if a bill of exchange be indorsed in payment of goods sold, it will be a payment within the statute, though the bill be not paid till after the issuing of the commission, provided it be paid when due.(g)

The distinction between a payment in money and a payment or satisfaction by bills is, however, at this day of less moment, since now not only payments, but all contracts, dealings and transactions with a bankrupt, without notice of an act of bankruptcy available for adjudication, are protected.(r)

Where a negotiable instrument is given to the bankrupt after his bankruptcy, the bankrupt has the property in it, unless the trustees choose to interfere.(8)

If a man already bankrupt be payee of a negotiable bill or note, the acceptor or maker cannot dispute the payee's capacity to indorse.(t)

*The former certificate or present order of discharge of the bankrupt discharges him from all debts due when he [*468] became bankrupt, and from all claims and demands provable under the bankruptcy.(u) And an agreement to pay a debt from which the bankrupt has been so discharged was formerly void, unless in writing and signed.(v) But an absolute written and signed promise personally to pay, bound, whether given before or after certificate.(x) But a subsequent contract to pay was afterwards, by the 24 & 25 Vict. c. 134, s. 164, avoided. (y) That act, however, is now repealed in toto by 32 & 33 Vict. c. 83.

(q) Wilkins v. Casey, 7 T. R. 711; Bayly v. Schofield, 1 M. & Sel. 338; see Bishop v. Crawshay, 3 B. & C. 415 (10 E.C. L. R.); 5 Dowl. & R. 279.

(r) 12 & 13 Vict. c. 106, s. 133. This act is now repealed, but the new statute 32 & 33 Vict. c. 71, s. 94, contains the provision in the text.

(s) Drayton v. Dale, 2 B. & C. 293 (9 E. C. L. R.); 3 Dowl. & R. 534; In re Pettit, L. R., 1 Chan. D. 478.

(t) Dayton v. Dale, 2 B. & C. 293 (9 E. C. L. R.); Pitt v. Chappelow, 8 M. & W. 616; Braithwaite v. Gardiner, 8 Q. B. 473 (55 E. C. L. R.). See the chapter on ACCEPTANCE.

(u) 12 & 13 Vict. c. 106, s. 200, repealed and re-enacted by 32 & 33 Vict. c. 71, s. 49.

(v) 6 Geo. 4, c. 16, s. 131.

(x) Kirkpatrick v. Tattersall, 13 M. & W. 766; Lobb v. Stanley, 5 Q. B. 574 (48 E. C. L. R.).

(y) 24 & 25 Vict. c. 134, s. 164.

Until the 6 Geo. 4, c. 16, s. 3, fraudulent preference (except by deed) was not prohibited by any statute, but was void as a fraud on the bankrupt laws.(z) If by deed, it was an act of bankruptcy.(a)

Afterwards by the 6 Geo. 4, c. 16, s. 3, repealed and re-enacted by the 12 & 13 Vict. c. 106, s. 67, every fraudulent conveyance or transfer, whether of real property or chattels (though not by deed), was erected into an act of bankruptcy. And a bill of exchange has been decided to be a chattel within this, as well as within other sections of the former bankrupt acts.(b) The recent act 32 & 33 Vict. c. 71, ss. 1 and 6, erects any fraudulent conveyance of property of any kind into an act of bankruptcy.

To have been invalid as a fraudulent preference, a transfer or payment must have been spontaneous, and not at the instance or importunity of the creditor; (c) it must have been with the intention of giving the creditor an unfair advantage, and not in the usual course of business;(d) it must have been in contemplation of bankruptcy as a probable event.(e)

[*469]

The money was not, perhaps, a chattel within the former statutes, and therefore the payment of money, by way of fraudulent preference, to a creditor may have been only a void payment.(f)

(z) Martin v. Pewtress, 4 Burr. 2477.

(a) 1 Jac. 1, c. 15, s. 2; Bevan v. Nunn, 9 Bing. 107 (23 E. C. L. R.); 2 Moo. & Se. 132.

(b) Cumming v. Baily, 6 Bing. 363 (19 E. C. L. R.); 4 Moore & P. 36, s. c. Query, as to a country bank note: Carr v. Burdiss, 1 C., M. & R. 782; 5 Tyrw. 309, s. c. See post.

(c) Mogg v. Baker, 4 M. & W. 348; Brown v. Kempton, 19 L. J., C. P. 169; Strachan v. Barton, 25 L. J., Exch. 182.

(d) Rust v. Cooper, Cowp. 629.

(e) Poland v. Glynn, 4 Bing. 22 n. (13 E. C. L. R.); 12 Moo. 109, n., s. c. In Morgan v. Brundrett, 5 B. & Ad. 289; 2 Nev. & M. 280, s. c., Mr. Justice Parke said that the cases on this subject had gone too far, and that actual bankruptcy and not mere insolvency must have been contemplated to make the preference fraudulent. And see Atkinson v. Brindall, 2 Bing. N. C. 225 (29 E. C. L. R.); 2 Scott 369, s. c. But see Aldred v. Constable, 4 Q. B. 674 (45 E. C. L. R.).

(ƒ) Bevan v. Nunn, 9 Bing. 107 (23 E. C. L. R.); 2 Moore & S. 132, s. c. ; Abell v. Daniell, M. & M. 370; but see Ex parte Simpson, 1 De Gex 9; also Canaan v. Wood, 2 M. & W. 467. If A. and B. are both creditors for the same debt, a payment to A., with the intention of serving B., is not a fraudulent preference of A.: Abbott v. Pomfret, 1 Bing. N. C. 462 (27 E. C. L. R.) ;

A voluntary transfer, without consideration, by a bankrupt being at the time insolvent, of land, chattels, bills, bonds, or notes or debts, was avoided by the 12 & 13 Vict. c. 106, s. 126 (now repealed). A gift of money was not, it seems, within this section ;(g) but if the money were given with a fraudulent intent, the payment was void and the money recoverable.

And now by the existing act, 32 & 33 Vict. c. 71, s. 92, every transfer of property, or charge thereon, every payment made, every obligation incurred, and every judicial proceeding taken or suffered by a person unable to pay his debts as they become due, out of his own moneys, in favor of any creditor with a view of giving preference, is, if the party so dealing become a bankrupt within three months afterwards, void as against his trustee in bankruptcy.(h)

1 Scott 470; 1 Hodges 24, s. c.; see Reg. v. Radley, 18 L. J., M. C. 184; Petty v. Cooke, L. R., 6 Q. B. 790; 40 L. J. 281.

(g) Kensington v. Chantler, 2 M. & S. 36; Ex parte Shortland, 7 Ves. 88; Ex parte Sharratt, 2 Rose 384; Abell v. Daniell, M. & M. 370.

(h) See Marks v. Feldsman, L. R., 6 Q. B. 275.

APPENDIX I.

NOTARIES' FEES OF OFFICE.

As settled July 1, 1797.

At a meeting of several notaries of the city of London, held at the Georg and Vulture Tavern, in London aforesaid, on the 1st of July, A.D. 1797, the following resolutions were unanimously agreed to, and since approved and confirmed by the Governor and Company of the Bank of England:

First. That, from and after the fifth day of the present month of July, the noting of all bills drawn upon or addressed at the house of any person or persons residing within the ancient walls of the said city of London shall be charged one shilling and sixpence; and without the said walls, and not exceeding the limits hereunder specified, the sum of two shillings and sixpence.

Second. For all bills drawn upon or addressed at the house of any person or persons residing beyond Old or New Bond Street, Wimpole Street, New Cavendish Street, Upper Marylebone Street, Howland Street, Lower Gower Street, lower end of Gray's Inn Lane (and not off the pavement), Clerkenwell Church, Old Street, Shoreditch Church, Brick Lane, St. George's in the East, Execution Dock, Wapping, Dockhead, upper end of Bermondsey Street (as far as the church), end of Blackman Street, end of Great Surrey Street, Blackfriars Road (as far as the Circus), Cuper's Bridge, Bridge Street, Westminster, Arlington Street, Piccadilly, and the like distances, three shillings and sixpence; and, off the pavement, one shilling and sixpence per mile additional.

Third. For protesting a bill drawn upon or addressed at the house of any person or persons residing within the ancient walls of the said city (including the stamp duty of four shillings, and exclusive of the charge of noting), the sum of six shillings and sixpence; and without the ancient walls of the said city, including the like stamp duty, and exclusive of the said charge of noting, the sum of eight shillings, agreeably to the second

article.

Fourth. That all acts of honor, within the ancient walls of the city of London, shall be charged the said sum of one shilling and sixpence upon each bill; and for all acts of honor without the ancient walls of the said