traded again for himself, was left for several years in possession of his house, household goods, and furniture, in order to assist in settling the affairs of the bankrupt estate, the assignees repeatedly stating the goods, &c. in their accounts with the creditors, as part of the estate, it was holden, that such possession did not fall within the statute, so as to vest the goods in the assignees under a second commission, on the ground that the bankrupt had not the disposition so as to sell the goods, and that he was not the reputed owner. And Buller, J. said, that possession of the goods exposed for sale in a shop might be within the statute; but possession of the furniture in a house was no more evidence of a right to that furniture, than of a right to the house. And per Ashhurst, J. the statute certainly does not extend to every case of possession, not, for instance, to the case of a ready furnished lodging. So where the bankrupt had possession of the goods for a special purpose onlyd, and had not the order and disposition

of them.

A vendor, a warehouseman, sold to a party wines, then in his warehouse, for which a bill, accepted by the vendee, at three months, was given, the vendor putting into the hands of the vendee a note, acknowledging that he held the wines, subject to his order, rent free. The acceptance was dishonoured, and amount not paid. Afterwards, vendee became bankrupt, the wines still remaining in vendor's warehouse. It was holden, that this section did not apply; for it referred to cases where the bankrupt shall, "by the consent of the true owner," have goods in his possession; here the bankrupt, if he had possession, was himself the true owner, under the contract of sale.

Where, by agreement between B. and the defendant, B. agreed, on payment to him of a certain sum, to convey to the defendant a dwelling-house, and to deliver possession of all the household furniture and stock, and that after formal possession delivered to the defendant, B. should be allowed to remain in possession for three months without paying rent; which agreement was notorious in the neighbourhood, and the money was paid by the defendant, and a formal delivery made to him, and B. afterwards left in possession according to the agreement, who became a bankrupt whilst he so remained in possession, and before the expiration of the three

d Collins v. Forbes, 3 T. R. 316. and e Townley v. Crump, 4 Ad. and Ell. Lawrence, J., Gordon v. E. I. Com

pany, 7 T. R. 237.

58.

months; held that this was not a possession by the bankrupt within the statute.

Lastly, the possession which a husbands, living with his wife, has of the separate property of the wife, settled before marriage in trustees for her separate use, is not sufficient to bring a case within the statute; and it will not be any objection to such a settlement that the goods were not described in the deed, or referred to in a schedule annexed. It is observable, however, that if stock in trade is thus settled on the wife, for the purpose of enabling her to carry on a separate trade, if the husband intermeddles in such trade, the property I will be liable to his debts. By stat. 6 G. 4. c. 16. s. 73. if any bankrupt, being at the time insolvent, shall (except upon the marriage of any of his children, or for some valuable consideration,) have conveyed, assigned, or transferred to any of his children, or any other person, any hereditaments, offices, fees, annuities, leases, goods, or chattels, or have delivered or made over to any such person any bills, bonds, notes, or other securities, or have transferred his debts to any other person, or into any other person's name, the commissioners shall have power to sell and dispose of the same as aforesaid; and every such sale shall be valid against the bankrupt, and such children and persons as aforesaid, and against all persons claiming under him.

VI. Of Warrants of Attorney, Conveyances, and Payments made by and to Bankrupts.

The legislature, in order to provide a remedy for the injustice done to creditors by secret warrants of attorney, has by stat. 3 Geo. 4. c. 39. s. 1: [24th June, 1822,] enacted, "that after the 29th of September next, if the holder thereof shall think fit, every warrant of attorney to confess judgment in any personal action, or a true copy thereof, and of the attestation thereof, and the defeazance [which by s. 4. must be written on the same paper or parchment,] and indorsements thereon, in case such warrant of attorney shall be given to confess judgment in B. R., or such a true copy thereof as aforesaid, in case such W. of A. shall be given to confess

f Muller v. Moss, 1 M. and S. 335. g Jarman v. Woolloton. 3 T. R. 618. See also Hickenbotham v. Groves,

2 C. and P. 492.

recognised in E. of Shaftesbury v. Russell, 1 B. and C. 666.

judgment in any other court, shall, within twenty-one days after execution be filed, together with an affidavit of the time of execution, with the clerk of the docquets and judgments in B. R." And by s. 2. if at any time after the expiration of twenty-one days next after the execution of such warrant of attorney, a commission of bankrupt shall be issued against the person who shall have given such warrant of attorney under which he shall be duly found and declared a bankrupt, then, unless such w. of a., or a copy thereof, shall have been filed as aforesaid, within twenty-one days from execution, or unless judgment shall have been signed, or execution issued on such w. of a. within the same period, such w. of a. and the judgment and execution thereon, shall be deemed fraudulent and void against the assignees. The 3rd section contains a similar provision for rendering a cognovit actionem void as against assignees of a bankrupt, unless filed. But this statute does not affect the security for all purposes: but only renders it inoperative against assignees of a bankrupt. Green v. Gray, 1 D. P. C. 350. and it does not extend to warrants of attorney executed by insolvent debtors. See 11 Geo. 4. and 1 Will. 4. c. 38.

By stat. 6 Geo. 4. c. 16. s. 81. all conveyances by, and all contracts and other dealings and transactions by and with any bankrupt, bond fide made and entered into more than two calendar months before the date and issuing of the commission against him, and all executions and attachments against the lands and tenements or goods and chattels of such bankrupt bona fide executed or levied more than two calendar months before the issuing of such commission, shall be valid, notwithstanding any prior act of bankruptcy; provided the person so dealing with such bankrupt, or at whose suit or on whose account such execution or attachment shall have issued, had not, at the time of such conveyance, &c. notice of any prior act of bankruptcy; provided also, that where a commission has been superseded, if any other commission shall issue against any person comprised in such first commission, within two calendar months next after it shall have been superseded, no such conveyance, &c. shall be valid, unless made, &c. more than two calendar months before the issuing the first commission1. N. "This section (16) applies

h See Shaw v. Harvey, 1 Ad. and Ell. 920.

(16) According to Bayley, J. in Wymer v. Kemble, 6 B. and C. 482, this section only applies where there has been a prior act of

VOL. I.

to all executions levied more than two months before the issuing of the commission, whether founded on judgments after verdict, or on judgments by default or confession, the words being general, and not in any way limited or qualified: the 108th section (see post p. 228) applies only to executions on judgments by default or confession, or nil dicit, where the seizure has taken place within the two calendar months before the issuing of the commission. This construction will reconcile the two sections of the act. The 108th section, however obscure in its terms originally, has now received a judicial construction which makes it tolerably clear. The creditor, who has issued execution on a judgment after verdict, though within the two months, is entitled to a preference if the seizure was before an act of bankruptcy; but where the judgment is by default or confession, then, to entitle the creditor to a preference, there must have been a sale as well as a seizure." Per Parke, J. 4 B. & Ad. 263, 4. See also Crosfield v. Stanley, 4 B. & Ad. 87.

Goods of a bankrupt were seized under an execution at the suit of a creditor, before ten o'clock in the forenoon of the 13th of August; the commission of bankrupt issued between twelve and one o'clock on the 13th of October following; it was holdeni that the execution was valid, inasmuch as it had been levied more than two calendar months before the issuing the commission. N. B.-Where the transaction amounts to an act of bankruptcy in itself, it is not protected by this section e. g. a transfer of goods made voluntarily and in contemplation of bankruptcy, though made more than two months before the issuing of the commission, and in satisfaction of a bona fide debt, is not protected; for by the 3rd section such fraudulent transfer is made an act of bankruptcy. Bevan v. Nunn, 9 Bingh. 107.

By s. 82, all payments really and bona fide made, or which shall hereafter be made by any bankrupt, or by any person on his behalf, before the date and issuing of the commission against such bankrupt, to any creditor of such bankrupt, (such payment not being a fraudulent preference of such cre

i Godson v. Sanctuary, 4 B. and Ad. 255. See also Cowie v. Harris, 1 M. and Malk. 141.

bankruptcy; and according to Tindal, C. J. delivering opinion of court in Bevan v. Nunn, 9 Bingh. 112, the clause does not apply to any case, unless where a former act of bankruptcy is assumed to have been committed.

ditor,) shall be deemed valid, notwithstanding any prior act of bankruptcy by such bankrupt committed; and all payments really and bona fide made, or which shall hereafter be made, to any bankrupt before the date and issuing of the commission against such bankrupt, shall be deemed valid, notwithstanding any prior act of bankruptcy by such bankrupt committed: and such creditor shall not be liable to refund the same to the assignees of such bankrupt, provided the person so dealing with the said bankrupt had not, at the time of such payment by or to such bankrupt, notice of any act of bankruptcy by such bankrupt committed. And by s. 83, the issuing of a commission shall be deemed notice of a prior act of bankruptcy, (if an act of bankruptcy had been actually committed before the issuing the commission,) if the adjudication of the person against whom such commission has issued shall have been notified in the London Gazette, and the person to be affected by such notice may reasonably be presumed to have seen the same. Notice to the principal is notice to all his agents, if there be reasonable time to communicate that notice to his agents; Mayhew v. Eames, 3 B. and C. 601. Hence, notice to the Bank of England is notice to all its branch banks; Willis v. The Bank of England, 4 Ad. and Ell. 21. Under s. 82, payments really and boná fide made are valid, even in cases where the contract or transaction, upon which they are made, has taken place within two calendar months before the commission. See Coles v. Robins, 3 Campb. 183. Cash v. Young, 2 B. and C. 413. The same point was decided in Hill v. Farnell, 9 B. and C. 45, where a library of books had been purchased of a hop-merchant and paid for, without notice that the hop-merchant had at that time committed an act of bankruptcy, on which a commission was afterwards, and after the sale of the books, taken out. So giving cash for a bank post bill. But where B. having committed a secret act of bankruptcy, assigned chattels to the defendant, as a security for money lent to B. by the defendant, in trust to permit B. to use them till March, 1833, and then, if the debt were unpaid, to sell them in discharge thereof. In October, 1832, and within two months of this assignment, a fiat issued against B.; it was holden, that this could not be considered as a payment protected by the 82nd section: the word payment applied to a payment of a debt, and not to a loan of money upon the security of a transfer of goods. Cannan v. Denew, 10 Bingh. 292.

By s. 84. no person or body corporate, or public company,

k Willis v. The Bank of England, 4 Ad. and Ell. 21.