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1834.

Ex parte
WATKINS.

In the matter

of Kidder.

that he was informed at the office that no notice was ever given to the society.

The 79th (a) section, which relates to trust property, is confined to cases where property stands in the bankrupt's name as trustee; here the shares stood in his name, not as trustee, but as his own, and the trust was secret.

Mr. Swanston in reply was stopped by the Court.

The CHIEF JUDGE:- Where there exists a custom which is known that property standing in the name of any one may only be his nominally, while the real right may be in another, would the reputation of ownership attach to the mere nominal possession? Here the property follows the title. His title is as trustee; he holds as trustee ; he had a right to hold. The mischief the act intended to remedy was, where the title was in one person, the possession in another, as decided by Lord Eldon in ex parte Martin, 2 Rose, 332, S. C. 19 Ves. 494.

(a) "That if any bankrupt shall as trustee be seised, possessed of, or entitled to, either alone or jointly, any real or personal estate, or any interest secured upon or arising out of the same, or shall have standing in his name as trustee, either alone or jointly, any government stock, funds, or annuities, or any of the stock of any public company, either in England, Scotland, or Ireland, it shall be lawful for the Lord Chancellor, on the petition of the person or persons entitled in possession to the receipt of the rents, issues, and profits, dividends, interest, or produce there

of, on duc notice given to all

other persons (if any) interested therein, to order the assignees, and all persons whose act or consent thereto is necessary, to convey, assign, or transfer the said estate, interest, stock, funds, or annuities to such person or persons as the Lord Chancellor shall think fit, upon the same trusts as the said estate, interest, stock, funds, or annuities were subject to before the bankruptcy, or such of them as shall be then subsisting and capable of taking effect; and also to receive and pay over the rents, issues, and profits, dividends, interest, or produce thereof, as the Lord Chancellor shall direct."

c. 16.

1834.

Ex parte WATKINS.

of

KIDDER.

The assignees, however, contend, that as the shares were suffered to stand in the name of the bankrupt, they passed to them under section 72 of 6 G. 4. No doubt shares in an insurance office, as other choses In the matter in action, are goods and chattels within the meaning of that clause; but it is equally clear that they would not pass under that clause if held in trust for another. Fraud is not alleged. The shares were entered in the name of Kidder, with the knowledge of one of the directors, pursuant to a practice known and permitted. I do not see that the clause as to trust property is confined to cases where the bankrupt is actually entered on books, &c. as a trustee. Bank stock is not so entered. The shares standing in the name of the trustee was quite consistent with the legal title which was in him, as Lord Eldon said in ex parte Martin, 2 Rose, 332, S. C. 19 Ves. 494.

Sir John Cross:

In this case the bankrupt had possession, and he had a legal title to the possession; consequently the seventysecond section does not apply.

It might perhaps create a distinction if A. B. sold goods or chattels, and A. B. remained in possession, and executed a deed of trust in favour of the purchaser. There, though the possession and legal title would be in the same person, yet the circumstances of the case might create an exception, and bring it within section 72.

Sir George Rose : —

The notice to the director and to the actuary is certainly very material; without that I should doubt the effect of the declaration of trust. The seventyninth section does not apply to this case, it merely enables a party to apply by petition instead of bill.

1834.

Ex parte WATKINS. In the matter

of Kidder.

The question is, was the bankrupt a trustee? If so, the assignees have no title to the property. But whether he were trustee or not might be a question. If this were a mere delivery of a chattel without more, the title to it might vest in the assignees under a subsequent bankruptcy. But if the owner were an infant, or a feme covert, then, however hard on creditors, and however much they might be deceived, yet as the possession could not be with the consent of the true owner thereof, it would not pass to the assignees. If it be not a dry chattel thus to be operated on by actual delivery of possession, but a chose in action, which cannot be delivered, the question is, whether at the time of the bankruptcy the equitable title was complete as against the assignees, who now have the legal title which the bankrupt before possessed? It has been decided, that though a chose in action have been assigned so far as contract goes, yet if no notice was ever given as against those persons against whom the assignment is to operate, that the property goes to the assignees. As to bank stock, all the world knows, and indeed it is acknowledged as a conclusion of law, that the Bank takes no notice of trusts; and a notice there of a trust would be nugatory. But is that the case when notoriety may be given by notice?

As to the written declaration of trust, would that alone have prevented the bankrupt selling the property, or from holding himself out as the reputed owner? I should have some difficulty in saying that this property was not in the reputed ownership, if the right of the petitioner depended on the declaration of trust only.

It is not alleged that the office refused to attend to notices; if that had been the case, the petitioner might perhaps have urged, "In taking a declaration of trust I have done all I could usefully do notices to the

office would have been idle and nugatory."

But it

1834.

Ex parte WATKINS.

has not been proved that this office refused to attend to notices; therefore, unless there had been notice in this case, I should have some difficulty in saying that In the matter the property in question did not pass to the assignees.

The CHIEF JUDGE: If the question depended on notice, I should say there was enough; but my judgment was founded on the existence of the declaration of trust alone.

Order, That the assignees deliver up and convey the trust property. (a) No costs.

of

Kidder.

Ex parte LAVENDER.- In the matter of

LAVENDER.

THIS
was a petition by the bankrupt stating that he
was not a trader, and had not committed an act of
bankruptcy, and praying that the insertion of the ad-
vertisement in the Gazette might be stayed, and the fiat
superseded.

Mr. Temple, for the petitioning creditor, applied to adjourn the hearing, that he might have time to produce witnesses.

The CHIEF JUDGE:

I shall first hear the witnesses for the petition, and if they establish a prima facie case, I will stay the advertisement in the Gazette, and then consider whether it will be expedient to give time to produce witnesses on the main question of the supersedeas.

(a) An appeal is pending from this decision.

C. of R.

Sept. 15, 22, & 23. 1834.

The Court of

Review will stay the inser

tion of the ad

vertisement in

the Gazette.

1834.

Ex parte LAVENDER.

In the matter

of LAVENDER.

Sept. 22.

Mr. Serjeant Wilde, with whom was Mr. Montagu, having proceeded to open the case, stated he laboured under great difficulty, not knowing what were the acts of bankruptcy, &c., and he feared he might consume much time to no purpose in guessing what these were.

The CHIEF JUDGE said it would save much time, if Mr. Temple would consent to have the depositions now read, as Mr. Temple must eventually read them as part of his case.

To this Mr. Temple consented, and they were read accordingly.

One of the depositions was by the drawer of a bill accepted by the bankrupts, and not yet due. It concluded with the usual affidavit, that the deponent was not creditor of the bankrupt.

Mr. Serjeant Wilde objected, that his deposition could not be read as evidence; he may be called on to pay the bill, and is, consequently, an interested witness; he therefore should be called vivâ voce, and examined as to these facts, which, if as stated, incapacitate him as a witness in the proceedings.

The CHIEF JUDGE:-As the deponent swears he is not a creditor, and there is no evidence that he is, I cannot assume him to be such. This evidence must be read.

The deposition was read.

He was afterwards called to be examined virá voce, on his voire dire in answer to a question put by Mr. Serjeant Wilde, he said, "I had a bill in my hands about a week or twelve days before it was due, I have paid it away to a Mr. P." On this bill the bankrupt was liable.

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