band-Mr. Satterthwaite-was adjudicated a bankrupt in 1894, his insolvency being brought on by the misconduct of his partner. Bodilly (Muir Mackenzie with him), for the trustee : This settlement is void as against the trustee under sections 1 (1) and 7 (2) of the Bills of Sale Act, 1854, which are the same for this purpose as section 8 of the Bills of Sale Act, 1878. The furniture was in the apparent possession of Satterthwaite at the commencement of his bankruptcy: Ashton v. Blackshaw (3). Reed, Q.C., and Morton Smith, for Mrs. Satterthwaite : The Bills of Sale Act has no application here. There was no apparent possession by the husband. The furniture was at the matrimonial domicil, and the evidence shows that Mrs. Satterthwaite used and dealt with it as her own. Her possession was "consistent with the deed of settlement," as was said by ASHHURST, J., in Haselinton v. Gill, cited in the note to Jarman v. Woolloton (4), Simmonds v. Edwards (5), In re Reed, Ex parte Cox (6), and see the observations of Lord ESHER, M.R., and DAVEY, L.J., in Ramsey v. (1) Section 1 of the Bills of Sale Act, 1854, is, so far as material, as follows: "Every bill of sale of personal chattels made after the passing of this Act. . . shall be filed within twentyone days after the making or giving of such bill of sale . . . otherwise such bill of sale shall as against all assignees of the estate and effects of the person whose goods or any of them are comprised in such bill of sale under the laws relating to bankruptcy. . . be null and void to all intents and purposes whatsoever so far as regards the property in or right to the possession of any personal chattels comprised in such bill of sale which at or after the time (3) L. R. 9 Eq. 510; 39 L. J. Ch. 205; 22 L. T. 197; 18 W. R. 307. (4) 3 T. R. 618; 1 R. R. 780. (5) 16 M. & W. 838; 11 Jur. 592. (6) 1 Ch. D. 302; 33 L. T. 757; 24 W. R. 302. Margrett (7), referring to Pollock and Wright on Possession, p. 24. In Shepherd v. Pulbrook (8), LINDLEY, L.J., specially said that “he wished to guard against its being taken that goods which were the separate property of the wife were in the apparent possession of the husband when husband and wife were living together." Muir Mackenzie, in reply: There was apparent possession here by the husband. In Ashton v. Blackshaw (3) the point was almost taken for granted. In re Emery (9), the facts of which are more fully stated in the Weekly Reporter, was very similar to this: a post-nuptial settlement, not re-registered, and possession by husband and wife at the matrimonial domicil, and the settlement was held void as against the husband's trustee in bankruptcy. In Ramsey v. Margrett (7), the question was one of vendor and vendee, not of apparent possession, see per LOPES, L.J. So in In re Reed, Ex parte Cox (6), the transaction was a purchase from the wife. All the evidence amounts to here is that the husband paid some bills, and the wife others. Reed, Q.C.: In In re Emery (9), the settlement was for the benefit of the settlor's wife, himself, and his children; in effect for himself. VAUGHAN WILLIAMS, J.: I entertain no doubt in this case. The question arises under section 1 of the Bills of Sale Act, 1854, but it would be the same if it arose under section 8 of the Bills of Sale Act, 1878, the sections being identical. The Act of 1854 provides : [his Lordship read section 1, and continued:] When the Bills of Sale Act, 1854, was passed, a wife had no right at common law to possession apart from her husband, and even after the Married Women's Property Act, 1870, her rights were much more limited than they are now. Now, no doubt, a wife is entitled to independent possession. This particular marriage settlement was made in 1868, and by it chattels were assigned upon trust for the benefit of the wife for her separate use absolutely. Under these circumstances, (7) 9 R. 407; [1894] 2 Q. B. 18; 63 L. J. Q. B. 513; 70 L. T. 788; 1 Manson, 184. (8) 4 Times, L. R. 642. (9) 21 Q. B. D. 405; 57 L. J. Q. B. 629; 37 W. R. 21. | having regard to the earlier settlement under which the leasehold house-Springfield-was assigned for the benefit of the wife, I have not the slightest doubt that possession was delivered of these chattels in substance, and in fact to the wife. The moment you arrive at that conclusion-that possession was given by the grantor to the grantee the Bills of Sale Act has no application, unless, notwithstanding possession by the grantee, there was an apparent possession by the grantor. If there was such apparent possession, the statute would apply. Lord Justice DAVEY, in Ramsey v. Margrett (7), seems to go further in favour of Mr. Reed's contention, and holds that the Bills of Sale Act has no application at all to such a case. I will not go into that; but even supposing that the Act does apply, it only applies if, possession having been given, the goods remain in the apparent possession of the grantor. Look at the definition. [His Lordship read it, and continued:] Here the goods were not in any place occupied by the grantor. Springfield -the place where they were-was occupied by the wife. The settlement was carried into effect. The occupation was the occupation of the wife, and not of the husband. Then as to "used and enjoyed." The furniture was not used and enjoyed at Springfield by Mr. Satterthwaite any more than it was by his adopted daughter, Mrs. Phillips. I decide that the goods were not in the possession. or apparent possession of Mr. Satterthwaite, and consequently the Act does not apply. Solicitors: Walker & Rowe, for the Trustee. J. & J. C. Hayward, Dartford, for Mrs. Satterthwaite. E. M. IN RE MILLARD. 1894, November 25; 1895, March 7. VAUGHAN WILLIAMS, J. Bankruptcy Administration Order-Executrix carrying on Business-Realization-Creditors of Testator-Creditors of Executrix-Priority-Assent. Where an executrix carries on her testator's business for a reasor able time for the beneficial winding up of the same with the assent of the testator's creditors, the new creditors by virtue of the executrix's right of indemnity against the whole estate, will have priority over the testator's creditors. It makes no difference whether the will contained a power to carry on the business or not. THIS was a question arising in an administration in bankruptcy under section 125 of the Bankruptcy Act, 1883. ness. The debtor Millard, who was a woollen merchant, died 23 February, 1893, leaving his widow his executrix and sole residuary legatee. The estimated value of the estate, which consisted mainly of cash in hand, stock in trade, and book debts, was 8,0121.; the debts and funeral expenses were 7,5441., leaving a nett surplus of 4681. The testator's will contained no power to carry on his busiThe widow, however, carried on the business for six months. after the testator's death, and in August, finding herself insolvent, sent notice to all the creditors, asking them to attend a meeting. An order for administration in bankruptcy was made 16 September, 1893, and the official receiver became trustee. The assets were estimated at 4,000l., and of these the official receiver, acting as trustee, had realized 3,000l. The creditors were of two classes: creditors of the testator amounting to 4,350l., and creditors of the executrix in the course of carrying on the business amounting to 3,150l. The official receiver had given notice that he proposed to divide the assets among the creditors of the first class-the testator's creditors to the exclusion of any claims of the widow as executrix and of creditors of the second class. The executrix objected, and the registrar referred the question to the Court for directions. Muir Mackenzie, for the official receiver, stated the facts to the Court. [VAUGHAN WILLIAMS, J.: So long as the executrix has acted rightly, her right of indemnity comes first against the whole estate : Dowse v. Gorton (1), at p. 199.] Here the executrix has been carrying on the business for her own The business was benefit, and not merely to wind up the estate. valued at 8,0121. for purposes of probate. [VAUGHAN WILLIAMS, J.: That was a gross price. It would require nursing to realize that.] From Ex parte Garland (2) downwards it has been held, that persons dealing with an executor must look to the executor personally. [VAUGHAN WILLIAMS, J.: Dowse v. Gorton (1) has materially varied the old law.] In Strickland v. Symonds (3) Lord SELBORNE says, "The case of Ex parte Garland (2) shows that the creditor can only have recourse to the particular part of the property of which there has been such an express dedication, and the right cannot be extended beyond that either in bankruptcy or in administration," and see Labouchere v. Tupper (4), per Knight Bruce, L.J. [VAUGHAN WILLIAMS, J.: An authority to trade seems, since Dowse v. Gorton (1), to be immaterial if the creditors have stood by, and the business has in fact been carried on for their benefit.] KEKEWICH, J., has lately taken that view in In re Brooke (5). (1) [1891] A. C. 190; 60 L. J. Ch. 745; 64 L. T. 809; 40 W. R. 17. (3) 26 Ch. D. 245, 248. (4) 11 Moo. P. C. C. 198. (5) 8 R. 444; [1894] 2 Ch. 600; 71 L. T. 398. |