possession in the common law - HiddenMysteries Information Central

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original Act 3 required that the bankrupt should by the consent and permission of the true owner and
proprietary have in his possession, order and disposition goods whereof he should be reputed owner. The last
Act, that of 1883, 4 requires that the goods shall be in the possession, order or disposition of the bankrupt, in
his trade or business, by the consent and permission of the true owner, under such circumstances that the
bankrupt is the reputed owner thereof.
Hence decisions 5 upon. these clauses have given rise to phrases which seem to imply that an owner may
obtain possession of goods by merely doing all he can to obtain possession. Now it is perfectly true that if B.'s
goods are in C.'s possession, B. can prevent their becoming assets in C.'s bankruptcy by doing all he can to
obtain possession, or indeed by doing very much less. They will not be assets in C.'s bankruptcy unless they
are in C.'s possession by B.'s consent and permission, and B. can prevent their becoming assets by showing in
any unequivocal way that he no longer consents to C.'s possessing them. 6 But apart from this it cannot be [70]
said that one gains possession by doing all one can to gain it. Certainly an unsuccessful effort made by the
grantee of a bill of sale will not prevent the goods from being still in the grantor’s possession and liable to be
treated as assets in his bankruptcy under the Bills of Sale Acts, for those Acts do not, like the Bankruptcy Act,
say anything about the consent of the true owner. 1 The true principle is not that a man is deemed to be in
possession as a reward of diligence in endeavouring to get possession, but that, where possession in law is
founded on de facto possession, the necessary and sufficient de facto possession is that which the nature of the
thing dealt with admits of.
As concerning delivery of part in the name of the whole, it may take place and have effect as a delivery of
the whole if such is the mind of the parties. There is not any rule or presumption of law that a partial delivery
shall have such an effect. ‘It is now held that the delivery of part operates as a constructive delivery of the
whole only where the delivery of part takes place in the course of the delivery of the whole, and the taking
possession by the buyer of that part is the acceptance of constructive possession of the whole,’ 2 i. e.
possession by the hands of some one who now begins to hold as his agent. ‘The delivery of a part may be a
delivery of the whole if it is so intended.,’ but not otherwise, and it seems that the burden of proof is on the
party asserting such an intention. 3
When part of a bulk of goods is delivered in the name of the whole, this is, as to the remaining bulk, a
particular case of the change of possession by a change of the character in which they are held by the actual
custodian. This branch of the subject is of such importance as to demand a separate section for its treatment.
[71]§ 7. Delivery of goods by attornment.
The transfer of possession in goods, as distinguished from property, is an incident in the performance of the
contract of sale which is of special importance in two ways; by reason of the Statute of Frauds, as regards the
proof of the contract in certain cases; and under the rules of the common law derived from the law merchant
as regards an unpaid vendor’s rights. By the Statute of Frauds one of the alternative conditions on which a
contract for the sale of more than 10l. worth of goods is ‘allowed to be good’ is the acceptance and actual
receipt of some part of the goods. As Lord Blackburn has said, ‘the receipt of part of the goods is the taking
possession of them. When the seller gives to the buyer the actual controul of the goods, and the buyer accepts
such controul, he has actually received ,them.’ 1 The modern decisions have settled that there is acceptance as
well as receipt when the buyer begins to possess the part of the goods in question with reference to the
contract of sale and as part of the goods designated by or appropriated to it, whether he intends to accept them
absolutely or to reserve whatever rights the contract may give him of rejecting them as not according to
sample, or the like. 2 It is also held that there may be actual receipt by delivery to a common carrier for
conveyance to the buyer, or to a warehouseman to hold subject to his direction; the carrier is said to be the
buyer’s agent to receive though not to accept. This is at first sight anomalous. The Courts have looked more to
3 21 Jac. I. c. 19. s. 10, 11.
4 46 & 47 Vic. c. 52. s. 44.
5 West v. Skip, I Ves. Sen. 239, is an early instance; see p. 244.
6 See e. g. Ex parte Harris, 8 Ch. 48; Ex parte Ward, 8 Ch. 144.
[70] 1 See e. g. Ex parte Jay, 9 Ch. 697,705; Ancona v. Rogers, 1 Ex. Div. 285, 293
2 Willes J., Bolton v. L. & Y. R. Co., 1866, L.R. 1 C.P. 431, 440.
3 Lord Blackburn, Kemp v. Falk, 1882, 7 App. Ca. 573, 586.
[71] 1 Blackhurn on Sale, Part I, ch. 2, init.
2 Page v. Morgan (1885), 15 Q.B. Div. 228.