atkins case brown assignee of roger williams a bankrupt v HEATHCOTB and martin  October the d r W and his partner give a bind to h for pound and the same d v  by deed assign to or order the good in two ship then at sea and also bill if  lade and policy of insurance contain the say good as a collateral security the  latter endorse to h the former not the bill bring by the assignee of r W now a  bankrupt for these good insist that r W act as the visible owner of the ship  and cargo be not put into the possession of h and therefore the plaintiff  entitle thereto for the benefit of the creditor at large the court of opinion  that every thing which can show a right to the ship and cargo be deliver over  to h W can no long be say to have the order and disposition of they and  therefore not within the meaning of the James cap and consequent h have a  right to retain the ship and cargo till the principal sum of pound and  interest be satisfy so ex part matthews Ves Atkinson v malings durn east  Lempriere v pasley ibidem ex part Balson bro Charles Rep by if the creditor  suffer to the ship to come back and go upon another voyage ex part matthews  Ves hall v Gurney cook b law vide ex part Stadgroom Ves Jun Roger William and  his partner Jeremiah wile give a bind to the defendant Heathcote for pound and  on the same day execute a dare of assignment by which it be agree if default  shall be make in payment of the money advance by Heathcote William and wile  shall make over to the defendant Heathcote or order the good in the two ship  Samuel and Molly and whether Billander together with the bill of lade which  may be the proceed of the return of the say good and cargo for any port in  England and that shall be consign to William and wile and that they shall put  Heathcote in possession thereof and they also covenant that after receive  advice from beyond sea of any good that they will acquaint the defendant  Heathcote with it atkins er p and empower he to dispose of the same and keep  the money arise from thence in satisfaction of his bind and if there shall be  any overplus to pay it to William Roger William do accord assign over to the  defendant Heathcote thirteen bill of lade and several policy of insurance  contain the good in the ship Samuel and Molly as a collateral security for the  sum of pound the latter be endorse to the defendant Heathcote but the former  be not at the time of these transaction between William and Heathcote the ship  be at sea in a voyage to guinea the bill be bring for these good by the  plaintiff as the assignee of Roger William who be now become a bankrupt the  assignment to Heathcote bear date the that of Jan the ship Samuel and Molly  come home the that of July the commission of bankruptcy against William issue  the that of October Roger William be find a bankrupt as far back as November a  separate commission of bankruptcy have be also take out against Jeremiah wile  the counsel for the plaintiff insist that this assignment to Heathcote will  not bind the creditor under the commission as Roger William the assignor act  still as the visible owner for the ship and cargo be not put into the  possession of Heathcote and therefore the plaintiff as the assignee under the  commission of bankruptcy against William be entitle to the cargo for the  benefit of the creditor at large atkins for the plaintiff be cite the case of  bourn assignee of peel a bankrupt v Dodson SC ante the that of December and of  rial v Stevens march the that and the case of Stevens v sole Ves ante S c  before Lord Talbot who be of opinion that a assignment of barge by a person  who notwithstanding such assignment keep possession of these barge and work  they be a fraud on his creditor at large and therefore decree the barge to be  the property of those creditor and lawful seize under the commission against  the assignor Mr Noel for the defendant Heathcote at the time of the assignment  the ship be actual sail and go abroad and therefore the delivery of the ship  and cargo to the defendant Heathcote be impossible in the case of bourn v  Dodson your lordship doubt whether the statute of the James c extend to a  mortgage of good and be rather incline to think the act confine it to a  absolute sale see rial v roll post the case of rial v Stevens be a assignment  of a brewhouse and utensil here in England so that the possession there be  capable of be deliver and consequent different from the present Stevens v sole  be also different for the barge be actual work in the river Thames and  therefore the possession of they may likewise have be deliver he further  insist this be a actual assignment the policy of insurance be endorse to the  defendant Heathcote Mr Wilbraham of the same side argue that such a contract  as the defendant make with William be a perfect and complete sale without the  delivery of the good that if it be not a legal assignment yet the defendant  have a equitable lie upon the good by virtue thereof and have a right to  retain they against the plaintiff as a assignee under the commission of  bankrupt against William and in support of this cite tailor v Wheeler vern  Lord chancellor in the extent in which this case have be argue at the bar it  be a question of very great consequence but I will observe in the first place  this be a case which have come seldom before the court and much strong in  favour of the defendant than such case general be for the common case be where  the creditor have pretend to set up a demand for a old debt and the person owe  have at that time be in decline circumstance and this creditor in order to  gain a preference have procure a assignment of good from the debtor who soon  after become a bankrupt yet even in some of these case if the creditor appear  to be a good fide one he have prevail though the court lean strong against  such a creditor in favour of the creditor at large he e t e bind to the  defendant Heathcote and the assignment bear date the same day therefore this  case stand clear of any colour of fraud with a view to gain to he atkins er p  self a preference atkins to other creditor I mention this to show in how much  more favourable a light this defendant stand than in the common case the case  of Jacobs v shepherd that be original hear before sir Joseph Jekyll be a  assignment of good which at the time of the assignment be actual beyond sea  and yet sir Joseph set it aside as the borrower be then in fail circumstance  but Lord chancellor king upon a appeal reverse the decree at the roll this  case be cite in small v oudly p W and more full by Lord Mansfield in burr I  will first consider the case on general rule both of law and equity it have be  insist by the plaintiff counsel that this assignment to Heathcote be no legal  bill of sale or legal assignment to he of these good and it must be admit as  to the homeward bind cargo it be no legal assignment but it have be carry  still further by the plaintiff counsel for they have likewise insist the  assignment do not amount to a bill of sale of the outward bind cargo for want  of a delivery of the good themselves to the defendant Heathcote I be of  opinion that a delivery in this particular instance be not absolute necessary  to make it a complete contract as in the case of a horse sell in a market  overt if the buyer pay the money for he he may maintain a action against the  seller without show a delivery of the horse it be true the want of a delivery  be often a objection and a material one but how why as a badge of fraud for  where a subsequent creditor have take the good in execution a prior creditor  must show a delivery be in twine case   so but it have be also insist on the  part of the plaintiff that there be no proper word of assignment in the deed I  be so far of opinion with the plaintiff that what have be do in this case do  not amount to a sufficient legal sale Even if there have be a endorsement of  the bill of lade it be no actual assignment unless the good be direct to be  deliver to the assignee but then the question will come to this whether the  defendant Heathcote have not a sufficient lie upon the good in point of equity  for it have be true say that assignee under a commission of bankruptcy must  take subject to all equitable liens against the bankrupt himself the case of  tailor v Wheeler be exact in point vern in the case of cock v goodfellow Trin  term the that of Geo ld Macclesfield be of the same opinion p W Mod burr S c  the ground the court go upon be this that assignee of bankrupt though they be  trustee for creditor yet stand in the place of the bankrupt and they can take  in no better manner than he can therefore assignment of choose in action for a  valuable consideration have be hold good against such assignee if this be a  assignment therefore for a valuable consideration it will prevail in equity in  favour of the defendant Heathcote it be very true the deed be not a actual  assignment but yet there be atkins sufficient upon the face of it to show that  Heathcote have a charge and lie upon the good by virtue of the loan of the  pound the policy of insurance have be endorse to he though the bill of lade  and invoice have not I will first consider the case on general rule of equity  suppose Roger William have declare only by the deed that though he keep the  possessionn of these good they shall still remain as a collateral security to  the defendant Heathcote it will have be a equitable lie it have be further  object by the plaintiff counsel that all this be executory only and no lie  gain till the good come home this be by no mean a necessary consequence from  the clause in the deed and beside there be one clause which express enable  Heathcote to sell and dispose of such effect and keep the money arise thereby  in satisfaction of his bind upon return the overplus to William therefore take  into consideration the whole of this deed it amount to a equitable lie upon  these good as a covenant to execute a power be consider as do vide ld Coventry  case SC p W stram Mod Max in Eq last case and I be of opinion as this appear  to be a fair transaction and money actual pay and not a old creditor endeavour  to get a undue preference that it ought to be support in equity I shall in the  second place consider what have be urge by plaintiff counsel atkins er p upon  the clause in the James c that these good by virtue of that statute be vest in  the assignee of the bankrupt for want of the delivery of they to the defendant  Heathcote by Roger William and that the defendant can only come in as a  creditor under the commission and be not entitle to retain they till his whole  pound be satisfy it have be insist that as there be no endorsement of the bill  of lade and invoice to the defendant Heathcote they be leave under the sole  direction and disposition of the bankrupt and therefore be subject to the  clause in the act of parliament if this doctrine shall prevail it will be  attend with the most mischievous consequence there have be no determination  upon these clause so that accord to the rule in respect to law in other  country they may be say to be go into desuetude such a construction will bind  up property so that it will be a great detriment to trade and commerce in  general I do not think these clause be ever mean to extend to mortgage or  pledge for money or good because it be impossible in a assignment of good  beyond sea that they can be deliver over to the assignee if any 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 whereof they shall be repute owner  and take upon they the sale alteration or disposition atkins as owner that in  every such case the say commissioner 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 the act do  not confine it mere to have the good leave in their possession but also the  order and disposition thereof which be explain by the word that follow whereof  they shall be repute owner to apply this to the present case with regard to  the ship there be no colour to say it be so leave in williams possession as  that he can take upon he the order and disposition thereof consider it in the  other respect the bill of lade and invoice be deliver by William to Heathcote  so that every thing which can show a right to the good be deliver over to  Heathcote then how can William be say to have the order and disposition of  they I be of opinion therefore upon the whole that this be not within the  meaning of the act of parliament of the James without enter into the nicety of  the word true owner and proprietary and I do agree with Mr Wilbraham that in  this court the mortgagors as have much the large share in the estate be  consider as owner and have the property in it and for that reason mortgage be  not within the intention of this act see rial v roll post let it be refer to  the master to take a account of what be due to the defendant for the sum of  pound part of the sum of pound mention in the condition of the bind date the  that of January and in the indenture of the same date and also for the sum of  pound afterward advance by he upon a insurance of the good mention in the say  indenture together with interest for the same at the rate of per cent per and  and the defendant Heathcote and Martin be to come to a account before the  master for the good and effect part of the cargo of the two ship call the  Samuel and Molly and Ann Billander and the produce of the say ship and what  shall be come on the say account of the say good and effect and also the  produce of the say ship be to be apply in the first place in payment of what  shall be find due to the defendant Heathcote for his principal interest and  cost and to the defendant Martin for his cost but in case the money that shall  be come on the say account of good and effect and also of the produce of the  say ship shall not be sufficient to pay unto the say defendant what shall be  find due to he for principal interest and cost as aforesaid then the say  defendant Heathcote be to be at liberty to come in for the residue as a  creditor under the respective commission award against the say Roger William  and Jeremiah wile and to receive a dividend in respect thereof in proportion  with the other creditor atkins er p