1819. OLIVER V. at any time hereafter, any person or persons shall be come bankrupt, and at such time as they shall so become bankrupt, shall, by the consent and permission of the true owner and proprietary, have in their possession, BARTLETT. order, and disposition, any goods or chattels, whereof they shall be reputed owners, and take upon them the sale, alteration, or disposition as owners, that in every such case the said commissioners, or the greater part of them, shall have power to sell and dispose the same, to and for the benefit of the creditors which shall seek relief by the said commission, as fully as any other part of the estate of the bankrupt." This clause does not alter the rules of evidence respecting reputation, or make that evidence, which would not have been evidence before, but merely entitles the commissioners to take property, which the bankrupt may have in his possession, order, and disposition, as reputed owner: the evidence at the trial should therefore have been confined to establish the bankrupt's possession, and acts of ordering, or disposition, and not have been extended to let in loose reputation. Such possession is not the subject of legal reputation, evidence of which is admitted only from the necessity of the case, in matters of great antiquity or points of pedigree. Possession, as reputed owner, ought to be proved by specific acts; and it is not enough for a witness to say, that he believed the party to be the owner, or that he gave him a larger credit on that account. The statute uses the words "reputed owner" as apparent owner, and as opposed to real owner; and the question is, whether this man, with the consent of the real owner, had the disposition of the goods as reputed owner; for he might have had the disposition of them as factor, broker, or servant. Under the statute, therefore, evidence might have been given of various acts of ownership, and whether those acts were done in the character of broker, servant, or master; but evidence of reputation could never have T 3 beer.. 1819. been intended to be sanctioned in such cases. In Gurr v. Rutton (a), which was very distinguishable from the present case, Gibbs C. J. said, the jury must look to BARTLETT. facts. OLIVER V. DALLAS C. J. It appears to me, that this case has nothing to do with the general rules of evidence, as to hearsay or reputation, but turns entirely on the construction of a clause in the statute of James. It is said to be the object of the statute to ascertain reputed ownership, and so it is; for if a party exercises a power over property, he shall be considered real owner, to put this property in the power of his creditors. The statute says, "If any persons, at such time as they shall so become bankrupt, shall, by the consent and permission of the true owner and proprietary, have in their possession, order, and disposition, any goods or chattels :" the consent of the owner is to be taken as established by the exercise of acts of disposition over the property, throwing it on the other side to shew that no such consent was given. Then follow the words, "whereof they shall be the reputed owners, and take upon them the sale, alteration, or disposition, as owners." The word "reputed" is the emphatic word of the statute, to distinguish between the real and the apparent owner; and how is it to be ascertained that a party is the reputed owner, except by the admission of evidence to that effect? Whether abstractedly such evidence be proper, I will not here examine, because it is not necessary: the point here is, whether, under the circumstances of this case, and the enactment of the statute of James, the question, "Is the party, or is he not, reputed owner?" is a question necessary and proper to be put. I think it is a necessary and proper question. In these cases, the principal difficulty that arises, is, to ascertain who is the reputed owner; and (a) Holt, N. P. G. 328. 1819. OLIVER V. this is much more a question of fact than of law. In Muller v. Moss (a), Lord Ellenborough says, the reputed ownership is a fact which ought to be found; and so it is laid down in a prior case in Bosanquet and Puller (b). BARTLETT. I am, therefore, clearly of opinion, that evidence of reputation was properly introduced here. It is said, the case in Holt does not decide the present case: if it were necessary to resort to it, I think it does. There, in an action by the assignee of a bankrupt claiming property which the bankrupt was alleged to have had in his possession and disposition as the reputed owner, at the time of his bankruptcy, it was held competent for the Defendant, who had paid a valid consideration for the property, to give evidence of a contrary reputation, and to resist the claim of the Plaintiff, under the statute 21 J. 1. c. 19. s. 11., upon those grounds. Gibbs C. J. there says, "What is reputation of ownership? It is made up of the opinions of a man's neighbours; it is a number of voices, as it were, concurring upon one or other of two facts." And so I say here: beyond this it is not necessary to go. Whether reputed ownership could be proved in any case, without the evidence of facts to support it, I do not now decide; but, in the present instance, evidence of the reputation, supported by numerous facts, has been properly admitted. PARK J. I also wish to be understood as not giving any opinion on the abstract question, whether reputed ownership may be proved by evidence of the reputation without any facts to support it: but here we have many facts; and one of the witnesses, after stating various acts of ownership on the part of the bankrupt, ends his testimony with," and therefore I thought Roberts the owner." My Brother Blosset has urged that the word (a) 1 M. & S. 338. (b) Lingham v. Biggs, 1 B. & P. 87.? 1819. OLIVER ບ. BARTLETT. "reputed," in the statute, is only used in the sense of apparent." It may be so; but on examining the preamble, we shall clearly see that it was the object of the statute to protect creditors from the effects of a false reputation. Lawrence J. says, in Horne v. Baker (a), “the question in these cases is rather a question of fact than of law;" and how is the fact to be made out? By the opinions of men, who have seen the party do certain acts, and, from those acts, have reputed him to be the owner of the property which may be in question. The case in Holt is exactly to the point. One witness has said, he was induced to continue his credit from the appearance held out; and this is the very case for which the statute meant to provide. owner. BURROUGH J. This is a question merely on the statute of James; and if we reject the evidence which has here been offered, we must also reject the word " reputed." Without going into the doctrine of evidence at large, we need only confine ourselves to the circumstances of the present case. Every disposition of the property in question was made by the bankrupt, and his acts alone gave rise to the reputation that he was the real Some of the witnesses might perhaps have given evidence of the reputation, without speaking of any specific act of ownership; but possession naturally gives rise to the idea of property, and it was not necessary that every witness should connect facts with the statement of reputation. If no case had been decided, I should be clearly of opinion that this evidence was properly received; but the very point has been laid down by the late Lord Chief Justice of the Common Pleas. There are various ways, in which the reputation of ownership might have been got rid of. It might have been shewn, for instance, that the bankrupt disposed of the property (a) 9 East, 241. as as executor, and that the Plaintiffs were deceived by this Lawes Serjt. was to have shewn cause against the rule. (a) Richardson J. absent. 1819. OLIVER V. BARTLETT. ATKINS and Others, Assignees of TREDGOLD, a Bankrupt, v. SEWARD and Others. IN this action, the Defendants, pursuant to statute (a), gave notice of their intention to dispute, at the trial of the cause, the validity of the commission of bankrupt issued against Tredgold, and the trading, act of bankruptcy, and petitioning creditor's debt, upon which the commission was founded. The case came on for trial before Holroyd J. at the Winchester Spring assizes, 1819; and after evidence adduced by the Plaintiffs, touching the matters mentioned in the notice, the Plaintiffs were nonsuited. The Judge certified, that the trading of Tredgold was admitted, and that the petitioning creditor's debt and the bankruptcy of Tredgold were duly proved. On the taxation of costs, the prothonotary thought he was not authorized by the statute, 49 G. 3. c. 121., to allow the assignees the costs of proving the matters contained in the Defendants' notice. Pell Serjt. now moved for a rule to refer it to the prothonotary to tax the costs of the Plaintiffs, occasioned by the Defendants having given notice of their intention (a) 49 G. 3. c. 121. s. 10. June 18. The assignees of a bankrupt, when nonsuit ed, are not en titled, under 49 G.3. c. 121. S. Io, to the costs of proving, after notice to do so, the commis sion, trading, act of bankruptcy, and petitioning creditor's debt. to |