H. T. 1846. jury accordingly found for the plaintiff. Thereupon the defendants Queen's Bench. excepted, and the bill of exceptions being set down for argument— O'CONNOR v. HARRIS. Christian, with whom was Radcliffe, for the exceptions. The first exception arises on the evidence given by the plaintiff, namely, that there was not sufficient evidence of a petitioning creditor's debt, the demand being on foot of a bill of exchange drawn and accepted prior to the act of bankruptcy, but not due until after such act of bankruptcy: Ex parte Botten (a); there the bankrupt had given the petitioning creditor his acceptance for goods, which the petitioning creditor had indorsed and negociated, and which was at the time the fiat issued in the hands of the indorsee and not due; and it was held the debt was clearly insufficient to support a commission: Ex parte Smith (b). PERRIN, J.-The evidence not having been objected to, you cannot go into this matter on the exception. The next exception is, that the debt due to the plaintiff was due to him as a partner with others, and, therefore, that he alone could not sue out a commission on this debt: Buckland v. Newsome (c); Ex parte Peele (d); Teed v. Elworthy (e); Goode v. Harrison (f). The third exception, however, raises the question as to the plaintiff being at all entitled to recover. As to the first class of goods, those scheduled on the 16th of June 1840, they were vested in the defendants by a title paramount to the bankruptcy, but the plaintiff says, though the defendants were the true owners of those goods, yet that they were left in the possession, order and disposition of the bankrupts, and therefore, that 6 W. 4, c. 14, s. 86, directly applies. That section is to this effect, "That if any trader 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 commis"sion." Supposing the facts to be so, we put an end to that possession by having taken possession under our deed on the 27th of September 1841, and though that be after an act of bankruptcy committed, yet it is within the protection of the 95th section of 6 W. 4, c. 14, which provides that all conveyances by, and 66 (a) 1 Mont. & Bligh, 412. (e) 14 East, 210. (b) 3 M. D. & De. Gex. 341. (d) Buck. B. C. 457. (f) 5 B. & Al. 147. บ. HARRIS. all contracts and other dealings and transactions by and with, any H. T. 1846. bankrupt bona fide made and entered into more than two calendar Queen's Bench. months before the date and issuing of the commission against him, O'CONNOR shall be valid, notwithstanding any prior act of bankruptcy by him committed, provided the person so dealing with such bankrupt, had not at the time of such conveyance, &c., notice of a prior act of bankruptcy. The commission of bankruptcy did not issue until nine months after the defendants had taken possession, and there was no evidence that they had notice of the prior act of bankruptcy; the defendants are therefore protected by that section; and that such was the policy of the legislation is apparent, for now by 7 & 8 Vic. c. 90, the two months provided for in the former Act are abolished, and every dealing with the bankrupt is protected up to the issuing of the commission: Ex parte Styan (a); Pariente v. Pennell (b). The question then is, is this a conveyance, contract, dealing or transaction within the meaning of the 95th section? The contract here is compounded of the deed of 1840, and the act of possession of 1841, but even without the deed and taken per se it is a dealing protected by the statute; the deed contains an express provision that, on default made in payment of the interest by the mortgagor, the mortgagee should re-enter and take possession: it cannot therefore be said that the taking possession was not with the consent of the bankrupts: Lackington v. Elliott (c). If then the defendants come within the 95th section they are entitled to the first class of goods. [CRAMPTON, J. What do the words 'prior act of bankruptcy" in that section refer to ?]-They mean prior to the conveyance, transaction or dealing: Wright v. Fearnley (d). 66 Then arises the question on the second class of goods-the unscheduled wines. By the deed of June 1836 the wines manifestly passed, that is apparent from the recital; and in the deed itself there is a reference to the schedule to be annexed: and so in the second deed of same date there is a similar recital and a reference to the schedule; the omission of the wines, therefore, is a mistake. "Stock" is the word used in reference to the wines: England v. Downs (e). In the deed of 1840 the wines are again omitted, though the clear intention was that they should pass. to the wines bought between June and September, England v. Downs also applies; both deeds contain provision for new articles; and as to the mode of vesting chattels: Sheph. Touch. 224. Then as บ HARRIS. H. T. 1846. But suppose that this case is not within the protection of the 95th Queen's Bench. section, but controlled by the 86th section, and that these goods are O'CONNOR available for purposes of bankruptcy, the mode of getting at them is not by trover at the suit of the assignee; and this is shown by the 74th, 76th, 79th, 86th and 87th sections. Where the rights of third persons are to be affected, the Court will take care that the assignees will not prejudice them.-[PERRIN, J. What is the power of the Commissioner, and where is the possession of the goods to remain until the sale?-In the true owner until the bill of sale be executed; so that the legal estate would remain in the defendants, and therefore trover is not sustainable. There are no cases on this point in England, for there it could not arise: 6 G. 4, c. 16, ss. 63, 64 and 72, followed up by 1 & 2 W. 4, c. 56, ss. 25, 26: Doe v. Mitchell (a). J. D. Fitzgerald and Macdonogh, contra. As to the first two exceptions, it is not the law that at the time of the bankruptcy the petitioning creditor should be a creditor at the time of the act of bankruptcy; but at the time of the petitioning: Glaister v. Hewer (b). The true test is, could he maintain an action at the time of the issuing of the commission, on a debt which had existence at the time the act of bankruptcy was committed? The debt must be a legal one, not an equitable one: Medlicott's case (c). The main question in the case turns on the third exception. Pawnees of goods permitting bankrupts to continue in possession, or in the order or disposition of them, have no specific lien on them against the assignees: Ryall v. Rowles (d); Horn v. Baker (e) ; Clark v. Crownshaw (f); Hickenbotham v. Groves (g). These cases establish that the goods were, up to the 27th of September 1841, in the order and disposition of the bankrupts; therefore, under the 86th section the plaintiff is entitled to succeed, for this section is not controlled by the 95th section. The 86th section was for the purpose of preventing the trader, by means of the reputed ownership of goods, committing fraud; and the 95th section is intended to provide for the evil where the parties were acting bonâ fide, as contradistinguished from fraudulent creditors. The construction contended for on the other side would render the 86th section (a) 2 Mau. & Sel. 446. (b) 7 Term Rep. 498. (d) 1 Ves. sen. 348; S. C. 1 Atk. 165. (f) 3 B. & Ad. 804. (e) 9 East, 215. (g) 2 C. & P. 493. In Ex parte H. T. 1846. nugatory, if the 95th be held to apply to every case. Further, the taking possession in this case was not a contract or dealing within the meaning of the 95th section. The words are contracts, &c., by and with the bankrupt; he therefore must be a party to the transaction; but here was an exercise of an adverse right. That section also provides, that the person so dealing with the bankrupt is not to be protected, unless he had no notice of a prior act of bankruptcy; they should have proved that they had no notice; but the inference to be drawn here is, that they had notice: Belcher v. Magnay (b); Pearson v. Graham (c); Elkin v. Janson (d). As to the wines, it is clear by the deeds they did not pass. In order to claim the benefit of the 95th section, a bonâ fide intention with reference to the bankrupt laws must be proved. Even if we dealt with this case on the principle of Martindale v. Booth (e), the possession of the bankrupts, forty days after default made, was a fraud; and then the defendants taking possession was illegal : Darley v. Smith (f); Bevan v. Nunn (g). It has been always held that the assignee is entitled to maintain trover: Carke v. Crownshaw; Soames v. Watts (h); Lyon v. Weldon (i). CRAMPTON, J.-That point does not appear upon the exceptions, and therefore cannot now be relied on. Radcliffe, in reply. The action of trover is not maintainable in this case by the assignees; and if on the whole case the plaintiff shows no right to maintain the action, the Court is bound to arrest the judgment even on a bill of exceptions: Trimblestown v. Kemmis (k). Under the old law, the assignees might bring trover: 21 Jac. 1, c. 19, s. 11 (Eng.); 11 & 12 G. 3, c. 8, s. 8 (Ir.): and in 3 Christian's Bankruptcy Laws, p. 129, there is the form of an assignment from the Commissioners to the assignees. In the 1 & 2 W. 4, c. 56, s. 25, the analogous English Bankrupt Act to 6 W. 4, c. 14, s. 74, these (a) 1 Bos. & P. 82. (c) 6 A. & E. 899. (e) 3 B. & Ad. 498. (g) 2 Moor. & Scott, 134. (i) 3 Bing. 334. (b) 1 D. & Low. 442; S. C. 12 M. & W. 111. (d) 13 M. & W. 655. (h) 1 C. & P. 400. (k) 1 J. & Sy. 609. Queen's Bench. O'CONNOR บ. HARRIS. H. T. 1846. words are used, "which by the laws now in force," &c.; these are Queen's Bench. not in the Irish Act, and we must presume the Legislature had some O'CONNOR object in departing from them. Ex parte Styan concludes the question; for it is a decision on abstract principles that the 86th section is controlled by the 95th section. บ. HARRIS. Cur. ad. vult. 1846. Jan. 23. The Court delivered judgment. PERRIN, J. (after stating the facts of the case proceeded). Counsel for the defendants insisted that there was no sufficient evidence of a petitioning creditor's debt, due on the 4th September, the time when the act of bankruptcy was committed, as the bill for £161, although accepted before the bankruptcy, did not fall due until the 18th of September, and as it was not a debt due to the petitioning creditor alone; and called upon the learned Judge so to charge the jury, which he declined to do, and properly, because the bill of exchange drawn by O'Connor for £161, and payable to his order for value received, and accepted by the bankrupts, constituted a debt as between them, due to and recoverable by him, and by him alone from them; and although the credit or time when it became payable, had not arrived at the time of the act of bankruptcy, yet it imported on the face of it to be for value received, that is, for valuable consideration, and payable at a certain time, which had expired long before the commission was sued out; wherefore, without referring to the authorities, which are clear and unambiguous, the first and second exceptions ought, in my opinion, to be overruled. It was then insisted on by the plaintiff, that he, as assignee, was entitled to a verdict for the value of all the wines and furniture taken by the defendants on the 27th of September, the wines being then the actual property of the bankrupts, and the furniture having been in the possession of the bankrupts, and whereof they were reputed owners, and this by force of the 86th section of 6 W. 4, c. 14. On the other hand, it was insisted upon the part of the defendants, that they were entitled under the deeds of 2nd June 1836, and 16th June 1840, and the state of facts on the 27th of September 1841, as disclosed in evidence, to resume or take possession of the wines and goods on that day, and that as no commission of bankruptcy issued against the bankrupts for two months after, they were entitled to retain the possession, and that the Judge ought to direct the jury therefore to find a verdict for them, which the learned Judge declined to do, and therefore the defendants again excepted. The matter of this exception is varied by confining it to the |