transmutation of the property, may, in all cases, be avoided, upon the retirement of a partner, by his assigning to the remaining partner all the effects in trust to pay the debts; because then, notwithstanding there may not be a subsisting joint possession, the property would continue subject to the joint demands, and would not, by the simple fact of possession, be converted into separate estate (a). The statute of James is not repealed, and of course those sections of the late general bankrupt act, in which the provisions of the statute of James have been embodied are not rendered inoperative, as to shipping, by the Ship Register Acts (b); for these statutes relate to transfers made by the act of the party only (c), viz. from a former owner to a new owner, and where the transfer is capable of being effectuated in the ordinary way, by the mere operation of an instrument of assignment from the one party to the other, and do not relate to transfers deriving their effect by peculiar provision or operation of law, as assignments by commissioners of bankrupt to assignees under the bankrupt laws do, or titles passing to executors or administrators in case of death. In these cases a title may be transmitted without any of the forms required by the statutes; and as a title may be transmitted without these forms in the case of bankruptcy generally, it may be so done in a case falling within the scope and object of the statute of James (d). Therefore, where A., the owner of a ship, duly assigned his in (a) Ex parte Fell, 10 Ves. 347. And see Ex parte Williams, 11 Ves. 6. Ex parte Martin, 19 Ves. 491. S. C. 2 Rose, 331. (b) 26 Geo. 3. c. 60. 34 Geo. 3. c. 68. 4 Geo. 4. c. 41. The provision in the 6 Geo. 4. c. 16, s. 72, that nothing therein contained shall invalidate any transfer or assignment of any ship, or any share thereof, made as a security for any debt, either by way of mortgage or assignment, duly registered according to law, seems, independently of authority, to admit that to all other than the excepted cases, the enactment applies. (c) Bloxam v. Hubbard, 5 East, 422. (d) Robinson v. M'Donnell, 5 Mau. and Selw. 228. Hay v. Fairbairn, 2 B. and A. 193. Monkhouse v. Hay, 2 Brod. and Bingh. 114. S. C. 4 B. Moore, 549, 8 Price, 256. Mair v. Glennie, 4 Mau. and Selw. 240. Ex parte Hill and In re Sharpe, Mont. Dig. of New Decis. in Bank. 2d part, p. 85. overruling the cases of Curtis v. Perry, 6 Ves. 739. Ex parte Yallop, 15 Ves. 60. Ex parte Houghton, 17 Ves. 251. S. C. 1 Rose, 177. terest in it to B., and B. became the registered owner, but by his permission A. continued to have the same in his possession, order, and disposition, until he became bankrupt, it was holden that A.'s assignees were entitled to the ship (a). And under a commission of bankruptcy against two partners, ships registered in the name of one of them, but in the ordering and disposition of both, form part of the joint estate (b). On the same principle, a ship registered in the name of two partners, but which is left in the order and disposition of one of them, will pass to the assignees of the latter on his bankruptcy (c). It is a sufficient compliance with the terms of the registry acts, that the names of the several owners appear on the registry, without its being there stated in what proportions they are interested. Thus, where the names of two partners in trade appeared (amongst others) on the certificate of registry as owners, the Court of King's Bench determined, that the registry acts did not prevent the showing how, and in what proportions, the several owners were respectively interested; and though the partners might derive title under different conveyances, yet, if their shares were purchased with the partnership funds, and treated by them as partnership property, and the partners became bankrupts, they were to be considered joint property (d). It now remains to be enquired whether the statute applies to, and in what cases it affects, the interest which a dormant partner may possess in the joint estate. It was for a long time doubtful whether, where a dormant partner suffered the ostensible partner to appear to the world as sole owner of the whole of the partnership property, and to continue as such owner down to the time of his act of bankruptcy, the share or interest of the dormant partner therein was to be considered as being in the order (a) Hay v. Fairbairn, and Robinson v. M'Donnell, supra. Burn, 1 Jac. and Walk. 378. (b) Ex parte (c) Kirkley v. Hodgson, 1 B. and C, 588. (d) Ex parte Jones, 4 Mau. and Selw. 450. and disposition of the ostensible partner, with the consent of the true owner, within the meaning of the statute. In the first case on this subject, which came before Lord Hardwicke, the bankrupt was possessed of undivided property as tenant in common, and it was held not to be such a possession as to make the interest of the other tenants distributable under the commission (a). In a subsequent case (b) an issue was granted to try the question of partnership, and the result does not appear; but Lord Alvanley, then Master of the Rolls, expressed a strong opinion that a secret partnership did not prevent the operation of the statute. But in Coldwell v. Gregory (c) the Court of Exchequer expressly decided that a dormant partner was not within the statute; and therefore that where his share of the joint property was suffered to remain in the custody of the ostensible partner who became bankrupt, it did not pass to his assignees, because the bankrupt had such an interest and qualified property in the dormant partner's share as to destroy the essential requisites of a reputed, as distinguished from a true ownership. This latter determination, however, did not meet with general approbation, and its authority was much shaken by what fell from Lord Eldon on several occasions (d). And in a late case the Court of King's Bench determined, that the statute did extend to those cases of tenancy in common, in which the bankrupt tenant in common was allowed by his co-tenant to appear to the world as sole owner of the property, and to use it for his own exclusive (a) Ex parte Flyn, 1 Atk. 185. And see Mucklow v. Mangles, 1 Taunt. 318. (b) Binford v. Dommett, 4 Ves. 756. (c) 1 Price, 119. S. C. 2 Rose, 149. (d) See Ex parte Barrow, 2 Rose, 254. Ex parte Dyster, Ib. 256. In re Colbeck, Buck, 53. In Smith v. Watson, 2 B. and C. 412, Best, J., alluding to the objection there taken, that a secret partner was virtually excepted out of the statute, observed, "I cannot, indeed, readily conceive any case more completely within the mischief "which the enactment was intended to remedy. For, if a secret partnership could be "set up as an answer to assignees, claiming property which had been left in the order "and disposition of the bankrupt, as apparent owner, enormous debts unconnected "with the partnership business, might be contracted upon the credit gained by the "possession of property, which a person wholly unknown to the creditors might claim, to the exclusion of their just demands." advantage, and to have an order and disposition of it, which could only be consistent with a several ownership. There the sole owner of a ship assigned three fourth shares of it to a creditor as a security for his debt, and all the forms required by the Ship Registry Acts, as to the transfer, were duly complied with; but nothing further was done to make it notorious to the world that there had been any such assignment or any change of property; and the sole owner, down to the period when he became bankrupt was suffered to continue as apparent owner of the whole; and it was decided, that he continued to be the apparent owner of the shares assigned with the consent of the true owner, and therefore that those shares passed to his assignees as property in his order and disposition (a). The principle of this decision was attempted to be reconciled with that of Coldwell v. Gregory, by distinguishing between property which originally belonged to the bankrupt and his co-tenant, although the whole was suffered to remain in the visible possession of the bankrupt, and that of which the bankrupt was originally the real and sole owner, and so apparently continued down to the time of his bankruptcy, notwithstanding a conveyance by him of an undivided interest in the property to a third person as a partner (b). But this distinction appears for that purpose to be unfounded; for in a more recent case in which the property in dispute was originally partnership property, and was originally in the control of one partner alone, and so continued up to the date of his bankruptcy, the same Court decided that it was a case not only within the words of the statute, but within the mischief which that enactment was intended to remedy, and consequently that the determination of the Court of Exchequer could not be supported. In that case A. and B. were partners, (a) Kirkley v. Hodgson, 1 B. and C. 588. See 4 Geo. 4. c. 41, s. Lingard v. Messiter, 1 B. and C. 308. X but the whole of the business was carried on by and in the name of A., B. never appearing to the world as a partner; and, at the dissolution of the partnership by effluxion of time, all the partnership stock and effects, by agreement between them, were left in A.'s hands, who was to receive and pay all the debts due to and from the concern, and to repay by instalments the capital brought in by B.; A. having continued for a year and a half to carry on the business as before, became bankrupt, and it was held, that all the partnership property and effects so left in A.'s hands, and also the debts due to the concern, passed to his assignees, being in his order and disposition at the time he became bankrupt (a). And the fact of the dissolution of the partnership previously to the bankruptcy of the ostensible partner, makes no difference; for it has been determined, that where a firm consists of a dormant and an ostensible partner, and the latter becomes a bankrupt, the whole property will pass to his assignees, notwithstanding that the partnership is subsisting at the time of the bankruptcy (b). Under a joint commission, separate creditors will be allowed to prove their debts for the purpose of assenting to, or dissenting from, the certificate (c); but they cannot vote in the choice of assignees; for, by the statute (d), only those creditors can vote, who are entitled to prove their debts, by right under the act of parliament, and without an order of the Lord Chancellor. Formerly separate creditors could not prove under a joint commission, without a special application in each particular instance; and although Lord Rosslyn made a general order (e), allowing them in every case to prove, yet that does not bring them within the operation of the statute, they being still considered as coming in under the (b) Smith v. Watson, Ibid. 401. (d) 5 Geo. 2. c. 30. See the 6 Geo. 4. c. 16. s. 61, 62. (a) Ex parte Enderby, 2 B. & C. 389. |