If the bankrupt have sent forward any goods to buyers, whose insolvency would give the bankrupt a right to stop the goods in the transit, this right accrues to the assignee, who may exercise it in the same way, and to the same extent, and with the same effect, as the bankrupt himself could have done (v)

* Leases in England are sometimes of great value, as they run for a long time at a nominal rent. Leases of that kind exist in this country, but are much more rare. Here, in the very great majority of cases, the bankrupt who holds any property as lessee, pays as much for the use of it as it is worth, and the assignee would gain nothing by taking the lease. He has, however, always the right to do this, and not unfrequently we see advertisements of the sale of such interests by assignees. But the question has even more importance here than in England, whether an assignee is bound to take a lease held by his bankrupt, and what amounts to an acceptance by an assignee.

We have already considered an analogous topic, the acceptance of a devise by the assignee, (x) A lease differs from a devise materially, in that the lessee always pays something, which may be the full value of what he gets. The general principle that a grantee may be presumed to accept, which certainly conforms to the fact, is far more applicable to a devise than to a lease. Moreover, an assignee is not a grantee; we have seen that even the name assignee is inaccurate. He is a trustee, for the creditors mainly, but in some respects for all parties. And if the question is answered on technical grounds, it may be said that at common law a lessee has no estate, and is not bound to rents and covenants until entry. But on. more general grounds, the assignee must be considered as acquiring by the bankruptcy only a right to take the lease; and, until he makes his election, the lease either remains in the bankrupt, or may be considered in abeyance. If the assignee elects not to take, the lease remains in the bankrupt with all its advantages and all its burdens, and free from all claims or right either of the assignee or of the creditors, (y)

(u) The cases cited in the preceding notes, and especially Tamer v. Trustees of Liverpool Docks, 6 Exch. 543, 6 Eng. L. & Eq 507; Akerman v. Humphery, 1 C. & P. 53; Jenkyns v. Usborne, 7 Man. & G. 675-678.

(v) Abbott on Shipping (Perkins' ed.), 614; Long on Sales. And see the chapter Stoppage in Transitu, vol. i. And, with reference to the effect of stoppage on the vendee's transferable property, it may be stated generally, that " the assignment of the commissioners does not pass any property to the assignees in goods consigned to the bankrupt which may be stopped in transitu, whether such goods are consigned to the bankrupt himself, or whether he obtains possession of them in their transit to the hands of the regular consignee." Deacon on Bankruptcy, 449, where this subject is elaborately and learnedly discussed.

(x) See ante, note {t) to the section on Assignees, p. * 467.

* The remark may be made generally, that whatever does not pass to the assignee remains in the bankrupt, free from all claim (z)1

Assignees may take possession of leasehold property in many ways; and their possession may be implied from their words or acts. If they actually take possession, it will be presumed they do so under their title as assignees. If they demand and receive rents or profits or other advantages from the leased property, this will be deemed, generally, a taking possession, (a) But the mere offering the lease for sale may be regarded as only a justifiable experiment to ascertain whether it is worth anything, * so that it will be for the benefit of their trust that they should take possession, (b) They cannot take in part, and reject in part, unless what seems to be a whole is in fact only several wholes put together, and capable of severance.

(y) Id Copeland v. Steven,, 1 B. & Ald. 593, Lord Ellenlwough said: "An assignment by commissioners of bankruptcy is the execution of a statutable power, given to them for a particular purpose; namely, 'the payment of the bankrupt's debts. Nothing passe* from them, for nothing was vested in them Whatever passes, passes by force of the statute, and for the purpose of effecting the object of the statute. And therefore, the assignees of a bankrupt are not bound to accept a term of years that belonged to the bankrupt, subject to the rents and covenants; for the object of the statute and of the assignment being the payment of the bankrupt's debts, and the assignees under the commission being trustees for that purpose, the acceptance of a term which, instead of furnishing the means of such payment, would diminish the fund arising from other sources, cannot be with-in the scope of their trust and duty. And in this respect, such a term differs from the debts of the bankrupt, and his unencumbered effects and chattels.11 The court, on examination, come to the fur ther conclusion, that as to such estates the effect of the commission is suspended until acceptance. " And if the operation of the deed of assignment be suspended, his estate must necessarily remain in the bankrupt during the period of suspension: for it cannot be in abeyance, and must exist in some person. And the respective situations of the bankrupt and the assignees will be similar to those of a lessor and his lessee before entry," - the assignees having what might be called an interesse termini. Bonrdillon v Dalton, 1 Peake, N. P. 238; Turner v. Richardson, 7 East, 335; Wheeler v. Bramah, 3 Camp. 340; Ex parte Williams, 3 Mont. & A. 210; Ex parte Culnes, 1 Madd 76; Ex parte Banbury, 7 Jur. 660; Ex parte Vardy, 3 Mont D. & D. 340, Ex parte Norton, id. 312; White v. Griffing, 44 Conn. 437.

(z) Smith v. Gordon, 6 Law Reporter, 313; Webb p. Fox, 7 T. R. 391; Fowler v. Down, I B & P. 44; Turner v. Richardson, 7 East, 335 The case of Webb v. Fox was an action of trover for 300 yards of quilting. Defendants pleaded not guilty, on which issue was joined, and secondly, the bankruptcy of the plaintiff before the time of toe conversion stated in the declaration, setting forth the trading, petitioning creditor's debt, bankruptcy, commission, assignment, etc Plaintiff replied, that he became possessed of the goods after assignment, and was so possessed without molestation, etc, till defendants took the said goods, etc. Defendants rejoined, that plaintiff had not obtained his certificate. Demurrer to the rejoinder. Ashhurst, J., said: " I take the general rule to be, that a bankrupt has a right against all persons but the assignees; here a lawful possession in him is admitted, and that is sufficient for wrong-doers "In Smith v. Gordon, above cited, Ware, J., said: " If the assignee elects not to take, the property remains in the bankrupt, and no one has a right to dispute his possession. His possessory title is good against all the world but his assignee."