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holden 2 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 o; according to the rule, that, where the computation 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

z Hunt v. Mortimer, 10 B. & C. 44.
a Cook v. Rogers, 7 Bingh. 438.
b Per Parke, J. Morgan v. Brundrett,

2 Nev. & Man. 287. 5 B. & Ad. 289.
S. C. A party who seeks to avoid a
payment or transfer of goods, on the
ground that it was voluntarily made
by a trader in contemplation of bank-

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.

, 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 f 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 motion to set aside the nonsuit, concurred 8 in opinion with the chief justice. And in Godson v. Sanctuary, 4 Ad. & El. 255. the Court, took into the account the fraction of a day, in computing the two months specified in the 81st section. The trading h must be before the imprisonment.

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.

Although the trader is, during the twenty-one days in a progressive course of committing an act of bankruptcy i, yet the act of bankruptcy is not complete until the expiration of the twenty-one days, and consequently a commission cannot regularly issue until that time; for, in order to obtain it, there must be an affidavit that the party has committed an act of bankruptcy. The property of the bankrupt vests in the assignees by relation either from the time of the arrestk or the going to prison, as the case may be. A sheriff's officer having arrested a defendant (who was dangerously ill) on mesne process in his own house, left him there in the custody of a follower, not named in the warrant, until he was recovered; it was holden that this was such a legal custody, that if the imprisonment, of which this was a part, were continued for two months, (now twenty-one days, it would constitute an act of bankruptcy. A penalty due to the crown for smuggling is a debt within this statute m.

Or having been arrested, shall escape out of custody.

an

A. having been arrested for debt in Kent, on the 31st of March ", was, on the sixth of May following, brought up by

habeas corpus, in order to be turned over: on the road to the judges' chambers, A. was permitted to call at an house in the city of London, and was carried thence to a judge's chamber to be bailed, and accordingly was bailed, but instantly there surrendered by his bail in discharge of themselves, and thereupon committed to the King's Bench prison, where he lay above two months. It was adjudged, that this passing through another county, by the permission of the sheriff, was not an escape within the meaning of this act.

g Thomas and another, assignees of per Abbott, C. J. See Lester v. Gar.

Houlbrooke, v. Desanges and another, land, 15 Ves. Jr. 248. Sir W. Grant, 2 B. and A. 586. See also Sadler v. M. R. Leigh, 4 Campb. 197. where Ld. El- h Exp. Lynch, 1 Mont. & Bl. 453. lenborough, C. J. held, that when the i Gordon v. Wilkinson, 8 T. R. 507. execution and act of bankruptcy (a k King v. Leith, 2 T. R. 141. denial to a creditor) were on the 1 Stevens v. Jackson, 4 Campb. 164. same day, it was open to inquire 6 Taunt. 106. which had the priority, and in Saun- m Cobb v. Symonds, 5 B. & A. 516. derson v. Gregg, 3 Stark. 73. S. P. n Rose v. Green, 1 Burr. 437.

V. Of Property in the Possession of the Bankrupt as

reputed Owner.

By stat. 6 G. 4. c. 16. s. 72. If any bankrupt, at the time he becomes bankrupt, shall, by the consent and permission of the true owner thereof, have in his possession, order, or disposition, any goods or chattels, whereof he was reputed owner, or whereof he had taken upon him the sale, alteration, or disposition as owner, the commissioners shall have power to sell and dispose of the same for the benefit of the creditors under the commission : Provided, that nothing herein contained shall invalidate or affect any transfer or assignment of any ship or vessel, or any share thereof, made as a security for any debt or debts, either by way of mortgage or assignment, duly registered according to the provisions of an act of Parliament made in the fourth year of his present majesty, intituled An Act for the Registering of Vessels (11).

The language of this clause is," at the time he becomes bankrupt, by the consent of the true owner.See Lyon v. Weldon, 2 Bingh. 334. Storer v. Hunter, 3 B. & c. 380. Bayley J. Exp. Watkins, i Dea. 296. Smith v. Topping, 5 B. & Ad. 674. Townley v. Crump, 4 Ad. & Ell. 58. and post p. 223. Shawv. Harvey, 1 Ad. & Ell. 920. The general view of the provision is, to prevent traders from gaining a delusive credit, from a false appearance of their circumstances, to the misleading and deceit of those who may trade with them. Choses in action i have been holden to fall within the description of goods and chattels; as also debtsk; and if left in the disposal of the bankrupt, he is the proprietor. So a right to print a newspaper, so mortgages or sales upon condition of goods, as well as absolute sales m; and a mortgage by one partner to another of a moiety of stock in trade, is not distin

i Ryal v. Rolle, 1 Vezey, 348. 1 Atk. 1 Longman v. Tripp, 2 N. R. 67.

165, S. C. 1 Wils. 260, S. C. m Ryal v. Rolle, ub. sup. Hall v. Gur. k Per Lord Eldon, C. in exp. Ruffin, ney, 3 Doug. 356.

6 Ves. 128.

(11) This proviso is new. Before this act, where A., the owner of a ship, duly assigned his interest in it to B. as a security for a debt, and B. became the registered owner, but by his permission A. continued to have the same in his possession, order, and disposition, until he became bankrupt; it was holden *, that A.'s assignees were entitled to the ship. • Kay v. Fairbain, 2 B. and A. 193. See also Robinson v. M'Donnell, S. P.

post. tit. Shipping.

р

VOL. I.

guishable from a mortgage to a stranger", if the mortgagor is suffered to continue in possession as visible owner.

The principal difficulty in deciding questions on this clause lies in ascertaining whether the bankrupt is reputed owner or not. When this fact is settled, the application of the statute is easy; for from the reputed ownership false credit arises ; from that false credit arises the mischief, and to that mischief the remedy of the statute applies. These questions have much more of fact in them than law °; and hence it seems proper to leave it to the jury P to say whether, under the circumstances, the bankrupt had the reputed ownership of the goods at the time.

Cases within the statute.-A., a brewery, in partnership with B., mortgaged to C. in trust for B. his, viz. A.'s moiety of the utensils, stock in trade, debts, profits, &c. for securing a sum of money lent to him by B., but continued in possession of the stock, &c., and received the debts as if in partnership with B., and afterwards became a bankrupt; it was holden by Lord Hardwicke, Ch. assisted by Burnet, J., Parker, C.B. and Lee, C. J., 1st. On the authority of the case of Stevens v. Sole, cited 1 Atk. 170, that a conveyance of goods and chattels, by way of mortgage, or with condition of redemption, was within the statute, and that the mortgagee or vendee upon condition “true owner and proprietor," within the meaning of that statute. 2dly. That “goods and chattels” included debts; and in this case notice of the assignment of the debts to the partner not having been given, the assignees of the bankrupt were entitled to dispose of them for the benefit of the creditors in general. 3dly. That the mortgage to C. in trust for B. the partner, was not to be distinguished from a mortgage to a stranger, under the circumstances of this case, the trustee not having interfered. That if it had been intended to take the case out of the statute, B. when he became entitled to A.'s moiety, should have had the sole and not a joint possession only; that A. having continued in possession after the conveyance as visible partner, and received debts, &c. by the permission of B., had the order and disposition of the goods and chattels, and was one of the reputed owners as much as B. Another point was made ", whether B. by the loan to A. his partner, did not gain a special lien on A.'s moiety of the partnership effects; but it was determined that he had

was

n S. C.
o Per Buller, J. in Walker v. Burnell,

Doug. 319, recognised by Lawrence,
J. in Horn v. baker, 9 East, 241.
Lawrence, J. 9 East, 241.

q Ryal v. Rolle, 1 Vezey, 348. 1 Atk.

165. I Wils. 260. cited in Smith v.

Smith, 4 Tyr. 53. r I Vesey, 373.

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