have the benefit of that specific sum (a). When money is said to have no ear-mark, the meaning is no more than this, that, being the currency of the country, it cannot be followed when once it has passed in circulation (b).

So, if the factor sell the goods and take notes in payment, the value of the notes, notwithstanding the bankruptcy, may be recovered by action from the assignees (c); for, though negotiable securities are said, like money, to have no ear-mark, the expression does not intend that such securities in the hands of a bankrupt have run into the general mass of his property, and pass to his assignees, but only that negotiable securities, as a circulating medium in lieu of money, cannot be recovered from a person to whom they have been legally negotiated. But even notes, should they fall into possession otherwise than in a due course of circulation, as by trover, do not by that accident become the property of the finder, but may be followed into his hands by the original possessor (d).

So, if a factor sell the goods of his employer for money payable at a future day, and become bankrupt, and the assignees receive the money, they will be answerable for it to the merchant by whom the factor was employed (e).

In another case the conversion had been in breach of the factor's duty (ƒ), and it was argued, that, as the prin

(a) Tooke v. Hollingworth, 5 T. R. 227, per Lord Kenyon; see Taylor v. Plumer, 3 M. & S. 571.

(b) Miller v. Race, 1 Bur. 457, per Lord Mansfield; see Taylor v. Plumer, 3 M. & S. 571.

(c) Anon. case, cited ex parte Dumas, 2 Ves. 586.

(d) Hartop v. Hoare, 3 Atk. 50, per Lee, C. J.; Miller v. Race, 1

Bur. 457.

(e) Ryall v. Rolle, 1 Atk. 172, per Burnet, J.; Taylor v. Plumer, 3 M. & S. 577; Zinck v. Walker, 2 W. Bl. 1154; Garrat v. Cullum, Bull. N. P. 42.

(f) Taylor v. Plumer, 3 M. & S. 562; see Ryall v. Rolle, 1 Atk. 172.

cipal would not have been bound to accept the property which the agent had wrongfully purchased, the Court ought not to give a lien to the principal upon the tortious acquisition; but the Court said, it was impossible that an abuse of trust could confer any right on the person abusing it, or those claiming in privity with him (g). Where the legal property does not pass, any action against the assignees must be brought by the bankrupt himself, for he is the person possessed of the legal right (h); but, in the case of a factor, an action may also be brought by the principal, for, the absolute property remains with the employer, and a special property only vests in the agent (i). But, if bills be remitted to a factor, and made payable to him or his order, it has been doubted whether the property does not so vest in the factor that no action of trover can be maintained by the principal (k).

If the property possessed by the bankrupt in his character of trustee has become so amalgamated with his general property that it can no longer be identified, the representative of the trust has then no other remedy but to come in as a general creditor, and prove for the amount of the loss (). But, in one case, though the trust money had got into the general fund, it was held, but under very particular circumstances, that it had subsequently got out again (m).

Where the trust is constructive, and only a doubtful equity, the legal property will pass to the assignees, for

(g) Taylor v. Plumer, 3 M. & S. 574, per Lord Ellenborough.

(h) Winch v. Keeley, 1 T. R. 619; Carpenter v. Marnell, 3 B. & P. 40.

(i) L'Apostre v. Le Plaistrier, cited Copeman v. Gallant, 1 P. W. 318; Delauney v. Barker, 2 Star.

539; Boddy v. Esdaile, 1 Car. 62.

(k) Ex parte Dumas, 2 Ves.583. (1) Ex parte Dumas, 1 Atk. 234, per Lord Hardwicke; Ryall v. Rolle, 1 Atk. 172, per Burnet, J.; Scott v. Surman, Willes, 403, 404, per Willes, C. J.

(m) Ex parte Sayers, 5 Ves. 169.

the statute vests in them every property (n) where there is the remotest possibility of any benefit to the creditors (o).

pass,

But only the legal property will for the cestuis que trust may have the same relief in equity against the assignees, as they would have been entitled to against the bankrupt himself (p).

By the 6 G. 4, c. 16, s. 72, it is enacted that “if any bankrupt, 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 commission."

It has been decided that this enactment does not apply where the possession of the goods by the bankrupt can be satisfactorily accounted for by the circumstances of the title, as, if a trustee be in possession of effects upon trust for payment of debts, and become bankrupt (q), or if goods be vested in A. upon trust to permit B. to have the enjoyment during his life, and B. become bankrupt

while in possession under his equitable title (r). So the enactment does not extend to a lawful and necessary possession en auter droit, as that by executors and administrators (s); but there will be no exemption from the forfeiture if the executor can be proved to have dismissed the character of personal representative, and to have assumed that of absolute owner (t). Upon the same principle must be excepted from the operation of the clause the possession of goods by factors in the ordinary course of trade (u).

And where the possession is not justified by the title, yet the property is protected, if the possession be not had with the consent of the legal owner; as, where the trust was for the separate use of the wife, and the husband took possession without any authority from the trustee, and afterwards became bankrupt (x).

2. By the Insolvent Act, 7 Geo. 4, c. 57, s. 11, "all the real and personal estate of the prisoner" is made to vest by his conveyance and assignment in the provisional assignee, and by sect. 30, where goods are in the possession of the insolvent by the consent of the true owner, they are made to pass to the assignee, as if they were the insolvent's own property.

Upon these two enactments of the Insolvent Act we have only to remark, that, as they substantially follow

(r) Ex parte Martin, 19 Ves. 491; S. C. 2 Rose, 331; see ex parte Horwood, 1 Mont. & Mac.

169.

(s) Ex parte Marsh, 1 Atk. 158; Joy v. Campbell, 1 Sch. & Lef. 328.

(t) Fox v. Fisher, 3 B. & A. 135; see Quick v. Staines, 1 B. &

P. 293; Whale v. Booth, cited Farr v. Newman, 4 T. R. 625, note (a).

(u) Ex parte Pease, 19 Ves. 46, per Lord Eldon; L'Apostre v. Le Plaistrier, cited Copeman v. Gallant, 1 P. W. 318.

(x) Jarman v. Woolloton, 3 T. R.

618.

the provisions of the bankruptcy acts, they must in the analogous cases be governed by the same construction.

3. Judgments, at least so far as they affect lands, (for execution against goods and chattels is by common law,) derive their effect from certain statutory enactments (y).

Had trusts been established at the time these statutes were passed, the construction would probably have been the same as in the case of the bankruptcy and insolvency acts, that is, judgments had been held to bind those lands only of which the conusee was seised beneficially; but trusts at the period of which we are speaking had not made their appearance, and therefore judgments have been held to bind all lands of the conusee, whether vested in him beneficially, or in the character of trustee. But of course the cestui que trust will be protected from the legal process by application to a Court of Equity (≈).

(y) 11 E. 1; 13 E. 1, st. 1, c. 18; 13 E. 1, st. 3; 27 E. 3, st. 2, c. 9; see Co. Lit. 289, b. (z) Finch v. Earl of Winchelsea,

1 P. W. 277; Burgh v. Francis, 1 Eq. Ca. Ab. 320; Medley v. Martin, Finch, 63.