No creditor who has assented to, or in any way acquiesced in, such assignment can rely on it, as an act of bankruptcy, unless the deed be fraudulent as against him (f).

The fact that the deed was insufficiently stamped or imperfectly executed is immaterial as concerns an act of bankruptcy; but it will not be an act of bankruptcy if only intended to be delivered as an escrow (g). If three months elapse from the execution of the deed without any bankruptcy proceedings being taken, the deed cannot be impeached as an act of bankruptcy (h).

Upon the conveyance of the whole of a debtor's property for a past debt, and a further advance, the question is whether the creditor made such further advance to enable the debtor to carry on his business, and with a reasonable belief that the advance would have that effect (i).

An assignment for a past debt by a partner in an insolvent firm of all his separate assets is fraudulent, even though it does not include the partnership assets (j).

In estimating the whole of a person's property the value of his book debts is to be taken into account (k).

If there be a present consideration, not so small as to be merely colourable, it will be treated as if there were a substantial exception to the assignment of the whole; so that an assignment of all of a person's property and effects by way of mortgage, partly for a past debt and

(f) Ex parte Stray, L. R. 2 Ch. Ap. 374; Re Clement, 3 Morr. 153; Ex parte Marshall, 1 M. D. & D. 575; Ex parte Milner, 15 Q. B. D. 605; 54 L. J. Q. B. 425; 53 L. T. 652; Ex parte Perrier, 37 W. R. 480; 60 L. T. 270.

(g) Re Hollingshead, 58 L. J. Q. B. 297; Ex parte Squire, L. R. 4 Ch. 47; Bowker v. Burdekin, 11 M. & W. 128. See also Dutton v. Morrison, 17 Ves. Jun. 193; 11 R. R. 56.

(h) Ex parte Games, 12 Ch. D.

325; 40 L. T. 789.

(i) Ex parte Johnson, 26 Ch. D. 338; 53 L. J. Ch. 762; Adr.Gen. v. Lascelles, (1894) Ap. Ca. 135. See also Re Colemere, L. R. 1 Ch. 128.

(j) Ex parte Trevor, 1 Ch. D. 297. See also Ex parte Snowball, L. R. 7 Ch. 534.

(k) Ex parte Burton, 13 Ch. D. 102; Ex parte Field, id. 106, n. See also Browne v. Fryer, 46 L. T. 636.

partly for a present advance, is not necessarily an act of bankruptcy (7).

Similarly, an assignment of all the grantor's property, both present and future, including what he may purchase by the advance, does not necessarily constitute an act of bankruptcy (m).

The Act further provides that every conveyance or transfer of property, or charge thereon made, every payment made, every obligation incurred, and every judicial proceeding taken or suffered by any person unable to pay his debts as they become due from his own money in favour of any creditor, or any person in trust for any creditor, with a view of giving such creditor a preference over the other creditors shall, if the person making, taking, paying, or suffering the same is adjudged bankrupt on a bankruptcy petition presented within three months after the date of such making, &c., be deemed fraudulent and void as against the trustee in the bankruptcy. But this section shall not affect the rights of any person making title in good faith and for valuable consideration through or under a creditor of the bankrupt (n).

Where there is real and genuine pressure on the part of the creditor, which exercises an appreciable influence on the debtor's mind, and the wish to prefer is not the substantial desire, the transaction cannot be considered a fraudulent preference (o).

The property of the bankrupt divisible among his

(1) Pennell v. Reynolds, 11 C. B. R. N. S. 709; Lomax v. Buxton, L. R. 6 C. P. 107; 21 L. T. 137. (m) Ex parte Hauxwell, 23 Ch. D. 626; Lomax v. Buxton, supra. See also Ex parte Stubbins, 17 Ch. D. 58; Ex parte Pearson, L. R. 8 Ch. 667; Smith v. Cannan, 22 L. J. Q. B. 290.

(n) 46 & 47 Vict. c. 52, s. 48. See Re Liverpool & London Guarantee Co., 30 W. R. 378; Hall v. Wallace, 7 M. & W. 353; Ex

parte Lancaster, 25 Ch. D. 311; Re Washington Diamond Co., (1893) 3 Ch. 95; Ex parte Cooper, L. R. 10 Ch. 510.

(0) Brown v. Kempton, 19 L. J. C. P. 169; Re Fletcher, 9 Morr. 8; Ex parte 0. R., Re Wilkinson, 1 Morr. 65; Re Brown, L. R. 16 Eq. 391; Ex parte Palmer [1882], W. N. 130; Ex parte Reader, L. R. 20 Eq. 763; Ex parte Wheatley, 45 L. T. 80.

creditors, and in this Act referred to as the property of the bankrupt, shall comprise (inter alia) —

(i) All such property as may belong to or be vested in the bankrupt at the commencement of the bankruptcy, or may be acquired by or devolve. on him before his discharge.

(ii) The capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or before his discharge, except the right of nomination to a vacant ecclesiastical benefice; and

(iii) All goods being, at the commencement of the bankruptcy, 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 he is the reputed owner thereof; provided that things in action other than debts due or growing due to the bankrupt in the course of his trade or business, shall not be deemed goods within the meaning of this section (p).

Under the Bankruptcy Statutes prior to that of 1869, bills of exchange and promissory notes were held to be subject to the reputed ownership doctrine (9).

The reputed ownership clause in the present Act is governed, however, by the trustee's right of disclaimer of onerous property (r).

Law as to choses in action in relation to bankruptcy may be put shortly thus:

A. Subject to the exceptions indicated in a previous part of this work (s), choses in action which are

(p) 46 & 47 Vict. c. 52, s. 44. (9) Hornblower v. Proud, 2 B.

& Al. 327; 20 R. R. 456.

(r) 46 & 47 Vict. c. 52, s. 55.

See Ex parte Allen, Re Fussell, 20
Ch. D. 341; 30 W. R. 601; 47
L. T. 65.

(s) Bk. II., c. ii., Bk. III.

actually the property of the bankrupt generally pass to and vest in his trustee in bankruptcy under sect. 44 (i).

B. Choses in action which consist of debts due or

growing due to the bankrupt in the course of his trade or business, although they be actually not his property, pass to and vest in his trustee in bankruptcy if they be found to be within his possession, order, or disposition under such circumstances that he is the reputed owner thereof. C. No choses in action (other than those mentioned in B.), which are not the property of the bankrupt, pass to or vest in his trustee in bankruptcy, although they be found to be in his possession, order or disposition, under such circumstances that he is the reputed owner thereof (t).

As to what are debts growing due, see the cases cited below (u).

The debts must be debts connected with the bankrupt's business, otherwise they are not within B., for it is not intended that all debts should be included, although they happen to be within his order or disposition, and to be due to him during the period of his trading. So that where a person invests money in a joint stock company, and receives in exchange therefor the company's debenture charging their undertaking and property with the payment thereof, and the debenture holder assigns such debenture to a third person by indorsement in blank and then becomes bankrupt, the assignee will have a good title thereto as against the assignor's trustee in bankruptcy, notwithstanding that

(t) Colonial Bank v. Whinney, 11 Ap. Ca. 426; 56 L. J. Ch. 43; 55 L. T. 362; 34 W. R. 705; 3 Morr. 207; Re Stevenson [1891— 1892], 27 L. R. Ir. 309. See the older cases: Ex parte Union Bank of Manchester, Re Jackson, L. R.

12 Eq. 354; Ex parte Barry, Re Fox, L. R. 17 Eq. 113; 29 L. T.

620.

(u) Ex parte Kemp, Re Fastnedge, L. R. 9 Ch. Ap. 383; 22 W. R. 462; Ex parte Rawlings, Re Davis, 37 W. R. 142; 60 L. T. 156.

the assignee neglects to give notice to the company until after the commencement of the bankruptcy.

The mere fact that the assignor happens to be a trader does not make the debenture a debt due to him in the course of his trade. The result of such an argument would be that every investment made by a man engaged in trade would be a debt due to him in the course of his trade. The debenture may have nothing whatever to do with his trade (v).

Similarly, money charged on land may not be within the reputed ownership clause (w); and, it seems, money charged on chattels in America or elsewhere (v). As to what is a "trade or business," see references given below (x).

A person who takes in lodgers has been held to carry on a "business," though he does not provide them with board (y); but an occupation of premises by a gentleman who sells his surplus farm and garden produce does not constitute a "business" within this section (2). Merely acting as a trader, &c. on an isolated occasion is insufficient, there must be the intention to continue the occupation and gain a livelihood thereby (a).

Furthermore, it seems necessary that the business should be actually in course of prosecution at the commencement of the bankruptcy, so that where a bankrupt had ceased to trade actively prior to that date, the clause would not apply, although he might have trade debts left unpaid (6). Whether a bankrupt has permanently, or only temporarily, discontinued his business, and the

(v) In re Pryce, Ex parte Rensburg, 4 Ch. D. 685, 687, 688. (w) Jones v. Gibbons, 9 Ves. 407. Bankruptcy (x) Baldwin, [1895], pp. 263–265.

(y) Re Harrison, Ex parte 0. R., 67 L. T. 600.

(2) Re Wallis, Ex parte Sully, 14 Q. B. D. 950; 33 W. R. 733; 52 L. T. 625.

(a) Bartholomew v. Sherwood, 1 T. R. 573, n.; Ex parte Stewart, 18 L. J. Bank. 14; Re Griffin, Ex parte Board of Trade, 60 L. J. Q. B. 235; 39 W. R. 156.

(b) Ex parte McGeorge, Re Stevens, 20 Ch. D. 697; 30 W. R. 817; Ex parte Reynolds, 52 L. J. Ch. 431; 31 W. R. 323; Dawe v. Vergara, 11 Q. B. D. 241; 49 L. T. 41.