1818. ARMSTRONG v. BALDOCK. tion of debtor and creditor subsist between the former owner and the purchaser of goods; yet if the purchaser become the proprietor of the goods under a regular bill of sale from the sheriff, the goods are protected against a subsequent execution, notwithstanding that after the bill of sale, and until the execution is levied, the former owner be permitted to continue in the possession of them. Kidd v. Rawlinson, 2 Bos. & Pul. 59, Lady Arundell v. Phipps, 10 Ves. 139. Watkins v. Birch, 4 Taunt. 823. S. P. And the donor's continuance in the possession of the goods which form the subject of the donation is not in all cases a mark of fraud; as where a donee lends his donor money to buy them; and, at the same time, takes a bill of sale of them for securing the money, the bill of sale is not fraudulent. Bull. N. P. 258. Neither does the rule in Edwards v. Harben, apply to a case where the actual proprietor of goods commits the custody of them to a But in third person, to whom they did not originally belong.Dawson v. Wood, 3 Taunt. 256. The notoriety of the transaction, also, will legalize a transfer of goods, although no actual possession be taken of them by the transferree, but the former owner be permitted to remain in the possession of them. Twyne's case, 3 Rep. 80. Kidd v. Rawlinson, 2 Bos. & Pul. 61. Leonard v. Baker, 1 Maul. & Selw. 251. cases where possession is necessary to be taken, the change of possession must be complete; and, therefore, a joint possession with the assignor is insufficient, (Wordallv. Smith, 1 Campb. 338. Paget v. Perchard, 1 Esp. N. P. C. 205 :) unless such a possession be bonâ fide. Benton v. Thornhill, 7 Taunt. 149.-A bill of sale of goods, supported by a valuable consideration, is valid as between the parties to it, and against a creditor with whose knowledge and assent it was given, although it is unaccompanied with the possession.Steel v. Brown, 1 Taunt. 381. 1818. IN SWAIN. MORLAND, Esq. N this action the question was, whether a writ of extent was entitled to priority over a writ of execution under the following circumstances? It appeared, that a writ of execution, at the suit of the plaintiff had been issued against George Sage and Thomas Pomfret, which was indorsed to levy 4091. 138. 8d. The defendant was sheriff of the county of Kent, and under the writ of execution (which was directed to him) he had made a seizure of the goods of Sage and Pomfret, part of which were sold on the 15th of November, 1817, and the remainder on the 17th of that month; and, before twelve of the clock of the last day, the whole of the goods were removed from the premises on which the sale took place. On the 17th of November, at six of the clock in the evening, a writ of extent against Sage and Pomfret, was left at the office in town of the sheriff of Kent. Lens, Serjt., for the defendant, admitted, that the goods which were sold on the 15th, were free from the objection as to the priority of the extent; but contended, that as there could be no fraction of a day against the prerogative of the crown, the crown had the preference in respect to the goods sold on the 17th; since the writ of extent was on that day delivered at the sheriff's office. 1818. DALLAS, C. J. enquired, whether there were any cases which decided, that, after sale and delivery under a writ of execution, a writ of extent was enMORLAND. titled to priority? SWAIN v. Copley, Serjt., observed, that it was doubtful, from the case of Thurston v. Mills, 16 East. 254, whether, even after the entry of, and seizure by the sheriff under the writ of execution, the writ of extent was entitled to priority; but that a contrary opinion prevailed in the exchequer. (a) A verdict was then found for the plaintiff, subject to a case. (a) See Rex v. Wells and Allnutt, 16 East. 278. n. (a). I See Mr. West's Treatise on Extents, p. 98 to 114. 1818. A B was con It appeared in evidence, that the plaintiff the owner of the brig Dolphin, which he had veyed to the defendant by bill of sale. On the 20th of April, 1818, the defendant executed a bond of that date to the plaintiff; the condition of which recited that he, the defendant, was under advance for the brig, and that, by way of security, the plaintiff had made a bill of sale of the brig to him; and the bond was conditioned for the defendant's execution of a bill of sale of the brig in favour of the plaintiff on payment of the amount of the advances and interest. The bill of sale from the plaintiff to the defendant was not, produced; neither was any register, in which the plaintiff was described as owner: indeed it appeared that the brig was registered in the name of the defendant solely. On the 11th of September, 1818, the defendant sold the ship for the sum of 1400l. to a person of the name of Grant, and by a bill of sale of that date conveyed it to him. After the execution of the bill of sale to Grant, the defendant, on being applied to by the plaintiff, promised to render an account to him of the produce of the sale of the ship, and of his disbursements; and to pay to him the balance which should appear to be due. The plaintiff having closed his case, 1818. PROUTING 2. HAMOND. Copley, Serjt., and F. Pollock, for the defendant, insisted, that it did not appear that the ship belonged to the plaintiff; and that, therefore, the action could not be maintained. This question depends upon the construction to be put upon the ship-registry acts, which have declared that the title to a British ship shall not be complete without registration, and shall be evidenced only by the documents and instruments mentioned in those statutes. The register and other instruments ought consequently to have been produced. In Ex parté Yallop, 15 Ves. jun. 60, the registry of a ship was held to be conclusive evidence of the property, even against the claims of the creditors of one of the purchasers, whose name did not appear on thẽ face of the register as being an owner. If, instead of bringing this action, the plaintiff had filed a bill in equity for an account, and the defendant had put in a general demurrer, the bill must have been dismissed. Battersby v. Smyth and Others, 3 Madd. 110. And in that Court, where the documents give to a person the apparent ownership, no bill can be maintained for a transfer, or for an account of the proceeds. Thompson v. Leake, I Madd. 39. A plaintiff, by coming into a court of law, cannot stand in a better situation than he would have done if he had resorted for relief to a court of equity, since both Courts must be regulated by the same principle of decision. As, therefore, the defendant, at the time of the sale to Grant, appears to have been the sole registered owner, he cannot be called upon to account to any person for the proceeds of the ship, since the ship itself appears from the documents to have been his own exclusive |