atkins case sir MATTIEW rial and other assignee of William harvest a bankrupt  plaintiff roll executor of jonathan Stephens and other defendant January the  that SC wh t l c that ed see Donald v suckling lr Q b cook v hem lr c p  consider in re Bainbridge ex part Fletcher Ch d l I bank lt W r see in re west  of England and S Wales District bank ex part dale   Ch d not follow on the  question of separate money fall into bankrupt estate in re hallet estate  knatchbull v Hallet Ch d see also colonial bank v Whinney App Cas in re  Richard Humber v Richard Ch d and on question of choose in action see  bankruptcy Act Vict c sacred scripture ves pl pl SC upon the construction of  James cap S determine by Lord chancellor that if a person advance money upon a  conditional sale of good and do not insist upon a delivery thereof he confide  in the credit of the vendor and not on any real or particular security and  ought to come in under a commission of bankruptcy against the vendor as much  as any other person that place a confidence in the bankrupt personal Lord  Hardwicke chancellor assist by sir William lee Lord chief justice of the court  of king bench sir Thomas Parker Lord chief baron of the court of exchequer and  sir Thomas burnet one of the justice of the court of common plea Mr justice  burnet William harvest a trader within the bankrupt act be indebt to Benjamin  and Joseph Tomkins do by indenture of the d of June demise his house brewhouse  and outhouse and copper and utensil fix or belong to the brewhouse for a term  of year redeemable upon payment of pound pound and interest on the that of  October harvest enter into partnership with Jonathan Stephens decease to who  roll the defendant be executor and the utensil and stock in trade be appraise  at pound and harvest convey one moiety thereof to Stevens they carry on the  trade joint till the that of June when harvest become a bankrupt on the that  of December harvest in consideration of pound do by way of secure the same  assign over his moiety of the utensil and stock in trade to one potter in  trust for Stevens and there be a clause in that mortgage to secure any sum  that shall be afterward lend sir Thomas reynell have enter into two bind as a  surety for harvest he on the that of December in consideration of pound assign  one seven of his moiety of the partnership stock c to sir Thomas reynell with  a defeazance to be void upon his indemnifying he against the bind the house  and brewhouse with the outhouse have be mortgage to the tomkins in for secure  pound and in this mortgage be assign over to one Baugh who in November  reconvey all the utensil to William harvest the bankrupt by indenture of lease  and release bear date the that and that of September Baugh in consideration of  the principal money by the direction of harvest assign over his mortgage to  Stevens and harvest assign over a moiety of the utensil as a collateral  security upon this mortgage pound be due so that it be plain that this  mortgage will be prefer as to the real estate to the tomkins but their  mortgage will be prefer as to the collateral security of the utensil the last  mortgage be of William harvest to his son George date the that of march of one  seven part of his stock c for pound the question be whether all or any and  which of these mortgagee will be entitle to resort to the utensil c for a  satisfaction or whether they must come in under the commission and it depend  upon this whether these mortgagee or atkins any and which of they do not so  permit the bankrupt to continue in possession as to be within the express word  of the statute of the James cap I will consider this question in three light  atkins er p first the nature of a mortgage or conditional sale of specific  good or thing in possession of which there may have be a actual delivery where  the bankrupt be suffer to continue in possession till his bankruptcy and  whether there be any difference betwixt such a mortgage when make to a  stranger or when make to a partner second the nature of three of these  mortgage to stranger as sale partly of thing in possession as utensil c and  partly of choose in action as debt and profit in trade three whether there  will be any difference as to the general rule betwixt such a mortgage make to  a partner and make to a stranger although the present question must be  determine upon the construction of the statute of the ac yet it be necessary  to consider the conditional creditor as to their debt before that statute but  it be previous necessary to clear the case of argument draw from the nature of  pawn which be foreign to the present question it be contend that pawn among  the Roman require a delivery but that mortgage do not as to the Roman law  there be a authority cite from just Inst lib title sec nam pledge appellation  she particularly remember to hold together to say queen simul etian to give up  lender maxim si mobilis sit at she queen without tradition to make naked  convention holding particularly hypothec appellation to hold together to say  if this passage stand alone it may go a great way to prove what it be cite for  but when produce authority to show that pignus be as valid without a delivery  as with one it must be allow that these passage have be so interpret that  pignus can only be of good capable of delivery and hypotheca of good not  capable of delivery roof l c S wood lib cap p dig t delivery be then not of  the essence of a pawn in the Roman law and other country adopt the Roman law  have correct this that if a pawn be not deliver it shall not affect a  purchaser for a valuable consideration but if this have be the true  distinction it will have no influence unless the Roman hypotheca and a English  mortgage be of the same nature which they be not for a hypotheca give only a  lie and no property with a right to be satisfy on failure of the condition a  mortgage with we be a immediate conveyance with a power to redeem and give a  legal property if a man give a hypotheca or pignus with a condition that if  the money be not pay at a day the pawnee shall enjoy the good at such a price  that be not in the nature of a pawn but a sale just cod l t S si farm parent  tui need lege to sell ut sive Self sive hredes the dawn buyer price whenever  well intra certan time to bring before to set up again teque prepare atkins to  give satisfaction condition dict hres buyer non to appear ut contradus fides  to make safe action prescriptis word well ex offer for sale flute to hand over  habila ration the dawn queen post offer ex bargain magnitude ex eastern farm  enemy to come up this be the description of a English mortgage in the Roman  law and as to the sale of movable cod l t S si a ten comparavi be pron   interrog  meminist it agrees together agreed ut si intra that which is fixed  time to loosen to be data magnitude sit res not bought to let go back haec  assembly write back in reply our men non jure attack say si see subtraha ut  jure rule the same remember to hold back declaration et obsignationis de  positionisque remedy contra fraud drink law tuo to meet and consider all that  can be argue from the Roman law with regard to pawn will be foreign to the  question and so will what may be argue from the English law with regard to  pawn for delivery be of the essence of a English pawn h bro Title pledge pl  Title trespass pl and r Rep and no authority contradict these resolution Leon  and Yelv be both case not of pawn but of bailments to a three person to sell  for the use of creditor and it be true that in these case the creditor will  have a interest in the performance of the contract and may sue the baillee  there be scarce any book that treat upon pawn but consider they as in the  possession of the pawnee as where it be debate whether a pawn may be use and  the difference lie down between a pawn and a distress be that a distress may  not be use because the party in that case come into possession by act of law  and in the other by the act of the party Owen raym salk clog and Bernard the  distinction between mortgage and pawn be lie down in Noy and in cro James  there be a difference between mortgage of land and pledge of good for the  mortgagee have a absolute interest in the land whereas the other have but a  atkins er p special property in the good to detain they for his security per  Fleming Ch I et all sir John Ratcliff vers Davies Yelverton the delivery be  nothing but the bare custody and it be not like to a mortgage for then he that  have the interest ought to have the money but in the case of a pledge it be  only a special property in he that take it and the general property continue  in the first owner upon tender of the money secure by the pawn by the pawner  the property notwithstanding the refusal be reduce constant to the pawner  without claim SC Bulst the next question to be consider will be in relation to  the condition of creditor where the debtor continue in possession of the good  mortgage this be fraudulent at commonlaw and the Elizabeth cap sec provide  against it that it shall be void there be no distinction whether the sale be  absolute or atkins conditional court of equity and jury be to consider upon  the whole evidence whether the conveyance be make with a view to defraud or  not this act do not extend to conveyance upon good consideration unless the  circumstance have the appearance of a design to deceive creditor but where the  good or deed have be leave with the vendor so notorious as that there can be  no design to defraud this have never be look upon as fraudulent twine case    be a lead case upon fraud on this act the transaction there be hold fraudulent  though upon good consideration for that it be not good fide because the vendor  be leave in possession and trade upon the credit of the good sell it be hard  to assign a reason why a buyer shall leave good in the hand of the seller  unless to give he a false appearance of circumstance and credit it be insist  that there be several case that have make a distinction as to the possession  after a conditional sale betwixt such conditional and a absolute conveyance of  land and good I will show that the case of land be not applicable Bulst Ro Rep  resolve the f the grantors possession of the land be not fraudulent but Lord  coke say that if the grantor have continue in possession of the original lease  that will have make it fraudulent possession can be no otherwise a badge of  fraud than as it be calculate to deceive creditor as to the possession of good  I have no way of come to the knowledge of the owner but by see who be in  possession of they but the possession of land be of a different nature for a  man may be in possession of land as a tenant at will as a mortgagor be to the  mortgagee before the condition break a purchaser may call for the title deed  and need not be deceive unless he will but this be not the case of good where  they be leave in the possession of that c seller a second mortgagee shall  never be compel to discover his title will head v Egerton because the first  mortgagee have contribute to draw he in by leave his title deed in the  mortgagors hand there maybe a case as in Eq Cas Abr pl where leave title deed  with the mortgagor will not be construe as a badge of fraud on account of the  particular circumstance better v Russell vern SC see also the case of Tourle v  rand bro Charles Rep a case be cite bring Ch bucknal v Roiston there a  supercargo of S have ship good of his own borrow money at per cent and make a  bill e of the good to the plaintiff the good be earn and sell abroad and upon  a question between the particular vendee of these good and a judgement  creditor of the vendor Lord Cowperdecreed in favour of the vendee he take no  distinction betwixt conditional and absolute sale but find his determination  upon the fairness of the transaction his word be that here be no possession  calculate to acquire a false credit which be a plain declaration that a  possession so calculate as to acquire a false credit will have make the  transaction void there be a further say in the report that it be true in case  of a bankrupt such keep in possession after a sale will make the sale void  atkins this must mean such possession as will give a false credit and all that  be lie down there be that a possession to acquire a false credit will make  such a transaction void otherwise not maggot and will raym and case in the  time of king William the three from both these report it appear that the case  be so defective state that the court can form no judgement upon it but send it  back again for a new trial and the dictum of Lord chief justice holt be  against the case for which it be cite no atkins er p notice of the statute of  bankrupt be take in the whole case but holt take it up upon the fraud and give  it as his opinion that it be not fraudulent and it be very clear that it be  not the distinction betwixt a conditional and absolute sale which weigh with  he at all he distinguish betwixt a bill of sale to a landlord and to any other  creditor so that it be his opinion that it be not fraudulent in the case of a  landlord from all these case it appear that upon the construction of the  statute of the that of Elizabeth there be no room to make a distinction  betwixt conditional and absolute sale of good if make to defraud creditor but  a court or jury be leave to consider of this from the circumstance of the case  the legislature have think necessary to describe what good be a bankrupt or  not and for this purpose the saint of James I be make and by that act the ten  section which be the preamble to the eleven section though it be print with  the former section by mistake say 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 now mere consider thing in possession the  mischief be that these person before the act make over their good and yet be  suffer to continue in possession as if the good be still their own and this be  the thing intend to be remedy and there be no distinction make here between  absolute and conditional sale then consider the enact clause be it enact that  if at any time hereafter any person or person shall become bankrupt and at  such time as they shall so 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 u  on they the sale alteration or disposition as owner that in every such case  the say commissioner shall have power to sell and dispose the same as full as  any other part of the bankrupt estate it be not to be doubt but as the  preamble make no distinction betwixt absolute and conditional sale so the  enact clause will take in the one as well as the other the only thing contend  for be whether the mortgagee shall be consider as the true owner or the  mortgagor and there be no atkins doubt the conditional vendee be the true  owner or proprietary and there be no reason to make a distinction between a  absolute and conditional vendee but by confound the difference betwixt pawn  and mortgage there may some doubt arise if this be the case of a pawn as in  the ease Bulstr but it can be doubt in the case of a mortgage for it be a  immediate sale to the mortgagee and to the mortgagor may buy it again or  redeem by favour of a court of equity yet till then the vendee be the absolute  proprietor on a pawn the pawn be complete by a delivery but on a conditional  or absolute sale the sale be complete by the contract and the party be entitle  to a delivery of the good as soon as he have pay the price salk dyer if  therefore a conditional vendee pay money and do not insist upon a delivery of  the good he confide in the credit of the vendor and not in any real or  particular security and ought to come in under the commission as much as any  other person that place a confidence in the bankrupt and not in any other  security as there be no authority to warrant a distinction betwixt absolute  and conditional sale so there be a case that destroy it Stevens v sole in  Chanc Trin ante Ves a trader within the statute have possession of a leasehold  estate assign it and make a bill of sale of three boy redeemable in may he  become a bankrupt the defendant be the assignee and the plaintiff bring a bill  to be pay his principal c or to foreclose and it be admit that the leasehold  be insufficient to pay the plaintiff but as to the boy it be insist that as  the bankrupt have continue in possession of they they be liable to the  commission Lord Talbot decree upon this admission that there shall be a  foreclosure as to the leasehold and that the plaintiff shall be admit under  the commission for so much of his debt as the leasehold will not satisfy and  decree that the money arise by the sale of the boy shall be apply to the  payment of the creditor under the commission but it be insist that there have  be a subsequent case contrary to this bourn assignee of peel v Dodson Dec in  chancery ante Ves it be atkins er p sufficient to say there be in that case no  judicial determination Lord chancellor do then consider the inconvenience that  may arise if it shall be hold that ship at sea of which no possession can be  deliver till their return shall be subject to a bankruptcy there be another  case before Lord Hardwicke October brown v Heathcote ante more full state  William and wile partner indebt to Heathcote in pound assign their ship to he  and deliver over the charterparty invoice c William become a bankrupt and the  ship come home and it be contend that as here be no delivery of the possession  it be within the statute but Lord Hardwicke be of a contrary opinion as every  evidence of ownership be deliver over to the assignee and all mean be use to  obtain a actual delivery as soon as the ship come home and that the statute be  design against those only who have neglect some act to put themselves in  atkins possession of the good convey and by that mean have lead other people  into a deceit that there couldbe no consent or dissent as to the possession of  ship at sea and so not within the word of the act nor within the reason of it  which be to hinder person from gain a false credit for here the owner have  deliver over every evidence of ownership and can not prove by any other mean  that the be owner shall think that the deliver over of the muniment be a  deliver of the ship as the delivery of the key of a warehouse be a delivery of  the good in it now to apply this to the two mortgage that of Tomkins in and  that of Stephens in these mortgage be of a lease with fixture and movable good  as to the fixture no body can remove they till the mortgage be satisfy for  though a lessee may remove fixture during his term yet if he lease his whole  term he can any more than a lessor during the term and a sheriff may take they  in execution salk pool case as to the utensil not fix they will come under the  same consideration as good grant without a delivery of possession a lease of a  house with movable be only a gift of the utensil during the term Spencer case    and die b as to the fixture we need not consider they with regard to the  mortgage in because they will be exempt by the first mortgage but as to the  utensil not fix they will stand in the same condition as other a partner be  possess per my per tout west v skip Ves and therefore no actual delivery can  be make to he but the offence against the statute be permit one to continue in  possession when he have sell all the good to another who be thereby entitle to  the possession of the entirety and Stevens permit harvest to continue as half  owner if they be the case mention in the statute as to the mortgage of  oneseventh share of the bankrupt moiety of the partnership stock c in trade  before I go into the consideration of this I will consider the case of a  assignment of a mere choose en action the simple case be of a bind such choose  en action be assignable in equity and not at commonlaw the reason be because  the assignor can furnish the assignee with all the mean of reduce it into  possession for he can let he sue in his name why therefore be not the mean of  reduce any thing into possession as necessary as the delivery of the thing  itself in the other case suppose a trader assign over a bind and the assignee  permit he to keep the bind in his possession why shall not that be within the  mischief of the statute a bind debt be a chattel though some doubt have be  make of this but the doubt arise from hence not that they be not chattel in  their nature but that they be not grantable to a atkins common person but if  they be grant to the king they will pass as chattel bro prerogative Inst    ford and sheldon case the resolution there be that personal action be as well  include within the word good as good in possession therefore if a bind be a  chattel and the assignment be a conveyance of it the bind be leave in the hand  of the assignor be in his possession and he may assign it to a second assignee  or may show it to any creditor as a evidence of so much money owe to he and  deceive he by it and as he can have it by no other mean but by the consent of  the true owner in equity he may thank himself for it atkins er p in mortgage  of land possession need not be deliver but the title deed must and so shall  the deed and security of choose in action it be say that a debt in trade be a  mere choose in action and will pass by a assignment even the day before the  assignor become a bankrupt as in the case of small and oudley wms Mr justice  burnet state this case and the reason of the judgement a observation be make  that this be a assignment of a share in another man trade and not in his own  and the only reason of it may be that here he can give no possession and a  stress be lie upon this every man in his own trade be in possession of the  choose in action that arise from his own good and can put another in  possession either by give he the security or by admit he a partner for such a  share and it be no uncommon thing to argue against assignee of a bankrupt from  the nature of the good in respect to the choose in action arise out of they  and also in respect to the new good or profit and if this kind of argument  will prevail against that m it ought to prevail in their favour suppose good  be consign to a factor who sell they and break the merchant for the money must  come in as a creditor under the commission but if the money be lie out in  other good these good will not be subject to the bankruptcy salk suppose  instead of sell the good for ready money he sell for money Payable at a future  day and break before the day if the assignee receive the money it will be for  the use of the merchant or suppose that the factor have take note for the good  if his assignee receive the money upon these note it will be to the merchant  use this be determine in the court of common plea salmon and Scott hill g by  variety of reason the rule will hold here that as the specific good by be  leave in the bankrupt possession will be subject to the commission so must the  profit be in choose in action arise from these good and therefore these  mortgagee can come in only as general creditor as to the last point with  regard to the assignment of harvest whole moiety of the partnership stock in  trade to potter in trust for Stevens the other partner it will either fall  under the consideration of a assignment to potter as a distinct person or  atkins of a assignment direct to Stevens and the consider it in either of  these light will not vary the determination of the case for consider as a  assignment to potter it be difficult to say why harvest after he have convey  over all his share of the partnership trade shall continue still act as the  owner of it unless it be do to acquire a delusive credit and consider as a  assignment to Stevens his permit harvest to continue in possession with he  will be construe as a fraud against other person I apprehend that Stevens be  the true owner of this moiety and have permit the bankrupt to continue in  possession of it as if he be the true owner and the harvest have take upon  himself the disposition of this moiety as the owner thereof and that this come  within the word mischief and intent of the statute of the James and if it be  not to be so construe what a door will it open to fraud but it be insist that  partner in transaction with each other have the partnership stock for a  security but not more or otherwise than in the case of stranger for whether a  partner or a stranger lend money to the partnership they be to be first  satisfy out of the partnership stock Ch Rep Com craven all con knight all car  vern and and will which be as strong as any negative case can be he then state  the case and say there the executor insist upon a right to retain as executor  but not as partner it may be say that it will belaying trade under a great  restraint if a trader can mortgage his good or stock without quit trade and to  be sure case may occur in which there may be a inconvenience but the  inconvenience on the other side strike I more strong a man ought to quit his  trade when he have no stock to carry it on for if it be once establish that  the friend of a sink man may secure themselves by mortgage upon every thing  that he have without run any risk commission of bankruptcy will be very  useless thing I must therefore conclude that those mortgage of good c capable  of a delivery will be liable to the commission by force of the statute of  James sir Thomas Parker Lord chief baron make four question saint whether any  mortgage or sale upon condition be within the statute of the James atkins er p  dly whether mortgage or sale upon condition of specific chattel be within the  statute dly whether mortgage c of particular part or share of trade be within  the statute thl that whether the mortgageof harvest moiety to potter be within  the statute he lie the case of pawn and hypothecation out of the question  fraudulent deed he say may be avoid at commonlaw atkins by the Elizabeth cap  they be also make void with a proviso that this do not extend to conveyance  make upon good consideration and good fide he cite twine case to show that the  transaction there be not good fide he then read the preamble to the clause and  the enact clause of the James this clause though it do not speak of fraud be  intend to prevent that false credit which be the destruction of trade and mean  to give a further benefit to the creditor of a bankrupt than be give to they  by the Elizabeth cap it extend to conditional as well as absolute conveyance  or else a bankrupt may mortgage for almost the whole value the principal  difficulty upon this case arise upon the word of the statute by the consent  and permission of the true owner and it be insist that they be only applicable  to absolute and not to conditional sale because a mortgagor have a right to  redeem be consider as the true owner but the word be put in opposition to the  false and pretend ownership the bankrupt appear to have the true ownership of  the good by the possession and if a contrary construction be to take place it  will be fatal this be determine in Stevens v sole ante the that of July the  second question be whether mortgage or sale upon condition of specific chattel  be within this clause it be allow to be out of the question that the stock  mortgage undergo change for there be no doubt but the produce be subject to  the mortgage of the stock itself saint it may be a question whether the  bankrupt good only or the good of other person leave with he for safe custody  or sale be within this clause dly whether any and which of the good be within  this clause the enact clause speak of any good the preamble speak only of the  bankrupt own good it be lie down Jo palmer on the construction of the statute  of the Elizabeth that the preamble shall not restrain the enact clause but I  take it to be agree that if the not restrain the generality of the enact  clause will be attend with a inconvenience the preamble shall restrain it and  this be the case here for otherwise merchant can not correspond or carry on  their business without great danger and great difficulty the case of LApostre  v Le Plaistrier I will be right determine I have my account of it from a short  note of sir Edward northey see post Ves post vol so in the case of Godfrey v  Furzo will where Lord king take this difference when a merchant abroad consign  to b a merchant in London for the use of b and draw on b for the good though  the money be not pay the property vest and they be the good of b she merchant  here and liable to atkins his debit but where good be consign to a factor as a  servant no property vest in he nor will the good be liable to his bankruptcy  ex part Dumas ves post SC mace v cadell Cowper ex part marsh saint of August  ante S c a bankrupt receive pound in money good and piece of plate the  property of his wife and by deed before marriage agree that the same shall be  secure to trustee for her separate use as if she be a widow and he give a bind  and warrant of attorney to confess judgement and convey the plate to trustee  in trust for the benefit of the child by the former husband and the wife  appoint it by her will accord it be order that the child the petitioner shall  be admit to come in under the commission for the pound and that the plate in  the custody of the bankrupt shall be deliver to they for that the money have  no earmark can not be follow but the plate may in copeman v gallant I will I  must own that Lord chancellor Cowper explode the notion of the preamble govern  the enact clause and go upon atkins er p another reason which be that the  assignment be with a honest intent and to pay the debt of the assignor I have  great honour for Lord Cowper but though approve of the decree I can subscribe  to the reason of it for notwithstanding a honest intent will entitle a person  to all due regard yet a honest intent can take a case out of the clause of the  statute suppose a person act by commission only can there be any pretence to  say that person who advance their money do advance it upon the credit of his  stock for to he the credit be give so where a person act partly upon his own  stock and partly as a factor dly whether any and which of the good mention be  within the clause and whether any and what possession be require to be deliver  the good be utensil hop malt fixture to the freehold and stock in trade as to  the fixture they be like tree hob p Lord chief justice Hobart say that by the  grant of the tree by a tenant in feesimple they be absolute pass away from the  grantor and his heir and vest in the grantee and go to his executor and  administrator be in the understanding of the law divide as chattel from the  freehold and the grantee have power incident to and imply from the grant to  fall they when he will without any other licence Owen a action be maintainable  there for the tree be reunite to the land by the purchase of the inheritance  to apply this the fixture have be several time mortgage distinct from the  freehold but be all revested and reunite after that and there be no occasion  to deliver they but they will well pass by the mortgage of the freehold to the  tomkins I admit the case in salk pool case where it be lie atkins down that  these thing may be take in execution but I think a distinction be to be make  for here they can not be remove by harvest or take in execution by reason of  the mortgagee interest and therefore I think the copper and fixture be liable  to the tomkins mortgage with regard to the utensil c not fix where good  mortgage be capable of a actual delivery there ought to be a actual delivery  but if they can be deliver at the time of the contract it will be sufficient  if the mortgagee have the document and muniment deliver to he in order to  reduce they into possession the delivery of a key be the delivery of the  possession accord to the civil law dig t l p vide roof and the case of brown v  Heathcote mention by Mr justice burnet turn upon this principle ante it be  object that the undivided share of the stock c in trade will not admit of a  separate property and separate possession and therefore that the possession of  the mortgagor be the possession of the mortgagee it be true that partner have  a joint stock but their possession be several and the interest be to some  purpose several as if a sheriff seize a joint stock for a separate debt he can  sell the whole Mod show salk Heydon v Heydon I will now consider the case cite  for the defendant raym maggoty v mill the clause of the statute of the James  be not consider in this case and one will imagine from Lord chief justice holt  expression that if the sale there have be make to any other person than the  landlord it will have be fraudulent raym coal and Davis this case admit of the  same observation as the other and I have some doubt whether it be not compound  with a trust and beside the case be not within the James because the sale be  by the sheriff and not by the party so that he do not take upon he the sale  and disposition as owner small v oudley will in this case the master of the  roll distinguish betwixt a man own trade and the trade of another person and  the reason of that be because the bankrupt be not in possession and can not  deliver the good and unless they can pass by assignment they can not pass at  all bucknal v Royston bring Ch be a will of sale of the produce of a cargo go  to sea and it depend sole on the law of merchant for there be no bankruptcy in  that case and Lord Cowper say that in the case of a bankrupt such keep  possession after a sale will make the sale void against creditor so that this  be a authority rather against the defendant than for they in the present case  the possession of the good be not deliver though capable of delivery and the  bankrupt have the evidence of the partnership in his hand and act atkins er p  as owner and the mortgage be a secret to every body but the party so atkins  that all the circumstance mention in the act concur to bring this case within  it and consequent I think these be thing liable to the bankruptcy the three  question be whether sale or mortgage on condition of particular part or share  of trade and the produce of trade be within this clause I shall confine myself  here to thing in action as such mortgage be like so much of the balance  mortgage it be object that this clause do not extend to thing in action  because it speak only of thing in the possession of the bankrupt at the time  of the mortgage but chattel comprehend thing in action Slades case   a thing  in in action be good and chattel in a person attaint light Rep   if good and  chattel will comprehend thing in action in the construction of any act of  parliament they ought much more to do so in this for otherwise a trader may  cheat his creditor by assign over such thing and this be enforce by the first  clause of the act where it be provide that every thing shall be construe most  beneficial for the creditor it be further object that thing in action be not  assignable but in equity and do not admit of a delivery if a bind be assign  the bind must be deliver and notice must be give to the debtor but in  assignment of book debt notice alone be sufficient because there can be no  delivery and such act be equal to a delivery of good which be capable of  delivery roof l t S par say thing incorporeal such as debt can proper be  deliver this be to show the nature of assignment of debt by notice to the  debtor this clause therefore extend to thing in action and all have not be do  that may have be do by the assignee to vest the right of they in himself and  to take away from the bankrupt the power and disposition of they for no notice  have be give to the debtor the four question be whether the mortgage of  William harvest moiety of the partnership stock and trade be within this  clause and this be the most difficult question it be object that though potter  do not take possession yet he be mere a nominee for Stevens and that Stevens  be partner before be in possession as partner per my et per tout but the  question still remain whether when Stevens become entitle to the whole stock  he shall not have take the sole possession exclusive of harvest in order to  take the mortgage out of the statute and I think he ought to have take  possession of the whole for accord to the fact in this case harvest at the  time of his bankruptcy continue and appear to be in possession of one moiety  of the partnership stock c by the consent of Stevens but it be say that the  law will construe Stevens to be in possession accord to his right atkins there  be no reason for such a construction as Stevens suffer harvest to continue to  act inconsistent with his right another difficulty be that the partnership  stock be in the first place liable to the partnership account accord to the  authority of the case of pike v Crofts wms and that this be no more than apply  the partnership fund which be to pay the partnership creditor to the use of a  partner who have make they a satisfaction another way as where one of the  partner be charge with more than he ought to be equity give he a lie on the  partnership stock to reimburse himself but this be not applicable to the  present case because harvest do not borrow any of the partnership money or  imbezil any of the partnership effect nor be the transaction a partnership  transaction or the money lend upon the partnership account and this principle  of equity have never be extend d to private loan but it have always be confine  to partnership transaction and I think it proper it shall be so confine Lord  chief justice lee agree with Mr justice burnet that these security be to be  consider as mortgage and I shall consider they in that light at commonlaw it  be leave to the jury to consider whether conveyance of this sort be fraudulent  against creditor or not this case must be determine upon the statute of James  the that of Elizabeth be only declaratory of the commonlaw and as all the case  upon that statute have be full answer by the chief baron and Mr justice burnet  I shall say nothing more atkins er p upon these case or upon that statute but  shall confine myself to the saint of James because I think that there the line  be draw and the fixed fine be to be find there the question will be saint  whether the mortgagee be not the true owner to who there shall have be a  delivery dly whither the debt and choose in action shall not have be deliver  as far as they be capable of delivery dly whether Stevens have have such a  possession as will exempt he from be consider as a owner by who consent the  bankrupt have have good and chattel in his possession and take upon he the  disposition thereof by good and chattel I mean such as be fix to the freehold  and may be sever when the mortgage be satisfy the general preamble to this  statute say that several defect have be find in the former statute and that  one of they be in the power give to the commissioner for the discovery and  distribute of the bankrupt estate the particular preamble to this clause  recite that 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 the clause now in question be the  provision against this mischief and every word be to be consider that case be  within atkins the preamble for the bankrupt have conl veyed the good to the  mortgagee and as this fall within the word of the preamble there be no  occasion to give any opinion whether the preamble be to restrain the enact  clause or not by the Elizabeth cap there be a express proviso that it be not  to extend to conveyance good fide and this be the difficulty for the  commissioner to discover I apprehend that the direction there give that if any  person shall become a bankrupt and have in his possession good c be to remedy  the inconvenience that arise in injury upon the former statute whether the  sale be good fide or not by make the repute ownership of the bankrupt the real  ownership in he for the benefit of his creditor because the true owner suffer  the bankrupt to become the repute owner he deprive himself of the benefit of  his conveyance and the bankrupt have gain a credit by his mean and hurt his  other creditor he shall be inno better condition than they be be the mortgagee  then the true owner the James S describe the mortgage in these word if any  person that become a bankrupt shall convey or assure c any land tenement  hereditament good chattel or other estate unto any person upon condition or  power of redemption at a day to come by payment of money or otherwise this be  the description that the statute have make of a mortgage not only of land but  of good upon condition   light a if a man make a feoff in fee upon condition  that the feoff shall pay the feoff his heir or assign pound at such a day and  before the day the feoff make his executor and die the feoff may pay the same  either to the heir or the executor for the executor be his assignee in law to  this intent but if a man make a feoff in fee upon condition that if the feoff  pay to the feoff his heir or assign pound before such a feast and before the  feast the feoff make his executor and die the feoff ought to pay the money to  the heir and not to the executor for the executor in this case be no assignee  in law and the reason of this difference be give in the book that the feoff  have but a bare condition and no estate in the land which he can assign over  but in the other case the feoff have a estate in the land that he may assign  over which be in other word say that the mortgagee be the owner and have the  interest in he and cro cite by Mr justice burnet as to the difference between  a pawn and a mortgage go to the same matter the difference take betwixt  conditional and absolute sale and the case thereon have be observe upon  already I shall only mention one of they stone and Grashon Bulst that case be  a condition upon a future consideration the word of Lord coke which be rely  upon be that the possession of the mortgagor be not fraudulent but if it have  be a absolute conveyance it will have be fraudulent atkins I look upon this  case to have be determine entire upon the statute of Elizabeth c and the  commonlaw the plan of which statute differ from that of the atkins er p James  it be against fraudulent conveyance with a proviso in favour of conveyance  good fide whereas the a et of the James suppose a fair conveyance but deprive  the party of any preference because he do not give proper notice of his  conveyance and it seem to I that the case upon this statute be more like the  case that may happen upon the register act where a person do not register and  so lose the priority of the security so here the donee be not to suffer the  donor to continue in such a possession as be prescribe against by the act and  though the case cite be not material to the point in question yet I think  nothing of what be say in that case establish a difference betwixt a  conditional and absolute sale yet it be material that a mortgagor who continue  in possession be before the condition break tenant at will to the mortgagee  which show that the mortgagee must be consider as the true owner of the array  as to the other case cite to establish this difference betwixt conditional and  absolute sale I shall not go over they again because they have be full answer  Stevens v sole ante that of July be a case in point on a mortgage of a  personal thing and Lord cowpers say in the other case be a authority upon this  question though upon another point for he say in Bucknall and Royston bring Ch  that such a keep possession after a sale as be describe by the James which be  a possession with the liberty of the dispose the good as his own will make the  bankrupt sale void against his creditor by the statute this case therefore  must be consider as a authority to the same purpose with that determine by  Lord Talbot and both determine the question with regard to specific good I be  of opinion it will be the same as to the share of the partnership stock partly  in possession and partly in action and as to all choose in action as debt  capable of be assign in a court of equity some book indeed as Swinb p edition  the that seem to countenance a opinion that good do not include bind c for  notwithstanding he say that by good the civil law understand not only thing in  possession but also thing for which a lawful action may be have yet in the  same page he lie it down that by the law of this realm the word good be  otherwise understand and never include thing which be of the nature of  freehold nor thing in action as a debt upon a promise or obligation see  chapman v heart Ves more v more bro Charles Rep so cayles case   carry some  appearance of the like opinion where it be say that a innkeeper be answerable  for the loss of a bind be oblige to keep the good and chattel of his guest for  though it be there say that good and chattel do not proper comprehend charter  and evidence concern a freehold or atkins inheritance or obligation or other  deed or specialty be thing in action and yet in this case the writ against a  ostler or innkeeper be expound to extend to they I apprehend that these  opinion be ground upon the notion that choose in action do not pass even by  statute any more than u hey be grantable by a bargain and sale c but there be  so many authority to contradict they that take that point to be settle a  corporation can take a recognizance or obligation in their public capacity  because they can take a chattel catalla comprehend a right of action and be  the only word in the statute to give this right   p b ford and sheldon case  this point be in question whether choose in action come under the word good  and it be there say that personal action be as well include within this word  good in a act of parliament as good in possession if good and chattel in the  statute include choose in action all thing arise from the sale of the joint  stock be subject to the assignee as they follow the nature of the good  themselves and Mr justice burnet have cite case to show that they be so where  the thing can be discover Swinb that edition be upon the same foundation if a  man devise his movable good to b and his immovable to c upon a question how  the debt shall go he say those debt which do arise by occasion of the thing  movable and for the recovery whereof there lie a action personal belong to  that person to who the testator do bequeathe his movable good which show that  the produce of the good be of the same nature with the good themselves as to  stevens mortgage it be make to potter in trust for Stevens it be to be  consider as a mortgage to Stevens and as to the objection that Stevens be in  possession want no new possession to be deliver the answer have be give that  harvest have the possession with the consent of the true owner which he ought  not to have have atkins er p cross v pike will be the case that be call a  negative one though this have be no where determine yet one may use a citation  from a civil law book not as a authority upon which a judgement be to be find  as it have not be receive here but as the opinion of learned man and for this  say he cite Blackborough and Davis from a manuscript note where Lord chief  justice holt advance the same thing I shall therefore mention roof lib foe  where he say debt owe by the partnership and their other charge be to be bear  out of the common stock otherwise as to the money borrow by a partner which  have not be apply to the common stock I mention this to prove that the  partnership stock be no further subject to debt from one partner to another  than as the money have be apply to the partnership trade atkins upon the whole  the statute be the rule to be follow in this case the intent of it be to  prevent bankrupt from acquire a false credit and to punish accessary by the  loss of the priority of their debt whether this be a wise provision or not be  not for we now to determine it must be follow as long as the act continue in  force Lord Hardwicke chancellor this be a question of great consequence I will  endeavour to reduce the ground I go upon to some general head saint whether  any mortgage or conditional disposition or conveyance of any good and chattel  be within the James c S dly if any be whether the present mortgage and which  of they be so dly whether the mortgagee of the moiety of the partnership stock  c be within the act saint whether any mortgage or conditional conveyance of  good be within the act under this general question I shall not enter into a  particular disquisition of the two point make at the bar saint if the enact  clause extend to all good in the custody of the bankrupt whether his own  original or not or whether it be to be restrain by the preamble to good only  that be original the bankrupt or dly whether choose in action be within the  clause for as to the first the chief baron have enter so far into the  construction of it as not to leave any room for doubt however let the  construction be what it will the present case as to this point be within the  act because it be not dispute but that all the good here in question be  original the bankrupt and be mortgage by he but still in this respect I shall  not scruple to declare that I be strong incline to be of opinion with Lord  chief justice holt and my Lord chief baron that this clause be to be restrain  by the preamble and differ from Lord Cowper in the case of copeman v gallant I  will so ante Ves Lord Hardwicke seem also to have be of the same opinion in  west v skip Ves see crespigny v Wittenoom durn and east as to the other point  it have be full clear up that choose in action be proper within the  description of good and chattel in this clause but I will add one argument it  be that the construction which have be put upon this clause be support by the  next immediate precedent clause in the act it relate to bankrupt who by fraud  make themselves accomptants to the king to defeat their creditor where there  be a power give to the commissioner to dispose of all land tenement  hereditament good chattel and debt of the bankrupt so extend to and for the  use of the creditor and yet when it come to the provision it rest entire upon  the word land tenement good and chattel and be design to comprehend all kind  of personal proper whether in possession or action only atkins in   ford and  sheldon case it be lie down that in a act of parliament mean the word good and  chattel take in choose in action and the contrary opinion seem to have arise  upon question on grant and bargain and sale by which they can not pass but a  act of parliament which may pass any thing will take in the whole the aim of  the legislature in all statute concern bankrupt be that the creditor shall  have a equal proportion of the bankrupt effect as far as possible and it be  intend that this act shall be construe beneficial for the general creditor and  it be so declare in a unusual manner in the first clause of the act atkins er  p the general view of the provision now under consideration be to prevent  trader from gain a delusive credit from a false appearance of their  circumstance to the mislead and deceit of those who shall trade with they and  the legislature think they have do this by subject all thing remain in the  possession of the bankrupt to the creditor under the commission because where  the vendee leaves the good buy in the possession of the bankrupt he confide as  much in the general credit of the bankrupt as that creditor who have take only  a bind or note in such case the bankrupt have it in his power to sell all the  good the next hour and the vendee or assignee can not claim they from the  buyer but can only have a personal remedy against the bankrupt all this hold  as well in the case of conditional as of absolute sale and if the court shall  make a different determination it will be contrary to the case of Stephens v  sole determine by Lord Talbot and to Buckland v Royston by Lord Cowper and to  the imply opinion of the last in copeman v gallant I choose to forbear observe  upon the word of the clause because that have be do already the legislature  have explain it be sense by put the word true owner in opposition to the  repute owner the d question be whether any and which of the mortgage be within  the statute accord to the authority of the case which have be mention the  mortgage of the that Dec and of he that and that of September and so much of  the assignment to Stevens as relate to the utensil not fix to the freehold and  also the mortgage of the that of march be within the statute and make void by  it if it be to be lie down that a share of the partnership trade c mortgage to  a partner be not necessary to be deliver it will let in all the inconvenience  which be to be prevent that this statute atkins as to choose in action equity  ought to follow the law if it do not infinite mischief will follow it be easy  to turn a legal into a equitable interest and if parliamentary provision as to  a legal interest be not to be follow as to equitable interest it will defeat  the act thus upon the Popish act though penal the consideration and rule be  the same in equity as at law it be say that the mortgage to potter for the  benefit of Stevens must be consider as a mortgage to Stevens and it may be  general right to consider it so though yet as a judge in equity I be incline  to carry it far than the judge at commonlaw have do for whatever interest pass  of the personal thing pass in law to potter and if the case have be at  commonlaw a court of law will not have take any notice of the trust for  Stevens and then by the statute this assignment have be void at law against  the commissioner and a court of equity will never set it up here and therefore  I make a difference betwixt such thing as be assignable only in equity give no  title to potter at law for as to these the mortgage be to be consider as be  make direct to Stevens but as to those thing in which a interest pass at  commonlaw to potter I think potter be to be consider as have the legal  property as to the question whether partnership stock be to be first liable to  the debt of the partner it be never carry further than to debt contract  relative to the partnership either after the bankruptcy or death of one of the  party where a partner lend money to another general and it be not enter in the  partnership book it be say he gain a specific lie upon the share of the  borrower and shall be prefer to separate creditor but I find no foundation for  this after a bankruptcy nor after the death of a partner where his effect have  become subject to the rule of distribute asset what equity there may be  between partner themselves on settle a account be another thing Crofts vers  pike wms be as strong a negative case to this purpose as can be all that be  contend for there be that he may retain as executor if it shall be determine  that one partner shall gain a specific lie by lend money to the other upon the  partnership stock it will open a door to great fraud and give a shock to this  act which be make on purpose to prevent a false and delusive credit I will  take notice of one thing mention by Mr justice burnet and the chief justice it  have be say in this cause that great mischief may arise to trade and credit  atkins er p from make security of this kind void because it may prevent person  from use their credit in trade and that they will not be able to make a  security without expose their circumstance to the world which may hurt their  credit on the other side it have be argue that a delusive credit be still of  more dangerous consequence atkins I will not say but some inconvenience may  arise on each part but agree with the chief justice that as it be a law it  must be adhere to and we can depart from it if any inconvenience do arise it  be for the consideration of the legislature whether it ought to be allow or  not but this I will say that very great inconvenience may arise by give a  oppor tunity to people to make such security and yet appear to the world as if  they have the ownership of all those good of which the that be in possession  when perhaps they have not one shilling of the property in they and further I  will venture to say that it be the design of the act of parliament to prevent  this for the act be make in the simplicity of former time long before those  large and airy notion of credit prevail which have be since introduce this act  be a law and I concur with my lord the judge in the opinion that they have  give and the construction that they have put upon it and do therefore  determine that these mortgage and security be not a lie upon the bankrupt  estate Edward v Harben durn east Bamford v baron ibidem see also Falkner v  case bro Charles Rep durn east Rep February the that the cause come on again  for direction and a question arise whether a debt can be set off within the  provision of the statute of bankrupt Ves SC S p Lord chancellor say that under  the act of the that of George the second person may set off debt as that act  extend to all mutual debt though independent of and not relative to the mutual  credit between the bankrupt and other person in the course of trade and though  the debt be of such a nature as can not be bring into a general account billon  v hide ante