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other (9); as where plaintiff purchased a public
house, but did not reside in it (because having
another he could not procure a licence), and put
an insolvent into possession, it was held, that the
plaintiff might maintain an action against the
sheriff, for seizing in execution his chattels and
liquor in the house under an execution against
the insolvent(r).

On the same principle, where a party mortgaged
land, and in the same deed sold a windmill which
was on the land, it was held good, and that the
windmill could not be taken in execution under a
fi. fa. against the vendor, though he had been
allowed to remain in possession ; because the pos-
session was accounted for(s). But if it had been
a chattel capable of easy removal, it would have
been otherwise, although the instrument transfer-
ring the goods contained a valid mortgage of lease-
hold buildings, in which the chattels are situ-
ated (t).

So, where the conveyance depends on a con

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Conditional conveyance.

(1) Leonard v. Baker, 1 M. & S. 251. Especially if rent be received, Watkins v. Birch, 4 Taunt. 823.

(-) Duuson v. Wood, 3 Taunt. 256, (Mansfield, C. J. dissentiente).

(s) Steward v. Lombe, 1 B. & B. 506; (the jury had found that the windmill was not a fixture.)

(1) Reed v. Blades, 5 Taunt. 212. A symbolical delivery will ·be sufficient where the nature of the goods does not admit of better, Manton v. Moore, 7 T. R. 67; (on the old Bankruptcy Act, 21 Jac. I. c. 19).-Post.

lent,

dition precedent, the vendor's continuing possession does not avoid it, because, by the terms of the conveyance, the vendee is not to have the

possession until he has performed the condition, and it is sufficient if possession follow the deed, though it be not immediate (u).

It has been stated, that the motives and intention Wliere the of the parties must always be taken into considera- not fraudu tion(x); therefore, where the obvious intention of the party transferring is not fraudulent, continuance of possession by him will not vitiate the sale. An assignmenť of all his effects by defendant to trustees, for the benefit of his creditors, was held not to be fraudulent, though made pending a suit, and for the purpose of delaying the plaintiff of his execution : because the motive was honest; the defendant felt that he had not sufficient to satisfy all his debts, and wished to make an equal distribution(y). A debtor, as well as an executor, may

(u) 2 T. R. 596. See Cadogan (Lord) v. Kennett, Cowp. 432; Haslington v. Gill, 3 T. R. 620, n.; Stone v. Grubham, 2 Bulstr. 225; Bucknal v. Roiston, Prec. Chan. 287. [So, it was decided, on the Bankruptcy Act, that the property in the goods did not pass to the assignees, though the bankrupt remained in possession for several months after the sale ; the vendee having resumed possession a few days before the bankruptcy, Jones v. Dwyer, 15 East, 21.]

(r) Supra, p. 99.

(y) Pickstock v. Lyster, 3 M. & S. 371. And see Meux v. Howell, 4 East, 1 ; Bowen v. Bramidge, 6 C. & P. 140; Estwick v. Caillaud, 5 T. R. 420.

Notoriety of transaction.

give preference to a particular creditor(2), by assignment or otherwise ; provided he does so in payment of just demands, and not as a mere cloak for securing the property to himself(a). It is always an important consideration, whether the transaction have been secret or open. If it is a fact well known, that the party retaining possession is not the real owner, such possession cannot mislead, and the mischief will not arise. The notoriety, therefore, of the transaction is always strongly insisted upon, to rebut the presumption of fraud (6); as, in the cases cited, where the circumstance of the execution was well known (c). So,

, where the sale was notorious and public, being made by the sheriff(d); or, by the landlord under a distress for rent (e); or, by public auction (f). On the same principle, a bill of sale is good against a creditor, with whose knowledge and assent it has

(2) 2 Stark. Ev. p. 361; Holbird v. Anderson, 5 T. R. 235; Tulputt v. Wells, 1 M. & S. 395; Estwick v. Caillaud, 5 T. R. 424.

(a) Goss v. Neale, 5 B. Moore, 19, 21.

(6) Whether the sale was notorious and bona fide, or fraudulent, is frequently a question for the jury, Armstrong v. Baldock, Gow, 33; Martin v. Podger, 2 Bl. Rep. 702. A secret transfer was a strong badge of fraud at common law, see Mace v. Cammell, Lofft, 783.

(c) Latimer v. Batson, 4 B. & C. 652; Jezeph v. Ingram, 8 Taunt. 838; S. C. 1 B. Moore, 189. Supra, p. 100.

(d) Kidd v. Rawlinson, 2 B. & P. 59.
(e Guthrie v. Wood, 1 Stark. N. P. C. 367.
(9) Woodham v. Baldock, 3 B. Moore, 11 ; S. C. Gow, 35, n.

been given, though possession may not have gone under it (g).

It is said in Buller's Nisi Prius (h), that no con- Fraud veyance is fraudulent within the statute, unless it future can be proved that the person was indebted at the time, or very near; though there have been determinations to the contrary (i). And it seems, that if a conveyance could be proved to have been made with a view to defraud a future creditor, it would be void under the statute (k).

creditor.

PART VI.

OF SALES AFFECTED BY THE STATUTE OF BANKRUPTCY. The effect of bankruptcy, upon sales of chattels, Effect of

bankruptcy may be considered under the following heads :

on sales. First, Where the bankrupt is in the situation of vendor. If the transfer took place before his bankruptcy, the transaction will not in general be affected by such subsequent event, unless the vendor had his bankruptcy in contemplation at the time,

(g) Steel v. Brown, 1 Taunt. 381; see Leonard v. Baker, 1 M. & S. 251.

(h) Page 257 a, (7th ed.) Cases there cited, Walter v. Burrows, Chan. 1745; Taylor v. Jones, 2 Atk. 600. And see Lush v. Wilkinson, 5 Ves. Jun. 384; per Lord Tenterden, C. J., & B. & Ad. 369.

(i) By Sir J. Jekyll and Furtescue, M. R., Bull. N. P. 257 a.

(k) 2 Stark. Ev. p. 361; see Evans's Statutes, Vol. I. p. 365, notes (3rd ed.).

and intended to give the vendee (being a creditor) a fraudulent preference. If the transfer took place after an act of bankruptcy, though in strictness the bankrupt has no longer any power of disposition over his goods, the statute provides that bona fide transactions shall be protected (unless a commission shall be sued out within two months), in order that the fair dealer may not be prejudiced by secret acts, of which he can have no notice.

Secondly, Where the bankrupt is in the situation of vendee, the statute extends a similar protection to bona fide dealings; and the payment of money, or delivery of goods, which belong to the bankrupt, would be good at any time before the issuing of the commission.

Thirdly, Where the bankrupt is in the situation either of vendor or vendee, an important class of cases relates to that enactment of the statute, which provides, that he shall be deemed to be the owner of property continuing in his possession, order, or disposition, at the time of his bankruptcy, and that such property shall pass to the assignees. This provision is, perhaps, not so much for the purpose of guarding against fraud, as for the purpose of preventing credit being given to false appearances, and of marking with certainty the ownership of goods, by making the property in general accompany the possession (a). The question, therefore,

(a) See 9 East, 238, 242.

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