ruptcy, not being protected. Fearnley v. Wright, 1 Scott, N. R. 657; 6 Bing. N. C. 446; Wright v. Fearnley, 5 Bing. N. C. 89. A delivery of goods bona fide made in part pay. ment of a previous debt, after a secret act of bankruptcy committed by the debtor, was a protected payment. Cannan v. Wood, 2 Mees. & W. 465. If payment of a bill was made after an act of bankruptcy, the burthen of showing that it was a bona fide payment was cast upon the receiver. A trader, in a state of insolvency, and concealing himself from his general creditors, after a secret act of bankruptcy, in part payment of a debt, delivered a bill of exchange to a creditor, who was acquainted with his place of retreat, and with whom he was in friendly communication: it was held, that this was not a protected payment. Bagnall v. Andrews, 4 Moore & P. 839; 7 Bing. 217. A payment by a partner, who had committed an act of bankruptcy, of a partnership debt due before the bankruptcy, was not protected. Craven v. Edmonson, 6 Bing. 734; 4 M. & P. 623. The payment which is contemplated by the act is by the bankrupt himself or his authorized agent. Therefore a payment made by a third person without the knowledge of the bankrupt, or a payment extorted by compulsion of legal process (by foreign attachment, for example, even after judgment) from a third person, who happened to have effects of the bankrupt in his hands at the time, cannot be said to be a payment by the bankrupt, or by a person on his behalf, when the bankrupt was not even conscious that his property was in the hands of such third person. Hovil v. Browning, 7 East, 154. In order to render a payment to a bankrupt valid, the sale, in respect of which the payment is made, must be a bonâ fide sale in the usual course of business. Devas v. Venables, 4 Scott, 123; 3 Bing. N. C. 400. It seems that a payment for goods before they are delivered is not in the ordinary course of trade (per Bayley, J., 3 B. & C. 416), unless it be founded upon an usage of the trade or a previous bargain. Bishop v. Crawshaw, 3 B. & C. 415; 5 Dowl. & R. 279. See Belton v. Jayer, 1 Ry. & M. 265; Cox v. Morgan, 2 Bos. & P. 398; Ex parte Farr, 9 Ves. 515; Holroyd v. Whitehead, 3 Camp. 530; Harwood v. Lomas, 11 East, 127; Vernon v. Hall, 2 T. R. 48; Tamplin v. Higgins, 2 Camp. 312. A payment made more in the nature of a general advance to the bankrupt than in payment for any particular goods was not protected. Crowfoot v. London Dock Company, 4 Tyrw. 967. If a banker, after notice of an act of bankruptcy by his customer, receive money on his account, and pay his drafts, he is liable to repay the assignees under a fiat afterwards issued. Vernon v. Hankey, 2 T. R. 113; Hammersley v. Purling, 3 Ves. 757.

A trader committed a secret act of bankruptcy by leaving his house, and, on going away, desired his foreman to carry on the business in his absence. The foreman accordingly continued the business, and received various sums of money

for goods sold and for debts due to his master; he also made several bonâ fide payments to creditors for the expenses of housekeeping, and for wages due to himself. Most of these receipts and payments were before the foreman had any notice of the act of bankruptcy. A fiat having been subsequently issued, the assignees sued the foreman in an action for money had and received for the whole amount received by him from the time of the act of bankruptcy to the date of the fiat. It was held, first, that the action was maintainable. Kynaston v. Crouch, Law J., 1845, Exch. 324; 9 Jur. 584; 14 Mees. & W. 266. Secondly, that the defendant was not entitled to set off those payments against the assignees. Ib. But it seems that, as to the payments made by him before notice of the act of bankruptcy, he might have protected himself by a special plea, founded on the bankrupt acts. It is presumed that no transaction, which is in itself an act of bankruptcy, will be protected by the 133rd sect. of the act 12 & 13 Vict. c. 106. See Bevan v. Nunn, 9 Bing. 107; Hall v. Wallace, 7 Mees. & W. 356.

An execution against the goods of a bankrupt is valid within Effect of the 133rd sect. of the act 12 & 13 Vict. c. 106, when the sheriff execution. executes the bill of sale, notwithstanding it contains a clause

of indemnity to the sheriff by the execution creditor, and is not to be executed by the latter until after he has had notice of an act of bankruptcy.

The sheriff being in possession of the goods of T. under a fi. fa., on the evening of Saturday, the 20th of December, executed a bill of sale of the goods seized to L., the execution creditor, containing the clause of indemnity by L. to the sheriff. T. had previously committed an act of bankruptcy, upon which he was afterwards made a bankrupt. Notice of this act of bankruptcy was sent to L.'s residence, but, in consequence of his absence from home, was not received by him until Saturday; L. did not execute the bill of sale until Monday the 22nd, when the goods were delivered to him it was held, that the property passed upon the execution of the bill of sale by the sheriff, and that the execution was therefore executed and levied by seizure and sale within the 133rd sect. of the act 12 & 13 Vict c. 196. Christie v. Winnington, 8 Exch. 287; 22 L. J., Exch. 212. See Murray v. Earl of Stair, 2 B. & C. 82. Goods seized by a sheriff under a fi. fa. were valued and delivered to the execution creditor under a bonâ fide purchase by him, but no bill of sale was executed: it was held, that there was a valid sale of the goods. Hernaman v. Bowker, 11 Exch. 760.

:

An execution is bonâ fide completed by sale, if there is a bill of sale to the execution creditor to the full value and the amount is actually paid over. Loader v. Hiscock, 1 Fost. & F. 132. Where goods are taken in execution upon a judgment obtained in an adverse action before the filing of the petition for adjudication, but not sold until after that period,

the proceeds will belong to the assignees. Hutton v. Cooper, 6 Exch. 159; 20 L. J., Exch. 153.

If goods in the possession, order and disposition of a bankrupt at the time of the act of bankruptcy be taken out of his possession by the true owner after such act but before the fiat or petition, without notice of the previous act of bankruptcy, the assignees cannot recover them, this being a transaction with the bankrupt which is protected by the 125th sect. of the act 12 & 13 Vict. c. 106, and an order made by the Court of Bankruptcy under that section, to sell such goods for the benefit of the creditors, is not final or binding against the true owner. Graham v. Furber, 14 C. B. 410; 23 L. J., C. P. 51; 18 Jur. 226; 2 Com. Law R. 452; Ex parte Barlow, 22 L. J., Bank. 15; Quartermain v. Bittlestone, Ib.; C. P. 105; 13 C. B. 132.

A trader took possession of goods, under an agreement with the owner that he should keep possession for a twelvemonth on payment of a certain sum, but, if the money was not paid on a certain day, the owner should be at liberty to retake them. The goods continued in the possession of the trader until the stipulated time for payment, when, the money not having been paid, the owner sold them after an act of bankruptcy committed by the trader, but before the fiat had issued. This was held to be a protected transaction. Young v. Hope, 2 Exch. Rep. 105.

Under 133rd sect. of the act 12 & 13 Vict. c. 106, any act by the owner of goods in the possession of the bankrupt, which if done before the act of bankruptcy would have prevented the application of sect. 125 as to reputed ownership, is a transaction within sect. 133, if done without notice of an act of bankruptcy; as, if the owner demanded from the bankrupt possession of the goods. Brewin v. Short, 5 Ell. & Bl. 227; 1 Jur. N. S. 798; 24 L. J., Q. B. 297. But where the owner, knowing that it was intended by the trader to execute an assignment of all his goods for the benefit of his creditors, went to take possession, but found the assignee under the assignment, which was an act of bankruptcy, in possession, and upon stating why he came, was told by the assignee that he was too late, for that the assignee was in possession under the assignment, and the trader afterwards was made bankrupt: this was held not to be within the protection of above sect. 133, nothing appearing before the notice of the assignment beyond an intention to demand the goods, without anything being actually done. Ib. Lord Campbell, C. J., observed :-"We cannot adopt such vague language as that any attempt to obtain possession would do,' or 'that it is enough if the true owner does all he can to obtain possession,' for the attempt may be frustrated without the true owner having seen the goods or the bankrupt, or any one representing him; and he may have done all he could to obtain possession without having been able to do

anything. But if before the date of the fiat, and before notice of an act of bankruptcy, the true owner had bonâ fide demanded possession of the goods, and, communicating with the bankrupt, had done that which would show that the goods did not longer with his consent and permission remain in the possession, order and disposition of the bankrupt, we should hold that the title of the true owner would not be defeated by a prior secret act of bankruptcy. But a mere intention to demand the goods and to get possession of them, we hold not to be a 'dealing' or 'transaction' within the meaning of the 133rd section, and we think that nothing beyond an intention to this was proved before notice of the act of bankruptcy. Ib. pp. 237, 238.

ruptcy.

Neither this act nor the repealed statutes, which render Notice of dealings with persons who afterwards become bankrupt valid, acts of banknotwithstanding previous acts of bankruptcy, protect or assist those who are cognizant of such previous acts of bankruptcy, as against them the title of the assignees by relation to the time of the act of bankruptcy is available. The Gazette is not constructive notice of an act of bankruptcy. 4 B. & Ald. 530. Neither the issuing of a fiat nor the advertisement in the Gazette was notice of an act of bankruptcy. Hocking v. Acraman, 12 M. & W. 170. The issuing a commission of bankruptcy was not of itself sufficient notice of an act of bankruptcy to a debtor paying his debt to the bankrupt. Sowerby v. Brooks, 4 B. & Ald. 523. The issuing of the fiat was not of itself notice of the act of bankruptcy. Cannan v. South-Eastern Railway Company, 7 Exch. 848. Notice to any accredited agent to any body corporate, or public company, is notice to the latter. Notice of an act of bankruptcy means knowledge thereof, or wilfully abstaining from acquiring such knowledge. Where, therefore, notice of an act of bankruptcy was sent by letter to the attorney of the execution creditors: it was held, that they were not affected with such notice by the mere delivery of the letter at the attorney's office, nor until the same had been read, there being nothing to show a wilful abstaining from reading the letters. Bird v. Bass, 6 Man. & G. 143; 6 Scott, N. R. 928. Parke, B., held that, unless compelled by authority to decide otherwise, notice of an act is knowledge of it brought home to the mind of the party who is to be affected by it. Cannan v. South-Eastern Railway Company, 7 Exch. 853; see Spratt v. Hobhouse, 4 Bing. 173. A trader assigned his effects to a trustee, thereby committing an act of bankruptcy. Afterwards a creditor, ignorant of the act of bankruptcy, took in execution the trader's goods comprised in the assignment. The trustee paid off the execution, and took an assignment of the goods from the sheriff. A fiat in bankruptcy having afterwards issued against the trader : it was held, that the execution creditor, who had become assignee of the sheriff, with knowledge of the act of bankruptcy,

K

Operation of execution

Notice of act

of bankruptcy.

was not protected, and that the assignees in the bankruptcy might bring trover against him for the goods. Fawcett v. Fearne, 6 Q. B. 20. A notice that a party had executed a conveyance of all his property for the benefit of his creditors is a good notice of an act of bankruptcy. Lackington v. Elliott, 8 Scott, N. R. 275. Knowledge by a creditor that a bill of sale comprised all the debtor's property was held sufficient notice to him that it was an act of bankruptcy. Lindon v. Sharpe, 7 Scott, N. R. 730. A notice by a bankrupt to an execution creditor that "he had committed several acts of bankruptcy" was held to be a sufficient notice of a prior act of bankruptcy. The notice need not state the nature or particulars of any act of bankruptcy. There are so many different kinds of acts of bankruptcy that it would be almost impossible to state with accuracy what ought to be the form of notice adapted to each act of bankruptcy. Udal v. Walton, 14 M. & W. 254; Ramsey v. Eaton, 10 M. & W. 22. Notice of a prior act of bankruptcy, served on a clerk of the plaintiff's attorney in the attorney's absence, was not sufficient, until communicated to the attorney, to take an execution out of the protection of the statute. Pike v. Stephens, 12 Jur. 746; 17 L. J., Q. B. 282.

Notice to an execution creditor that his debtor had filed a petition for arrangement, under the 76th sect. of the act 12 & 13 Vict. c. 106, is notice of an act of bankruptcy within the 133rd section of the same act, provided an adjudication of bankruptcy was filed within two months after the petition for arrangement was dismissed. Edwards v. Gabriel, 7 H. & N. 520; 8 Jur. N. S. 502; 31 L. J., Exch. 113, Exch. Ch.

A letter from the bankrupt to a creditor, saying he had resolved not to open his bank on Monday, is not notice of an act of bankruptcy, but only notice of an intention to commit such an act. Ex parte Hallifax, 2 Mont., D. & D. 544.

Notice to a sheriff's officer in possession under a fi. fa. of an act of bankruptcy committed by the defendant, is not notice to the execution creditor, although a notice to the creditor of an act of bankruptcy generally, without stating the nature of it, would be sufficient; Ramsey v. Eaton, 10 M. & W. 22 ; 6 Jur. 489; and the fact of an act of bankruptcy committed being communicated to the attorney acting in the cause for the creditor is sufficient, although the fat has been issued after the writ was lodged with the sheriff. Rothwell v. Turnbull, 1 Dowl. N. S. 778; 6 Jur. 691.

A. B., having recovered judgment against C. D., issued execution thereon, and seized his goods under a writ of fi. fa. on the 3rd of December, 1851. On the morning of the 5th a notice was given to A. B. by the solicitors of certain of C. D.'s creditors, who afterwards prosecuted a petition in bankruptcy against him. This notice stated that it was given on behalf of several creditors of C. D., that he had committed an act of