Wiggins (a), in which the Chief Judge says, "Inasmuch as there has been no proof in this case, that the horse was ever the property of the bankrupts, slight circumstances will be sufficient to show that it did not really belong to them." And Sir J. Cross also observes, "No one witness has been called on the part of the assignees, to say, that he ever gave the bankrupts credit, as being the owners of the horse." There are also various other cases, in which the mere possession of property does not carry with it the reputation of ownership, as in the case of ready furnished lodgings; which is an instance put by Mr. Justice Ashurst in Walker v. Burnell (b). And Mr. Justice Buller, in the same case, says, "Possession of goods exposed for sale in a shop may be within the statute; but the possession of furniture in a house is no more evidence of a right to that furniture, than of a right to the house." Mr. Spence, and Mr. Bellamy, for the respondents. Where the property of one of two partners is in their joint possession, it must be considered as in the order and disposition of each of the partners. [Sir J. Cross. Has it ever been decided, that where the separate property of one partner happens to be in the possession of the two, it is to be considered the property of the partnership, when the property itself does not consist of stock in trade?] [Sir G. Rose. The question is, whether by the mode of dealing, as between themselves, the furniture is not to be considered in this particular instance as the goods and chattels of the partnership.] Here there was an express stipulation, in the articles of dissolution of the partnership of Cowards and Moore, that all the furniture and other effects, which had been supplied to Moore, should (b) 1 Doug. 317. (a) 2 Deac. & Chit. 270. 1835. Ex parte and others. 1835. Ex parte HARE and others. be considered as belonging to the continuing partnership between H. and J. Coward. It cannot be denied, that the furniture was used by James Coward for the purposes of the partnership. But whether it was in the reputed ownership of James Coward, or considered to be the joint property of Henry Coward and James Coward, the petition must be in either case dismissed. Mr. Swanston, in reply. The clause in the articles of dissolution, relied on by the other side, as to the furniture supplied to Moore, cannot be intended to relate to the bulk of the furniture in the house, which was originally the property of Henry Coward. The clause in the Bankrupt Act relating to reputed ownership, it is admitted on all hands, is a harsh law, and one which ought not to be extended. The state of circumstances on which the statute is to operate is, when the property is left in the entire order and disposition of the bankrupt at the time of the act of bankruptcy. The respondents must therefore show, that at the time of the act of bankruptcy of James Coward, the furniture was reputed to be his separate property. They are bound to show, also, what the state of circumstances was, when Henry Coward committed an act of bankruptcy. But this is altogether a case in which the statute does not apply; for in no instance has it been determined, that property belonging to one of two parties, because it happens to be in the joint possession of the two, is to be considered in the order and disposition of the other partner. There are only two questions in this case for the consideration of the Court, the real ownership of the property, and the reputed ownership. Either the goods were the real property of Henry Coward, or the reputed property of H. and J. Coward. [Erskine, C. J. In Ex parte Hunter (a), (a) 2 Rose, 382. where two of three partners claimed an exclusive in- 1835. Ex parte HARE and others. 1835. Ex parte HARE and others. belong to the partnership, it has been on the ground of contract. As to the statement of part of the stock in trade being deposited in the drawing rooms, what evidence is there that the tables and chairs in those rooms were considered to be the property of the partners? But the question of reputed ownership cannot be entered into, without referring to the time of the act of bankruptcy; and here no evidence of that kind has been given. No such result, as is contended for by the respondents in this case, could possibly arise, without a contract; and there is no suggestion here that the property of one partner was by contract to be considered as partnership property, and for partnership purposes. ERSKINE, C. J.-It seems agreed on all hands, that, as between the partners themselves, this furniture would, but for the bankruptcy, have belonged to Henry Coward. But the question of property in this case is, not a question between partners in a state of solvency, but one between the creditors of one bankrupt partner, and the creditors of the other bankrupt partner. Then, was the furniture here in the reputed ownership of Henry Coward?—or was it reputed to be the joint property of the partnership? The house in which it was deposited, it is very true, was taken by Henry Coward, but the rent and other expenses were paid by the firm. The furniture was put into the house by Henry Coward, but the house, together with the furniture, was occupied for partnership purposes. The apprentices were boarded and lodged in the house, and indeed in every other respect the house appears to have been in the joint occupation of the partnership, for the purposes of their trade. The drawing-rooms were used as show-rooms; and Moore, as long as he continued a partner in the concern, resided in the house. It appears to me, that by the arrangements made between these parties, the furniture must be considered as part of the joint capital and stock of the two partners, and must be distributed between the joint creditors of Henry and James Coward. I therefore think the assignees of Fear and H. Coward have not made out their case, and that this petition must be dismissed. Sir J. CROSS.-This case depends upon a nice question of fact, which has not been distinctly proved. It was stated, first, that this house was taken and furnished by one of the partners, and was lent by him to the others, for the purposes of the partnership. If the furniture had been really lent by one partner to the other, and that circumstance had been satisfactorily established in evidence, it might have made some distinction in the case. But upon what express terms the furniture was so lent, does not in any way appear: it might probably be supplied by him, as part of his capital in the business. But in whatever manner it got into the house, it does not appear that Henry Coward had any right to remove the furniture, if he had wished to do so. It was used in common by all the partners; and when Moore goes out of the partnership, every thing remains as before, with only one exception, namely, that the addition which Moore had made to the furniture should be considered as belonging to the continuing partnership between H. and J. Coward. This, therefore, became partnership property, independently of the operation of the statute; but I think the whole of the furniture was in the reputed ownership of H. and J. Coward. Sir G. ROSE concurred. 1835. Ex parte HARE and others. Petition dismissed. |