The course of legislation was this: By 6 Geo. IV. c. 16, s. 131, no bankrupt was liable upon a 6 Geo. IV. promise to pay a debt discharged by a certificate, unless the promise were in writing. c. 16. By B. A. 1849 (u), and B. A. 1861 (x), no action could be B. A. 1849. brought on such a promise, whether verbal or written. Those Acts are repealed by B. A. 1869 (y), and that Act is silent on the subject; but by s. 49 thereof, in any proceedings in respect of any debt discharged, the bankrupt may plead his discharge. Under this Act, a bill of exchange given, after the repeal of the old Acts, for a debt barred while they were in force, was held void (*); and a promise to pay a debt discharged, without any new consideration, is void as nudum pactum (a), but such promise will be valid, if there was any new consideration (6). Such promise, however, will not be valid if the bankrupt has not been discharged, as where a composition has not been completed (c). Any bill of sale, warrant of attorney, or promissory note, merely for the old debt, was void under the repealed statutes (d); but, if the new security were under seal, which requires no consideration, it would seem to be valid. B. A. 1861. (7.) Fraudulent agreements with creditors. Securities given by a bankrupt to a creditor, without communication to the other creditors, by which the creditor obtains a preference over them, are void (e); although no creditor be actually induced by the fraud to come in (ƒ). Securities, the consideration for which is the withdrawal of the (u) S. 204. (x) S. 164. (y) 32 & 33 Vict. c. 71. (z) Rimini v. Van Praagh, 8 L. R. Q. B. 1. (a) Jones v. Phelps, 20 W. R. 92, V. C. Bacon; Heather v. Bell, 2 C. P. D. 1. (b) Jakeman v. Cook, 4 Ex. D. 26. (e) Exp. Barrow, 18 Ch. D. 464, C. A. (d) Peakman v. Harrison, 14 Eq. 484, V. C. Malins; Exp. Hart, 9 Jur. 402; 2 D. & L. 778; Sheerman v. Thompson, 11 A. & E. 1027; Kidson v. Turner, 27 L. J. Ex. 492. (e) Jackman v. Mitchell, 13 Ves. 581; Mare v. Sandford, 1 Giff. 288; 5 Jur. (f) Fawcett v. Gee, 3 Anst. 910; Mid- Creditor creditor's opposition in the bankruptcy of the debtor, are also void (g); and also securities for a debt omitted from the schedule and secretly held in suspense until the discharge of the debtor (h). It makes no difference that the fraudulent creditor is surety for the composition (i); and a release contained in the composition deed is binding upon the fraudulent creditor (k). The trustees of the bankrupt can recover the amount received in respect of the fraudulent security (7); and the debtor also can recover the amount from the creditor if he is compelled to pay the fraudulent security in the hands of a third party (m), and even if he has paid the money under the fraudulent agreement to the creditor himself (n). Where a security is given to some creditors for more than the composition, the executing creditors are not bound by the composition (o); and the fraudulent creditor can neither recover upon the fraudulent security, nor share in the composition (p). Indeed, it would seem that a creditor, who has practised a fraud of this sort on the other creditors, will not, if the composition is not paid and the debtor becomes bankrupt, be allowed to prove under the bankruptcy for either his original debt or the composition (9). And where a debtor obtained the consent of one of his creditors to a composition by a secret promise to pay his debt in full, which proving must refund sums promise he performed and afterwards became bankrupt, the creditor improperly was not allowed to prove a new debt, without first deducting the paid under composition. sums so paid to him beyond the former composition (»). By the B. A. 1883, s. 54, pars. 3 & 9, all the property of the bankrupt vests in the official receiver until the appointment of a trustee, and then in the trustee. (g) Jackson v. Davison, 4 B. & Ald. 691; Rogers v. Kingston, 2 Bing. 441. (h) Tabram v. Freeman, 2 Cr. & M. 461; 4 Tyrw. 180. (i) Wood v. Barker, 11 Jur. N. S. 905, (k) Exp. Oliver, 4 De G. & J. 354; But see (n) Smith v. Cuff, 6 M. & S. 160; Smith v. Bromley, 2 Doug. 697, note F. 6; Horton v. Riley, sup.; Atkinson v. Denby, 7 H. & N. 934; 8 Jur. N. S. 1012; affirming 7 ib. 1205, V. C. Bacon; Lensberg's Policy, 7 Ch. D. 650. But see Wilson v. Ray, 2 P. & D. 253; Belcher v. Sambourne, 8 Jur. 858, Q. B.; Higgins v. Pitt, 4 Exc. 312. (0) Dauglish v. Tennant, 2 L. R. Q. B. 49; Cullingworth v. Lloyd, 2 Beav. 385; Wood v. Barker, 1 Eq. 139, V. C. Stuart. See Bush v. Shipman, 10 Jur. 507, L. C.; Robs. Bky. 233, ed. 3; 249, ed. 4. (p) Howden v. Haigh, 3 P. & D. 661. (2) Robs. Bk. 177, ed. 3; 188, ed. 4; Re Cross, 4 De G. & S. 364, note. (r) Robs. ib.; Exp. Minton, 1 M. & A. 440; 3 D. & C. 688. sentation in It is a misdemeanour for any person adjudged bankrupt, and for False repreany person whose affairs are liquidated in pursuance of the B. A. bankruptcy. 1869, punishable with imprisonment for any term not exceeding two years, with or without hard labour, if he be guilty of any false representation, or other fraud, for the purpose of obtaining the consent of his creditors, or any of them, to any agreement with reference to his affairs, or his bankruptcy, or liquidation (s). Where the security is the result of an illegal agreement to compound a felony it will be void (t), but it is not enough to show that the creditor was thereby induced to abstain from prosecution (u). (s) The Debtors Act, 1869, 32 & 33 Vict. c. 62, s. 11 (16); B. A. 1883, s. 163. (t) Ward v. Lloyd, 6 M. & Gr. 785; 7 Scott, N. R. 499. (u) Flower v. Sadler, Q. B. D. 83, affirmed 10 ib. 572, C. A.; see Williams v. Bailey, 1 L. R. H. L. 200; Seear v. Cohen, 45 L. T. 589, Q. B. At common law. Statute of 12. Statute of limitations. (1.) As affecting leaseholds and chattels. AT common law, chattels were said to be bound from the teste of the writ; and, under the Statute of Westminster, leaseholds were subject to the writ of elegit, and execution of a moiety might have been thereby had. Since the Statute of Frauds, neither leaseholds nor chattels were bound, except from the time of the delivery of the writ of execution to the sheriff (a); but that was only as between the creditor and third parties, for there are cases to show that, as against the debtor himself, the goods were still bound from the teste of the writ (b). The chattels, real and personal, were bound from the delivery of the writ until the return thereof; but if the writ was returned without a sale, it no longer bound them (c). (a) 29 Car. II. c. 3, s. 16; Burdon v. Kennedy, 3 Atk. 738; Jeanes v. Wilkins, 1 Ves. S. 195. (b) Exp. Williams, 7 Ch. 317, L. J. Mellish, and inf. p. 140. (c) Williams v. Craddock, 4 Sim. 313; Causton v. Macklew, 2 ib. 242. chattels An alteration has been made in this respect, and by statute (d) Purchase of a bona fide purchaser of chattels, after the writ and before actual between writ seizure, without notice of the writ, is protected; and under this and seizure. statute, where a debtor assigns chattels to trustees for his creditors, notice to the debtor is notice to the trustee: otherwise a debtor would always be able to defeat an execution (e). If the debtor is possessed of a term for years, the sheriff may Terms either extend it, that is, deliver it to the creditor on the extended extended. value, or he may sell the term to the creditor as part of the personal estate of his debtor, at a gross price appraised and settled by the jury (ƒ); for the sale is made by the sheriff, and not by the creditor (g), and the sale may be by private contract (). The debtor may save the term by tender to the sheriff prior to its assignment to the creditor, or by tender in Court before actual assignment by the sheriff; but if no such tender is made, the property is altered by the assignment of the sheriff, and the creditor may dispose of it without being accountable for the profits (i). property. But, by the mere seizure of the sheriff, the property of the Seizure does debtor in the term, or even in goods, is not altered (k). After not alter the seizure, the sheriff has only a special property in the goods, which will enable him to maintain an action for them (7). If, however, the judgment be afterwards reversed, the sale and assignment will be void, and a writ of restitution awarded. But if the term had been sold under a fi. fa., and the judgment had been reversed, the sale would have been valid (m). In the case of chattels real, the property remains in the debtor, Chattels real. until the execution of an actual assignment by the sheriff to the purchaser; and the debtor may recover them at law from the execution creditor himself if he have purchased without an actual written assignment (»). Notwithstanding the Statute of Westminster, it has been held, No lien on that, by the operation of the Statute of Frauds (o), the plaintiff has execution. (d) 19 & 20 Vict. c. 97, s. 1. (e) Hobson v. Thelusson, 2 L. R. Q. B. 642. (f) 2 Inst. 395; Fleetwood's case, 8 Rep. 171 a; Dalt. Sher. 137; 1 & 2 Vict. c. 110, s. 13. (g) Stratford v. Twynam, Jac. 418. (h) Exp. Villars, 9 Ch. 432. (i) Gilb. Ex. 34; 2 Saund. 68; Comyn v. Brandlyn, Moore, 873. (k) Playfair v. Musgrove, 14 M. & W. 239; 15 L. J. Exc. 26; Giles v. Grover, 9 Bing. 158. (1) Wilbraham v. Snow, 2 Wins. Saund. 47 a. (m) Goodyere v. Ince, Cro. Jac. 246; Bac. Abr. Execution D. (n) Doe v. Jones, 9 M. & W. 372; Playfair v. Musgrove, sup. (0) 29 Car. II. c. 3, s. 16. chattels till |