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such fraudulent alienation is itself an act of bankruptcy, whether by deed or otherwise (/).
Assignment The assignment of the whole of his property by effects, a trader is, in general, fraudulent and void (g),
whether it be a voluntary preference or not (A); and a colourable exception of some inconsiderable portion does not alter the rule (i)• But it has been recently determined that a sale, even of the whole effects of a trader, is not in itself an act of bankruptcy (k); and if the vendee acts bond fide, and gives an adequate valuable consideration for the goods, the transaction as regards him is valid, although the intention of the vendor were to abscond immediately (/). Assignment The assignment even of part only of a trader's in what effects is void, when made in contemplation of bankruptcy, and in order to give a fraudulent preference to a particular creditor (m), even where there has been a colourable sale (n). But if it be not made in contemplation of bankruptcy, the transfer will be good(o). When the transfer is not in itself an act of bankruptcy, it is the province of the jury to determine, whether the intention was fraudulent or not(p), and in contemplation of bankruptcy (jj); and whether insolvency would be the probable consequence of the assignment (r). If his circumstances might reasonably lead the debtor to believe that his bankruptcy was probable, though not inevitable, the transfer will be void (*).
(/) See Eden, B. L. p. 32; Evans's Statutes, p. 455, (3d ed.)
(g) Butcher v. Easto, 1 Dougl. 295; Worsley v. Demattos, 1 Burr. 467; see Botcherby v. Lancaster, 1 Ad. & Ell. 77; Stewart v. Moody, 1 Cr. M. & Rose. 777.
(A) Thornton v. Hargreaves, 7 East, 544.
(i) Wilson v. Day, 2 Burr. 827, 832 j Compton v. Bedford, 1 Bl. Rep. 362; Law v. Skinner, 2 Bl. Rep. 996.
(k) Baxter v. Pritchard,'l Ad. & Ell. 456 ; S. C. 3 Nev. & M. 688. It is remarkable, that none of the old cases turn on a sale accompanied with payment of the full price. See 1 Ad. & Ell. 463.
(/) Baxter v. Pritchard, 1 Ad. & Ell. 456; Rose v. Haycock, 1 Ad. & Ell. 460, n.; S. C. 3 Nev. & Man. 644, n. See per Ld. Ktnyon, C. J., WhitweIl v. Thompson, 1 Esp. 72.
When the transfer by a trader to a creditor is when not not voluntarily made, it will not be considered a fraudulent preference within the statute; as, where
(i») Bevan v. Nunn, 9 Bingh. 107; Pulling v. Tucker, 4 B. & A. 382; Morgan v. Horseman, 3 Taunt. 241; Linton v. Bartlett,
3 Wils. 47; Harman v. Fisher, Cowp. 117; Alderson v. Temple,
4 Burr. 2235; S. C. 1 Bl. Rep. 660; Hassell v. Simpson, 1 Dougl. 89, n.; Singleton v. Butler, 2 B. & P. 283; S. C. 3 Esp. 215.
(n) Rust v. Cooper, Cowp. 629.
(o) Carr v. Burdiss, 1 Cr. Mees. & Rose. 443; Morgan v. Brundrett, 5 B. & Ad. 289; Belcher v. Prittie, 10 Bingh. 408; Gibbins v. Phillips, 7 B. & C. 529; Wheelwright v. Jackson, 5 Taunt. 109; Fidgeon v. Sharp, 1 Marsh. 196; Yeats v. Groves, 1 Ves. Jun. 280.
(p) Balme v. Hutton, 2 Y. & J. 101; Flook v. Jones, 4 Bingh. 20; S. C. 12 B. Moore, 96.
(q) Gibbins v. Phillips, 7 B. & C. 529.
(r) Wedge v. Newlyn, 4 B. & Ad. 831.
(*) Poland v. Glyn, 2 D. & R. 310; S. C. 12 B. Moore, 109, n. ; 4 Bingh. 22 n.; Cook V. Caldecott, 1 M- & Malk. 522.
it is under apprehension of prosecution for forgery (t); or under apprehension of legal process (u), though such apprehension prove to be groundless (.r); or, through ignorance of his own legal rights (i/); or through the threats, or even the importunity, of the creditor (*), although the debt have not actually fallen due at the time(«). And a payment, made in pursuance of a prior special contract, cannot be considered as a fraudulent preference (b). Abon&fide A genuine sale is good, though made immediately before bankruptcy (c). Where a valuable consideration has been given for the goods, though they may have been sold considerably below prime cost, the sale cannot be impeached, if the purchaser has acted bondfide, and if he could not reasonably have known that it was made with the view of defrauding creditors (d). However, purchasing goods from
(<) Be Tastet v. Carroll, 1 Stark. N. P. C. 88.
(u) Corbouldv. Broadhurst, 1 M. & Rob. 189.
(x) Thompson v. Freeman, 1 T. R. 155.
(y) Dixon v. Baldwin, 5 East, 175.
(«) Crosby v. Crouch, 11 East, 256; Smith v. Payne, 6 T. R. 152; Bayley v. Ballard, 1 Campb. 416; Bavies v. Chippendale, 8 B. & P. 282 ; Reed v. Ayton, Holt, N. P. C. 503. [Where evidence is given of a threat, it is still for the consideration of the jury whether the threat operated, Cook v. Rogers, 7 Bingh. 438.]
(a) Hartshorn v. Slodden, 2 B. & P. 582.
(b) Hunt v. Mortimer, 10 B. & C. 44. See Cowp. 125, per Ld. Mansfield, C. J.
(c) Baxter v. Pritchard, 1 Ad. & EH. 456.
(d) Cookv. Caldecott, 4 C. & P. 315. And see Hogg v. Mit
the bankrupt at unduly low prices, affords some evidence of unfair dealing (e). A transfer by the trader (although at the time Transfer of
in an insolvent state), of goods, which in point of rescinded
fact were the bond fide property of the transferree, is valid (/); thus, where a party, who has contracted for the purchase of goods, becomes embarrassed in his circumstances before their arrival, and, without any fraudulent intention, rescinds the contract of sale, and declines accepting the goods, it will be held that, notwithstanding his subsequent bankruptcy, his act was valid, and that the goods revested in the vendor (g). But if the contract had been perfected, and the vendee, on becoming subsequently insolvent, had attempted to rescind the contract, and return the goods, it would amount to a voluntary preference, and the transaction would be void (h); as, where the vendor, by his own act, treats the goods as the property of the trader, which will be considered an election not to rescind the contract, although the trader himself may have been anxious to return the goods (i). And if the trader had the option, at the time of receiving the goods, of rescinding the contract, his right of exercising this option will be determined, if he keep the goods for a length of time; because the option ought to be exercised on the receipt of the goods, and not delayed until the trader is on the eve of bankruptcy (#). Voluntary Voluntary conveyances by the trader, whether mice void, of the whole or of part of his effects, are void as
chell, 1 Stark. N. P. C. 241; Robinson v. Carrington, 1 Mont. & Ayr. 1.
(e) See Yates v. Carnsew, 3 C. & P. 102; 1 M. & Malk. 497, 522.—Post.
(/) If the goods do not belong to the trader at the time, although he might by his own act make them his own, it is not a fraudulent preference that he declines to make them his own, and transfers them to the real owner; but, if the property in the goods has already vested in the trader independently of his own volition, he cannot divest the property and retransfer the goods, without being guilty of a voluntary preference.
(g) Salte v. Field, 5 T. R. 211; Atkinv. Barwick, 1 Str. 165; Lotat v. Parsons, Cowp. 61. See Graff v. Greffulhe, 1 Campb.
(h) Barnes v. Freeland, 6 T. R. 80; Harman v. Fisher, Cowp. 117. All the cases cited in the preceding note were decided on the express ground, that there had been no complete acceptance of the goods by the vendee at the time of the rescission of the contract. (See the distinction, 5 T. R. 405; 6 T. R. 86; 2 East, 124.) Of the case of At kin v. Barwick, Lord Mansfield said, that the judgment was right, but the reasons wrong; for the true ground of the decision was, that the trader very honestly refused to accept the goods, and accordingly returned them, Cowp. 125; 4 Burr. 2239.
(i) Smith v. Field, 5 T. R, 402.
(k) Neate v. Ball, 2 East, 117. It is not a material question in such case, whether the trader's conduct and intentions were right or wrong, but merely whether the act be contrary or not to the policy of the bankrupt-laws; and it is clearly not allowable for the trader to take the goods with the intention of keeping them if he continue solvent, and returning them if he fail. See per Lord Kenyan, C. J., id. 125.