estate be by agreement between the plaintiff and the defendant pay  into the bank till it appear to who the same just belong and the ship be  likewise sell and the money arise front the sale pay into the bank in the name  of the plaintiff and the defendant Dodson the plaintiff counsel insist that as  Dodson do suffer peel to continue in possession of the good it be a fraud on  the person who deal with peel and that the assignment ought to be set aside  and the defendant come in only as a creditor under the commission for so much  as he shall be able to prove and receive a dividend pro rata only with the  rest of the creditor they also argue that a mortgagee of good though he have  advance the full value for they and the day of payment be pass yet if he  suffer the good still to continue in the possession of the mortgagor be equal  a fraud as the let good lie in a vendor hand after he have make a bill of sale  or a absolute conveyance of they and then afterward become a bankrupt and by  consider the case in this light they endeavour to bring it within the that and  that clause of the statute of the saint of James the first cap and for that it  often fall out that many person before they become bankrupt do convey their  good to other man upon good consideration yet still do keep the same and be  repute the owner thereof and dispose the same as their own be it enact that if  at any time hereafter any person or person shall become bankrupt and at any  such time as they shall become bankrupt shall by the consent and permission of  the true owner and proprietary have in their possession order and disposition  any good or chattel whereof they shall be repute owner and take upon they the  sale alteration or disposition as owner that in every such case the say  commissioner or the great part of they shall have power to sell and dispose  the same to and for the benefit of the creditor which shall seek relief by the  say commission as full as any other part of the estate of the bankrupt atkins  the defendant counsel give it as a reason why Dodson choose rather the good  shall still continue in the bankrupt custody notwithstanding he have a  sufficient lie upon they that he do not care to subject himself to a account  if he have take the good mortgage into his own custody Lord chancellor this be  a case of a good deal of consequence and not without some difficulty atkins er  p the first question be as to the assignment of some ship and their cargo by  way of security for a large sum of money pound say to be lend at different  time by the defendant Dodson to peel and whether the property of the ship and  cargo pass thereby the second question whether Mr Dodson be entitle to retain  two bank note deliver to he by peel the bankrupt of pound each this money be  pay by the bankrupt a few day after the of Feb when it be allege that peel  commit the act of bankruptcy Dodson by his answer deny notice of the act of  bankruptcy Reg lib a f with regard to the assignment it be object that it be  fraudulent and do not pass the property of the good to the defendant Dodson  for the plaintiff insist this be a assignment of good without any possession  and therefore if assignor become bankrupt afterward that by virtue of the  clause in the statute of James the commissioner may sell they for the benefit  of the creditor in general the fact be the great part of peel effect at the  time of the assignment be beyond sea now it will be very detrimental to trade  as it will deter merchant from lend money if notwithstanding they shall  advance a large sum by way of mortgage the property be not alter but subject  to mortgagors creditor under a commission of bankruptcy unless the ship return  before the commission be take out and the effect be in the actual possession  of mortgagee as to the construction of the clause in the statute of the James  it be a point of very great consequence and I do not remember in this court or  while I sit in another that the construction of these clause be ever make a  point in any case as to the general case where bill of sale be make of good  and the purchaser suffer the bankrupt to continue in possession it be plain  within the letter of the statute but I do not think this can be construe to  extend to a bare loan of money upon the good by way of mortgage for the word  in the clause be good sell for a valuable consideration and valuable  consideration be most proper applicable to a absolute sale in the case of pawn  which be something like the present the pawnee have only a special property in  they in case they shall not be redeem within the time require accord to the  original agreement the defendant Dodson be not immediate to take possession of  the ship and cargo but at a future day and if the bankrupt have not a right  from the time of the agreement to exercise such a power over they atkins as he  before have but be now become subject to the mortgage then this case be not  within the clause of the statute there be nothing more common than assignment  of ship which be out upon their several voyage as a security for money and yet  the assignee do not look upon it that he have any property but the assignor  direct the master of the ship as to the voyage and every thing necessary and  if contract of this kind have be consider as fall within these clause this  case must have happen frequent and will not have be the first time of its be  make a point in the court in westminsterhall these clause have never be think  of till the case of Stephens v sole before Lord chancellor Talbot Ves post S c  July the that there a person owner of three boy belong to the river Thames  mortgage they and after he have so do be suffer by the mortgagee to make use  of they in the same manner as before for three year together and appear to all  intent the visible owner and person lend he money upon the credit of his be  the owner and therefore a very strong case and Lord Talbot upon these  particular circumstance adjudge it to be within the statute but as this be  only one authority it will not be at all proper for I to determine a case of  such great consequence to trade without through consider it for if it be a  void assignment it be void at law and then I shall not take upon I in equity  absolute to decide a matter which be proper triable at law on the other hand  it will certain be of bad consequence if I shall determine this case not to be  within the clause of the statute of the James because it must necessary open a  door to fraud for trader then may borrow money to the full value of the good  and though the mortgagee suffer they to lie in the hand of the mortgagor the  lender will notwithstanding secure the property to himself to the prejudice of  all the rest of the creditor atkins er p all that remain be whether Mr Dodson  be entitle to retain two bank note deliver to he by peel the bankrupt of pound  each now it be certain though the act of parliament of the James have provide  a indemnity for debtor to a bankrupt who pay their money to he without notice  of the bankruptcy yet that statute do not indemnify a creditor of a bankrupt  unless it appear that he have no notice of the bankruptcy at the time of  receive his money the court of law have consider this latter case as a hard  one and always hold the assignee to a strict proof of notice atkins the next  question will be In what manner it shall be try if the assignee in this case  bring a action as for good have and receive to the bankrupt use the court at  law will nonsuit they because the property be certain out of the bankrupt as  they be transfer for a just debt and therefore the proper action will be  trover because here be a tort in detain of the good though he come righIfully  to the possession of they as they be deliver to Dodson after notice of a act  of bankruptcy for from that time they become the property of the general  creditor see billon v h de ante but if I direct the whole to be try in trover  it will create a difficulty as to the two bank note and therefore it will be  better to try it upon a feign issue his lordship then direct the two follow  issue first whether the defendant John peel become bankrupt on the that of  February m or on any other and what day second whether at the time of peel  become a bankrupt the two ship Diggs and Molly and the good in the assignment  of the that of may or any and which of they be the ship good and chattel of  the defendant Dodson and if find that peel become bankrupt any other time than  that mention in the issue the same to be endorse on the postea and all further  direction reserve till after trial Reg lib a e see brown v Heathcote post rial  v bowl post N B the party afterward compromise it and the issue be never try