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did not apply (f). The contract must be proved to have been completed on Sunday; therefore, where there was no written memorandum of the contract at the time, and the horse sold was not delivered till the following Tuesday, the contract was held not to be complete until the latter day, and therefore not avoided by the statute (g). It seems the vendee may maintain an action on the contract, if he was ignorant of the fact, that the vendor was exercising his ordinary calling in selling the chattel (h). Where the contract was commenced on Saturday, but completed on Sunday, and the defendant was proved to have subsequently promised to pay, the Court held, that it might be considered a ratification of the agreement of Saturday, and that the action might be sustained (i).
(f) Drury v. Defontaine, 1 Taunt. 131; see Peate v. Dicken, 1 Cr. M. & R. 426. It seems that at common law any act on a Sunday, not prohibited by statute, would be legal ; see Cro. Jac. 279, 406 ; 1 Stra. 472; 1 Taunt. 136; and see Rex v. Younger, 5 T. R. 449; Rex v. Whitnash, 7 B. & C. 596 ; Begbie v. . Levi, 1 Cr. & J. 180;
Breach, 7 B. & C. 96. (g) Bloxsome v. Williams, 3 B. & C. 232; see Williams v. Paul, 6 Bingh. 655.
(1) Bloxsome v.Williams, 3 B. & C. 232.
(i) Williams v. Paul, 6 Bingh. 653. Bayley, J. ruled at the trial that the defendant, having kept the chattel, was liable on the quantum meruit, though not for the price agreed on by the bargain of Sunday.
OF SALES FRAUDULENT AGAINST CREDITORS.
The statute of fraudulent alienations (a), reciting that gifts, conveyances, &c., had been contrived to delay, hinder, or defraud creditors of their lawful demands, enacts that all feoffments, gifts, grants, alienations, bargains, and conveyances of lands, goods, and chattels, made for such fraudulent purposes, shall be utterly void and of none effect, as against those persons whose actions, suits, debts, &c., might be in any wise disturbed, hindered, delayed, or defrauded. A subsequent section provides, that the act shall not extend to conveyances made, upon good consideration, to parties having no notice of such covin, fraud, or collusion (6).
Fraud against cre. ditors.
The object of the statute was to protect creditors (c), against the clandestine and fraudulent
(a) 13 Eliz, c. 5.
(c) A conveyance by bill of sale, though it may be void against
assignments of property by debtors; and the question as to whether a transfer by the debtor be valid or void, must always be decided by reference to the motives and intention of the party making the transfer (d). Fraud, in such cases, may be either an inference of law from the circumstances, or it may be a conclusion of fact for the jury (e). " Where the fraud can be collected from the instrument itself, or from the instrument coupled with extrinsic circumstances, without any finding by the jury as to the intention of the party transferring, it is a question of law arising upon the facts; but when it depends on the real intention of the parties, that intention is a question of fact for the jury (f)."
Continuance of possession by the vendor, after Continu. the sale, is always a suspicious circumstance ; session a since, in general, a change of possession accom- fraud. panies a change of property, and by deviating from this ordinary course of dealing, third parties are deceived, and induced to give credit to the apparent owner(s). It seems to have been formerly
ance of pose
bad ye ut
(d) “ The question in every case is whether the act done is a bona fide transaction, or whether it is a trick and contrivance to defeat creditors.” Per Lord Mansfield, C. J. Cowp. 435.
(e) “Fraud is sometimes a question of law, sometimes a question of fact, and sometimes a mixed question of law and fact.” Per Buller, J. 5 T. R. 426.
(f) 2 Stark. Ev. p. 358 (2nd Edit.)
(g) Twyne's case, 3 Rep. 80 a.; Chamberlayne v. Twyne, Moore, 638 ; Shep. Touchst. 66.
But not conclusive.
held, that where a debtor executed a bill of sale of his property to his creditor, and was still permitted to remain in possession, it was such a badge of fraud as, ipso facto, to avoid the sale absolutely (h). This doctrine is now somewhat qualified (i), and although continuance of possession is a strong presumption of fraud, it may be rebutted by extrinsic evidence.
Thus, where J. S. sued out a writ of execution against the duke of M., and having bought the goods, under the execution, from the sheriff, sold them by bill of sale to the plaintiff, and the property was left on the premises, and used by the duke as before the sale, but the circumstance of the execution was notorious in the neighbourhood, -in an action brought against another judgment creditor for removing the goods, it was held to be properly left to the jury, whether the sale was bonâ fide, or otherwise : the plaintiff had a verdict(k). In this case a servant had been left by the plaintiff in joint possession of the goods, but the decision
(h) Edwards v. Harben, 2 T. R. 587; Bamford v. Baron, 2 T. R. 594, n. Buller, J., said, that the judges had been unanimously of opinion that, unless possession accompanies and follows the deed, it is fraudulent and void. Ib. p. 595. And see 5 Taunt. 217.
(i) See 1 B. & B. 512; 4 B. & C. 654 ; 3 B. & Ad. 505; Eastwood v. Brown, 1 Ry. & Moo. 312, cor. Abbott, C. J.
(k) Latimer v. Batson, 4 B. & C. 652. And see Jezeph v. Ingram, 1 B. Moore, 189; S.C. 8 Taunt. 838, where Gibbs, C. J., put it upon the ground of the notoriety of the execution.
did not depend on that circumstance; for it has been held, that joint possession is not a whit better than no possession at all(?). To evidence a substantial change of possession, it must be exclusive; even where possession is actually changed, if the former owner is allowed to interfere, and act as with his own property, there is evidence of fraud (m).
Where the continued possession of the vendor Possession is consistent with the terms of the conveyance, with the such possession will not in general be deemed conveyance. fraudulent(n); as where, by a bona fide settlement upon marriage, goods are settled on the wife, and the husband retains possession in pursuance of the terms of such settlement(o). So, where one lends another money to buy goods, and takes a bill of sale of the goods to secure repayment, but suffers the vendor to remain in possession, there is no fraud to vitiate the transaction (p). So, where the party buys goods himself, and lends them to an
(1) Wordall v. Smith, 1 Campb. 332, cor. Lord Ellenborough, C. J. See Hunt v. Stephens, 3 Taunt. 113.
(m) Paget v. Perchard, 1 Esp. 205, cor. Lord Kenyon, C. J.
(n) Reed v. Wilmott, 5 M. & Payne, 553; see Dewey v. Bayntun, 6 East, 257.
(0) Lord Cadogan v. Kennett, Cowp. 432; Cross v. Glode, 2 Esp. 574.
(p) Meggott v. Mills, 1 Ld. Raym. 286; Martindale v. Booth, 3 B. & Adol. 498 ; Kidd v. Rawlinson, 2 B. & P. 59; Benton v. Thornhill, 7 Taunt. 149; Bull. N. P. 258.