Open main menu

Page:United States Reports, Volume 2.djvu/70

This page needs to be proofread.


64 Cases ruled and adjudged in the typo. and in the other being merely the Faélor of fhipments, made _ V�V originally to Robert Duncan if Co. on the foie account of Prior, the plaintilh but delivered over by them to Pollard, on the fame aecount_: And it was contended, ttl. That ifthe joint {hip- ments remarried in fpecie, or, if the goods were fold, but no money paid, or bonds or notes taken for the value, fo that the property could be fpeeilieally traced, Pnl-e was entitled to his moiety :—-And, 2dly. That Price was entitled to the whole of the goods, or their proceeds, in the cafe of the lhipments made for his fole ufe. But conlidering the fubjeé]: in the order purfu- ed by the defendant’s Counfel, On the point, it was obferved, that the refemblanoe be- tween the llatute of _7um:: til:. and the a& of Ailcmbl , is fo llrong, that the latter may almoll: be faid to be a copy of, the for- mer. In both, it was obvioully tl1e delign of the Legillature, to transferthe aftual property of the bankrupt, and nothing more, to the general benefit of his creditors ; unlcfs, indeed, in the cafe of afale made by the bankrupt, and the goods being after- wards allowed to continue in his pollellion and nfe. The 20th feélion of the ae}, it is true, is not introduced by a preamble, iimilar to that whichis contained in the Englilh llatute ; but the general preamble to the whole aél: mull be taken as having fome relation to all the parts; and tltat is fufhciently explanato- Z of the Legillative meaning on the prefent fubjeél. Though, . erefore, the claufe is unrellrained in terms, and feems to ex- tend to all the goods in the banl:rupt's pollcllion ; yet this lati- tude of exprellion mulls be controuled by the decilions on the llatute of 7avu.r; for, there is no material variance between the two laws; and under the llatnte of _7mm·.r, though the bank- rupt is in polfellion of the goods, if he is only empowcd to dif- pofe of them in trufl for another, they are not_ liable to the bankruptcy, either in law or equity. t P. IV}m. gu. Even at common law, indeed, the Vendor of goods, which llill remain- ed in his pnlfellion, might give a fullicient title to fecond Ven- dee; for, it {lull be prefumed, as to all other perfons, but the parties to the lirll contr.t&, that, with the pollbllion, he {till rc- tains the property. The cafe of Factors, however, has been ex- cepted from the llatute of 21 fir. 1. contrary to the exprefs words, for the fake of trade and mcrchandize. r. Ar}. 232. 2 IG:. 58;. t. YZ Rip. 619 ; and thc fame principle will pro- duce the fame conli:qucnce, in conllruing the acl of Pt·nwl-ua- nk:. 'l`he cafe in 1 Ari. 174. 1 Vez. 365 could not have been faved by the preamble of the ilatute ; but only by the ge. rteral principle, which is the fame hcrc, as in Euglnml, of pro- teé`ting a trull: unaccompanied by fraud. Cowp. 2 32. Goods lcft to fell with one, who fells on commiilion, are not within the llaaute. BM. N. P. 262. The trult of Faétors is deliniltcj. mr