executor or administrator (p) of the deceased, when execution can be had against the goods of the testator or intestate, or to apply under the equitable jurisdiction of the court for the administration by the court of the deceased debtor's estate (q). A creditor may also take proceedings to have the insolvent estate of his deceased debtor administered in bankruptcy. When an order is made for the administration in bankruptcy of a deceased debtor's estate, his personal as well as his real property vests first in the official receiver as trustee, and then in the trustee appointed by the creditors; and the trustee is empowered to realize the same by sale or otherwise, and to distribute the proceeds among the creditors of the deceased (r). By a statute of the reign of Elizabeth (s), the gift or Conveyances alienation of any lands, tenements, hereditaments, defraud tending to goods and chattels, made for the purpose of delaying, creditors. hindering or defrauding creditors, is rendered void as against them unless made upon good, which here means valuable, consideration, and bona fide to any person not having at the time of such gift any notice of such fraud. No such gift or alienation of chattels is therefore of any avail against the claim of a judgment creditor to take the same in execution, or the title of the debtor's trustee in bankruptcy, or against creditors who take proceedings to secure payment of their debts out of the debtor's estate after his death (t). The fraudulent purpose intended by the statute of Elizabeth can of course only be judged of by circumstances. Thus it has been held that if the owner of goods make an absolute assignment of them by deed to one of his creditors, and yet remain in the possession of the goods, (p) Ante, p. 3. (q) See 2 Wms. Exors. pt. v. bk. ii. ch. i. ii. (r) Stat. 46 & 47 Vict. c. 52, s. 125, amended by 53 & 54 Vict. c. 71, s. 21. (s) Stat. 13 Eliz. c. 5. Jac. 552. Fraudulent preference of one creditor over others. such remaining in possession is a badge of fraud, which renders the assignment void, by virtue of the statute, as against the other creditors (u). But if the assignment be made by way of mortgage to secure the payment of money at a future day, with a proviso that the debtor shall remain in possession of the goods until he shall make default in payment (x), the possession of the debtor, being then consistent with the terms of the deed, is not regarded in modern times as rendering the transaction fraudulent within the meaning of the statute (y). It has been decided that a bona fide sale or alienation of chattels, though made to secure or satisfy a creditor, is not void. under the statute of Elizabeth, merely because it is made with the intention of defeating an expected execution at suit of another creditor (2). Under the bankruptcy law, however, conveyances of property made by any person unable to pay his debts as they become due out of his own money, with a view of giving one of his creditors a preference over the others, become void, as against his trustee in bankruptcy, if he be adjudged bankrupt on a petition presented within three months after the conveyance (a). And under the bankruptcy law (b), fraudulent conveyances of property are void, as against a trustee in bankruptcy; and voluntary settlements of any (u) Twyne's case, 3 Rep. 80 b; 1 Smith's Leading Cases, 1; Edwards v. Harben, 2 T. R. 587. (x) Ante, p. 86. (y) Edwards v. Harben, 2 T. R. 587; Martindale v. Booth, 3 B. & Ad. 498; Reed v. Wilmot, 7 Bing. 577. If the mortgagor should retain possession after default in payment at the time specified, it may possibly be doubted whether the security would not then be void as against creditors under the statute of Elizabeth, for, by the terms of the deed, the mortgagor is only to enjoy possession until default. But the better opinion is that the deed will still be good. See Davidson's Precedents, vol. ii. part 2, p. 145-147, 4th ed.; Ex parte Sparrow, 2 De G. M. & G. 907. (z) Wood v. Dixie, 7 Q. B. 892; Hale v. Saloon Omnibus Co., 4 Drew. 492; Gladstone v. Pad wick, L. R. 6 Ex. 203, 209, 211; and see Alton v. Harrison, L. R. 4 Ch. 622; Mason v. Briton, &c. Assn., Lim., 4 Times L. R. 755. (a) Stat. 46 & 47 Vict. c. 52, s. 48. (b) Sects. 4, 47; see the chapter on Bankruptcy, below. property become void, if the settlor be adjudged bankrupt within two years after making them, and are further liable to become void, if he be adjudged bankrupt within ten years after making them, unless it can be proved that at the time of making the settlement he was able to pay all his debts without the aid of the property comprised in the settlement, and that his interest in such property passed to the trustee of such settlement on the execution thereof. The protection of creditors against secret mortgages or assignments of chattels is also one of the objects of the Bills of Sale Bills of Sale Acts (c), to which we have before referred (d). As we have seen, their scheme is to secure the publicity of registration for all written assurances of the property in goods, which remain in the assignor's possession. We may add that assignments of chattels required to be registered under the Bills of Sale Act, 1878 (e), may become void, for want of compliance with the Act, not only as against the assignor's execution creditors and trustee in bankruptcy, but also as against his assignees under any assignment for the benefit of his creditors. (c) Stats. 41 & 42 Vict. c. 31; 45 & 46 Vict. c. 43; replacing an Act of 1854; see post, Appen, dix (A.). (d) Ante, pp. 69, 77, 87, 89. Acts. CHAPTER III. OF SHIPS. THERE is one important class of choses in possession which the policy of the law has rendered subject to peculiar rules, namely, ships and vessels. The whole of the Acts relating to Merchant Shipping were repealed in the year 1854 (a), and the law on this subject is now contained in the Merchant Shipping Act, 1854 (b), and the Acts amending it (c). Every British ships. British ship, with a few unimportant exceptions, is required to be registered (d), and no ship is to be deemed a British ship unless she belongs wholly to natural-born British subjects, or to persons made denizens or duly naturalized. But no natural-born subject who has taken the oath of allegiance to any foreign state can be owner, unless he has subsequently taken the oath of allegiance to her Majesty, and continues during his ownership resident within her Majesty's dominions, or, if not so resident, member of a British factory, or partner in a house actually carrying on business within her Majesty's dominions. And every denizen and naturalized person must continue during his ownership resident within her Majesty's dominions, or, if not so resident, must be a member of a British factory, or partner in such a house of business as above mentioned; and nothing contained in the (a) Stat. 17 & 18 Vict. c. 120. 35 & 36 Vict. c. 73; 36 & 37 Vict. c. 85; 39 & 40 Vict. c. 80; and 43 & 44 Vict. c. 18. (d) Stat. 17 & 18 Vict. c. 104, s. 19. As to colonial shipping, see stat. 31 & 32 Vict. c. 129. Naturalization Act, 1870 (e), is to qualify an alien to be the owner of a British ship (f). But bodies corporate established under and subject to the laws of the United Kingdom or any British possession, and having their principal place of business therein, may be owners (g). The registration is made by the collector, comptroller or other principal officer of customs for the time being at any port or other place in the United Kingdom To face p. 106. The law relating to merchant shipping is now consolidated in the Merchant Shipping Act, 1894, by which the provisions of the Merchant Shipping Act, 1854, and its amending Acts, are repealed and substantially re-enacted. The text of this chapter is not materially affected by this alteration but references to the sections of the Act of 1894 corresponding to the repealed enactments cited in the foot-notes are given in the Addenda. any number of persons not exceeding пve may tered as joint owners of a ship, or of a share or shares therein. And joint owners are to be considered as constituting one person only, as regards the foregoing rule relating to the number of persons entitled to be registered as owners, and shall not be entitled to dispose in severalty of any interest in any ship, or in any share or shares therein, in respect of which they are registered. A body corporate may be registered as owner by its corporate name. No notice of any trust, express, im- No trusts plied, or constructive, shall be entered in the register entered on the register. |