either by deed, or by a parol or verbal assignment; but in order to protect it from the assignees under this section, notice should be given to the debtor (g), though if he have knowledge by any means of the assignment, it will be sufficient to take it from "the order or disposition" of the insolvent. In a recent case the defendant advanced to the insolvent 105l. on a verbal agreement that he should be repaid out of a debt of 4041. which was owing to him from the estate of A., a bankrupt, and the dividends thereon. The solicitor to A.'s commission was privy to the bargain, but it did not appear that he acted for A.'s assignees, or that they knew of the transaction till after the insolvent's imprisonment, within three months of which the latter gave defendant a written order on A.'s assignees to pay the 1057. to the defendant; and afterwards, but before the arrest, he assigned in writing to the defendant the debt and dividends, and on the same day proved for the first time the debt against A.'s estate. The dividends amounted to 80%., which the defendant received from the assignees. In an action subsequently brought by the assignees of the insolvent to recover back this money, it was held, 1. That though the transfer of the debt within three months would have been void, yet that the verbal agreement made before that period, and when the prisoner was solvent, was suffi v. Payne, 5 Bing. 270. See as to property leased, Horn v. Baker, 9 East, 215; Storer v. Hunter, 3 B. & C. 368; Clark v. Crounshaw, 3 B. & Ad. 804; Sinclair v. Stevenson, 2 Bing. 514; Hickenbotham v. Groves, 2 C. & P. 492; Muller v. Moss, 1 M. & S. 335; Bryson v. Wylie, 1 B. & P. 83, note; Lingham v. Biggs, Id. 82. Goods sold but not delivered, Wood v. Wood, 1 C. & P. 59; Carvalho v. Burn, 4 B. & Ad. 382; Miles v. Gorton, 2 C. & M. 504; Clark v. Spence, 4 Ad. & El. 448. Goods remaining in debtor's possession after execution, Lingard v. Messiter, 1 B. & C. 308; Jackson v. Irvin, 2 Campb. 48; Toussaint v. Hartop, Holt, 335; Manton v. Moore, 7 T. R. 67; Burr v. Creethey, 7 Moore, 368; Daker v. Hasler, 2 Bing. 479. (g) Hunt v. Mortimer, 10 B. & C. 47; Dean v. James, 1 N. & M. 393; Ex parte Monro, Buck, 300; Mayer v. Sefton, 2 Stark. 274; Buck v. Lee, 3 N. & M. 580. Distress not to be availa cient to pass the debt; and the assent of A. or his assignees was not necessary to give the defendant an equitable title and 2. That the debt was not in the "order or disposition" of the insolvent, as the knowledge of the solicitor to the commission was tantamount to notice to the assignees (h). But where a policy of assurance was deposited by way of equitable mortgage, it was held, that the onus did not lie on the mortgagee to show that notice of the deposit was given to the office, but on the assignees to show that it was not (i). LVIII. And be it enacted, that no distress ble for more or distresses for rent made and levied after the arrest or other commencement of the imprisonyear's rent. ment of any person whose estate shall, by any than one such order as aforesaid, have been vested in the provisional assignee, upon the goods or effects of any such person, shall be available for more than one year's rent accrued prior to the making of such order, but that the landlord or party to whom the rent shall be due shall and may be a creditor for the overplus of the rent due, and for which the distress shall not be available, and see further as to (h) Tibbitts v. George, 5 Ad. & El. 107. (i) Ex parte Stevens, 4 Dea. & Chit. 117; notice, Ex parte Stright, 2 Dea. & Chit. 314; Smith v. Smith, 2 C. & M. 231, 4 Tyr. 52; Ex parte Newton, 4 Dea. & Chit. 138; Ex parte Carbis, 4 Dea. & Chit. 354; Ex parte Watkins, 1 Mont. & Ay. 689; Ex parte Masterman, 2 Mont. & Ay. 209; Ex parte Waithman, 2 Mont. & Ay. 364, 4 Dea. & Chit. 412; Ex parte Buckridge, 1 Dea. 131; Ex parte Douglas, 3 Dea. & Chit. 310; Gardner v. Lacklan, 6 Sim. 417; Ex parte Bignold, 3 Mont. & Ay. 13. Transfer of dock warrants, &c., Ridout v. Lloyd, 1 Mont. 103; Ex parte Davenport, 1 Dea. & Chit. 397; 1 Mont. & B. 165; Greening v. Clark, 4 B. & C. 316; Lucas v. Dorrien, 7 Taunt. 278; Winks v. Hassall, 9 B. & C. 372 ; Tucker v. Ruston, 2 C. & P. 86; Townley v. Crump, 4 Ad. & El. 58; Ex parte Richardson, Buck, 480. entitled to all the provisions made for creditors by this Act. The distress must be made as well as levied, afterwards, to come within this enactment; therefore if a landlord distrains before the arrest or imprisonment, he will be entitled to the whole rent due, though the goods are not sold till after the petition (k). preference LIX. And be it enacted, that if any such pri- Voluntary soner shall, before or after his or her imprison- fraudulent ment, being in insolvent circumstances, volun- and void as tarily convey, assign, transfer, charge, deliver, against asor make over any estate, real or personal, secu- signees. rity for money, bond, bill, note, money, property, goods, or effects whatsoever, to any creditor or creditors, or to any person or persons in trust for, or to or for the use, benefit, or advantage of any creditor or creditors, every such conveyance, assignment, transfer, charge, delivery, and making over shall be deemed and is hereby declared to be fraudulent and void as against the provisional or other assignee or assignees of such prisoner appointed under this Act: provided always, that no such conveyance, assignment, transfer, charge, delivery, or making over shall be so deemed fraudulent and void, unless made within three months before the commencement of such imprisonment, or with the view or intention, by the party so conveying, assigning, transferring, charging, delivering, or making over, of petitioning the said Court for his discharge from custody under this Act. The word " voluntarily" is held to denote an assignment made without such valuable consideration as is sufficient to induce a party acting really (k) Wray v. Earl Egremont, 1 N. & M. 188. and bona fide under the influence of such consideration, or an assignment made in favour of a particular creditor spontaneously, and without any pressure on his part to obtain it. Therefore, where A. and B. being creditors to a considerable amount, A. advanced the insolvent the further sum of 70l. to induce him to assign over his property to them as a security, as well for that as also for their debts; it was held, no fraud being suggested, that this assignment was not voluntary within the meaning of the Act (1). Nor is a transfer made upon a wellgrounded apprehension of arrest (m). But a warrant of attorney given without pressure for a bona fide debt, and authorizing immediate execution, is void (n), as well as a voluntary payment to a creditor (o). And where a person took from an insolvent a pawnbroker's duplicate for a harp, which he took out of pawn, it was held that he had no lien thereon against the assignee (p). But the Court of Queen's Bench has expressed a strong opinion that there must be some act of the party to bring the case within this section, and that merely suffering a judgment by default for a bona fide debt, though intended to give a preference to the particular creditor, will not make it void (q). And it lies upon the assignees, who seek to avoid the "charge," to prove that it was voluntary (r). Unless made within three months before, &c.]-This expression would seem to exclude a conveyance made during the imprisonment; but the meaning is, that all conveyances &c. made within a period commencing at three months before the imprisonment shall be void, and that if made before that (1) Arnell v. Bean, 1 M. & Sc. 151; 8 Bing. 87. (0) Herbert v. Wilcox, 6 Bing. 203. (p) Ayling v. Williams, 5 C. & P. 399. (q) Thorpe v. Eyre, 3 N. & M. 214; 1 Ad. & Ell. 926. Doe v. Gillett, 1 Tyr. & G. 114. period, they shall also be void if the party was then insolvent, and made it with a view to petitioning the Court for his discharge (s). What shall be deemed the commencement of the imprisonment, see note to sect. 61, infra. of 3 G. 4, solvents. LX. And whereas an act passed in the third Provisions year of the reign of His late Majesty King c. 39, exGeorge the Fourth, intituled An Act for pre- tended to venting Frauds upon Creditors by secret War- the assigrants of Attorney to confess Judgment: And nees of inwhereas it is expedient to extend the provisions of such act; be it therefore enacted, that the last-mentioned act shall extend to the provisional or other assignee or assignees of every prisoner whose estate shall after the expiration of twenty-one days next after his execution of such warrant of attorney, or giving of such cognovit actionem as therein mentioned, be vested in the provisional assignee of the said Court for the Relief of Insolvent Debtors by virtue of this Act, as if the last-mentioned act had been expressly herein enacted; and every such warrant of attorney, and judgment and execution thereon, and every such cognovit actionem, and judgment entered up thereon, and execution taken out on such judgment, as are declared by the last-mentioned act to be fraudulent and void against the assignees mentioned therein, shall be deemed equally fraudulent and void against the provisional or other assignee or assignees of such prisoner, appointed under this Act, and such provisional or other assignee or assignees shall be entitled to recover back and receive, for the use of the creditors of such prisoner, all (s) Becke v. Smith, 2 M. & W. 191; Wainwright v. Miles, 3 M. & Sc. 215. G |