in 1774. Cowp. 117. It was there stated in terms for the first time; and it may be considered as an excrescence on the bankrupt laws which is to be watched, and not extended t, nor to be acquiesced in unless strictly proved. The cases prior to Harman v. Fisher, viz. Alderson v. Temple, 4 Burr. 2235, and Martin v. Pewtress, 4 Burr. 2477, were cases of gross and palpable fraud. The case of Harman v. Fisher was this:Fordyce, at five o'clock in the morning, just going to commit an act of bankruptcy, ordered his servant to take a letter containing certain bills to a creditor in discharge of a debt, and in the letter he tells the creditor that he has the honour to shew him that preference which he conceives is certainly his due. About an hour afterwards, Fordyce absconded and went to France. This was holden to be void, Lord Mansfield, C. J. observing, that this was done "pursuant to no contract: in performance of no obligation; in no course of dealing; without the privity of the creditor, or call on his part for the money, and without the probability of the notes being delivered before an act of bankruptcy was committed." Then followed the case of Rust v. Cooper, where it was expressly stated, that the goods were delivered in contemplation of bankruptcy and in order to give the defendant a preference. But even there, Lord Mansfield says, "If in a fair course of business a man pays a creditor who comes to be paid, notwithstanding the debtor's knowledge of his own affairs, or his intention to break, yet, being a fair transaction in the course of business, the payment is good; for the preference is there got consequentially and not by design." So if a creditor call for payment before the intention of voluntary preference can be accomplished", it is sufficient to take the case out of the rule. So a transfer of property made under the apprehension of a prosecution for forgery, is valid. In Poland v. Glyn, 2 D. and R. 311. and 4 Bingh. 22. n. Abbott, C. J. told the jury, that the object of the bankrupt law being to divide the whole of the bankrupt's property equally amongst his creditors, if a tradesman found himself in such a situation, that in the judgment of any reasonable man a bankruptcy was inevitable, no voluntary payment by him could be good. The jury found for the plaintiff, the assignee of bankrupt; and the court refused to disturb the verdict; Bayley, J. observing, t See the opinions of Parke J. and Pat- x De Tastet v. Carroll, 1 Stark. N. P. C. 88. Lord Ellenborough, C. J. B. R. M. T. 56 Geo. 3. S. C. on motion for N. T. Atkins v. Seaward, Winton Lent. Ass. 1819. Holroyd, J. S. P. See also Reed and others v. Ayton, 1 Holt, N. P. C. 503. and Arbouin v. Hanbury, 1 Holt, N. P. C. 575. S. P. that it is a rule, that if a person be in such a situation, that he must be presumed to think bankruptcy probable, then if he makes a payment with a view to put one creditor in a better situation than the rest, such payment cannot be supported. But see Flook v. Jones, 4 Bingh. 20. and Fidgeon v. Sharpe, 5 Taunt. 545, in which last case, Gibbs, C. J. says, "by the common law, he [a trader] may pay any one: the general effect of the statutes on the subject of bankrupts, is, that all payments made before bankruptcy are legal and valid, but a certain class of cases has arisen, in which certain payments have been supposed to be made in fraud of the bankrupt laws, and are therefore fraudulent and void. But I find in all the cases, from Fordyce's to the present, the fact found, that the act was done in fraud of the bankrupt laws: it must be an act then, not only that in effect contravenes the bankrupt laws, but it must be done with intent to contravene them and in contemplation of bankruptcy. The innocence or guilt of the act depends, then, on the mind of him who did it; and it cannot be in fraud of the bankrupt laws, unless the actor meant it should be so." And in the concluding part of the same opinion the C. J. Gibbs thus observes, "The court agree with Lord Mansfield's doctrine in Fordyce's case, that the thing must be intended in fraud of the bankrupt laws. The contemplation of insolvency is one step, and affords a strong presumption towards the contemplation of bankruptcy, but it does not go all the way." B. a booksellery, in September 1807, applied to the defendant, a pawnbroker, to discount three bills for him, which he had drawn upon C. and D. The defendant gave him cash for them, but soon after becoming suspicious of B.'s credit, he asked him, whether they were not accommodation bills: B. answered that they were. The defendant then required some security to be put into his hands, in case the bills should not be paid when they became due. In consequence of this application, B. at different times, between November and February, deposited with the defendant various parcels of books to the value of about 3001. for the purpose of being sold for his benefit, if the bills should not be duly honoured by the acceptors. These books were chiefly brought by B. in a hackney coach in the evening. It likewise appeared that he had compounded with his creditors two or three years before, which circumstance must have been known to the defendant who had lent him money to pay the stipulated composition. B. committed an act of bankruptcy in the beginning of March, and the commission was sued out y Crosby v. Crouch, 2 Camp. 166, 11 East, 256. against him on the 17th of that month; the bills then remaining in the defendant's hands unsatisfied. It was contended, on the part of the plaintiffs, that the defendant had unduly obtained possession of the books by a voluntary preference. Lord Ellenborough: "How is this a case of voluntary preference? The bankrupt parted with the books upon the defendant's importunity. The bills were not due, but the bankrupt was liable upon them, and the defendant had a right to ask for further security. The defendant had not a right of action when the books were deposited with him; but the bills constituted a good petitioning creditor's debt, and might have afforded him the means of compulsion. Strictly, only the acts of a trader subsequent to his bankruptcy are void. Precedent acts supposed to be in contemplation of bankruptcy have likewise been invalidated; but this is an excrescence upon the bankrupt laws. The cases upon the subject have gone far and far enough, and I am not disposed to give them any extension. If the debt had been due here, the preference certainly would not have been fraudulent. It wants voluntariness in which the fraud consists. The consideration upon which a payment made to an importunate creditor of a debt actually due has been allowed to be valid, has not been that he might resort to a suit to enforce payment, but that his demand repels the presumption that the bankrupt upon the eve of bankruptcy made a distinction among his creditors, and spontaneously favoured one of them to the prejudice of the rest. A demand of further security for a debt not yet due has the same effect; and in neither case is there any fraud upon the bankrupt laws, on which ground alone transactions previous to bankruptcy can be set aside." Plaintiffs nonsuited. On a motion to set aside the nonsuit, the court were of opinion, that the delivery of the goods did not constitute an act of voluntary preference, so as to render it fraudulent and void; that in order to constitute such voluntary preference, two things must concur: first, that the delivery should be voluntary on the part of the bankrupt; and, secondly, that at the time of such delivery, there should be a contemplation of bankruptcy. In the present case, the proposition for giving further security, came from the creditor, and not from the bankrupt. Hartshorn v. Slodden, 2 Bos. and Pul. 582. was cited as in point; see also Smith v. Payne, 6 T. R. 152. So where money was advanced by A. to B. for the purpose of enabling B. to execute an order for the E. I. Company upon an agreement that A. should receive the money for the order, and repay himself, and A. did so receive it; this was holden not a fraudulent preference; although A. knew at the time of the loan that B. was insolvent. But in a mixed case, in which the debtor had an object in favouring the particular creditor, but in which the creditor also before he knew of such a disposition on the part of the debtor had urged and importuned him for payment; and payment was accordingly made; the judge left it to the jury whether the payment were made in contemplation of bankruptcy, and under fear of compulsion, or voluntarily and the jury having found that it was made voluntarily and with a view to favour the particular creditor, the court a refused to disturb the verdict. "The proper definition of a fraudulent preference is a voluntary preference moving from the bankrupt in favour of a particular creditor and in contemplation of bankruptcy." A creditor obtains a preference in contemplation of an intended deed of composition, which would be fraudulent against the creditors under that deed; the composition going off, the creditor may hold his securities against a commission of bankruptcy subsequently issued, and not contemplated at the time of the preference; Wheelwright v. Jackson, 5 Taunt. 109. It will be remarked, that this statute for the first time, makes a fraudulent surrender of copyhold, and also a fraudulent gift, delivery, or transfer of goods, chattels, an act of bankruptcy, although such gift, &c. be not by deed. Under stat. 1 Jac. 1. c. 15. s. 2. a fraudulent surrender of copyhold was not an act of bankruptcy, not being such a conveyance as would defeat or delay creditors, not being liable either to a fieri facias or elegit. Exp. Cockshott, 3 Bro. Ch. C. 502. S. 5. Having been arrested, or committed to prison for debt, or on any attachment for non-payment of money, shall upon such arrest, &c. or upon any detention for debt, lie in prison for 21 days; or having been arrested or committed to prison for any other cause, shall lie in prison for 21 days after any detainer for debt lodged against him and not discharged. The day on which the arrest is made is to be included in the reckoning; according to the rule, that, where the com z Hunt v. Mortimer, 10 B. & C. 44. 2 Nev. & Man. 287. 5 B. & Ad. 289. ruptcy, must shew, not merely that the trader was insolvent, or knew that he was insolvent when it was made, but also that he then contemplated bankruptcy. Atkinson v. Brindall, 2 Bingh. N. C. 225. See also 2 N. C. 444. c Glassington v. Rawlins, 3 East 407. putation of time is to be made from an act done, as in this case from the arrest of the trader, the day when such an act is done [that is by the party himself, or, as it seems, to the party himself (which was this case) and of the time of doing which the party must therefore be presumed to be cognizant; otherwise the day is to be excluded; Pellew v. Hundred of Wonford, 9 B. and C. 134.] is to be included, and the period, which under stat. 21 Jac. 1. c. 19. s. 2. was two lunar months, is now twenty-one days. But if there is not a continuing imprisonment from the time of the arrest, then the intention of the legislature appears to have been that the time should run only from the time of the party's going to prison, and not from the arrest. Hence where a trader was arrested for debt on the 4th of November 4, but allowed to go at large until the 8th, when he returned into custody, and being afterwards moved into the King's Bench prison, lay there upwards of two months, it was holden, that the act of bankruptcy which he thus committed, had reference only to the 8th when he returned into custody, and not to to the 4th when the original arrest took place. So where a trader, being arrested, put in baile, and afterwards surrendered in discharge of his bail, and continued above two months in prison, it was holden, that he was a bankrupt only from the time of surrender, not from the time of his arrest. But where sham bail was put in before a judge as a means to get the trader turned over to the prison of the court, and he was accordingly surrendered and sent there, it was holden that the imprisonment was to be computed from the arrest; there being an unbroken imprisonment from the time of the arrest, and the bailing being considered as a mere form to turn the bankrupt over from one custody to another. A trader was surrendered in discharge of his bail on the 1st of June, 1818, between six and eight o'clock in the evening. On the same day, between one and two o'clock in the afternoon, a writ of fieri facias was delivered to the defendants, who, by their officer, entered into the premises of the bankrupt and seized the goods: the bankrupt lay in prison more than two months afterwards. It was insisted, on the part of the plaintiffs, that the act of bankruptcy having been committed on the same day that the goods were taken in execution, the plaintiffs must in law be considered as having the property of the goods vested in them during the whole of the day, because there could not be a fraction of a day. But Abbott, C. J. thought there might, and nonsuited the plaintiffs; and the Court afterwards, on d Barnard v. Palmer, 1 Campb. 509. e Tribe v. Webber, Willes 464. f Rose v. Green, 1 Burr. 437. stated more fully post, p. 208. |