England, 4 A. & E. 21. Under sect. 82, payments really and bonâ fide made are valid, even in cases where the contract or transaction, upon which they are made, has taken place within two calendar months before the commission. See Coles v. Robins, 3 Campb. 183. Cash v. Young, 2 B. & C. 413. The same point was decided in Hill v. Farnell, 9 B. & C. 45, where a library of books had been purchased of a hop-merchant and paid for, without notice that the hop-merchant had at that time committed an act of bankruptcy, on which a commission was afterwards, and after the sale of the books, taken out (u). So giving cash for a bank (x) post bill. A payment in goods is a payment within the meaning of this section. Hence where the bankrupt, after repeated applications for payment of a previous debt, but after a secret act of bankruptcy, delivered goods bona fide in part payment; it was holden to be protected. Cannan v. Wood, 2 M. & W. 465. "A bonâ fide payment imports something different from and additional to an actual payment; the words bona fide were inserted by the legislature to raise the question, whether the money had been paid honestly and fairly in the course of an honest transaction." Per Tindal, C. J., Devas v. Venables, 3 Bingh. N. C. 403. Where B., having committed a secret act of bankruptcy, assigned chattels to the defendant, as a security for money lent to B. by the defendant, in trust to permit B. to use them till March, 1833, and then, if the debt were unpaid, to sell them in discharge thereof. In October, 1832, and within two months of this assignment, a fiat issued against B.; it was holden, that this could not be considered as a payment protected by the 82nd section: the word payment applied to a payment of a debt, and not to a loan of money upon the security of a transfer of goods. Cannan v.

Denew, 10 Bingh. 292. So where a bankrupt having, within two months before the fiat, deposited chattels by way of pledge, in consideration of an advance of money; it was holden, that the transaction, though bonâ fide and without notice of an act of bankruptcy, was not protected (y).

By stat. 6 Geo. IV. c. 16, sect. 84, no person or body corporate, or public company, having in their possession or custody any money, goods, wares, merchandizes, or effects, belonging to any bankrupt, shall be endangered by reason of the payment or delivery thereof to the bankrupt or his order; provided such person or company had not, at the time of such delivery or payment, notice that such bankrupt had committed an act of bankruptcy. And by sect. 85, if any accredited agent of any body corporate or public company shall have had notice of any act of bankruptcy, such body corporate shall be hereby deemed to have had such notice.

(u) And see Bishop v. Crawshay, 3 B. & C. 415; Ward v. Clarke, 1 M. & Malk. 499; and Cook v. Caldecott, ibid. 522; ante, 205, n.

(x) Willis v. The Bank of England, 4 A. & E. 21, n.

(y) Wright v. Fearnley, 5 Bingh. N. C. 89; affirmed in Ex. Ch. 6 Bingh. N. C. 446.

By sect. 86 (re-enacted by stat. 2 & 3 Vict. c. 11, s. 13, ante, p. 249) no purchase from any bankrupt bona fide, and for valuable consideration, where the purchaser had notice at the time of an act of bankruptcy by such bankrupt committed, shall be impeached by reason thereof, unless the commission against such bankrupt shall have been sued out, within twelve calendar months after such act of bankruptcy.

By sect. 87, no title to any real or personal estate sold under any commmission, or under any order in bankruptcy, shall be impeached by the bankrupt, or any person claiming under him, in respect of any defect in the suing out of the commission, or in any of the proceedings under the same, unless the bankrupt shall have commenced proceedings to supersede the said commission, and duly prosecuted the same within twelve calendar months from the issuing thereof (z). The words "claiming under" the bankrupt, do not include the assignees under a subsequent commission (a)."

This

By sect. 108, no creditor having security for his debt, or having made any attachment in London, or any other place, by virtue of any custom there used, of the goods of the bankrupt, shall receive upon such security or attachment more than a rateable part of such debt; except in respect of any execution or extent served and levied, by seizure upon, or any mortgage or lien upon, any part of the property of such bankrupt before the bankruptcy; provided that no creditor though for a valuable consideration, who shall sue out execution upon any judgment obtained by default, confession, or nil dicit, shall avail himself of such execution to the prejudice of other fair creditors, but shall be paid rateable with such creditors. proviso limits the exception, and the exception applies only to cases falling within the first part of the section, viz. those of creditors having security. Per Lord Tenterden, C. J., 6 B. & C. 484, Wymer v. Kemble. In this case the goods of the debtor had been seized under a fi. fa. sued out upon a judgment of non sum informatus, and delivered to the creditor under a bill of sale by the sheriff; then a bankruptcy followed; and it was holden, that he had ceased to be a creditor, having been paid by means of the execution before the bankruptcy. So, where after seizure and before bankruptcy, the debtor pays the money to the sheriff's officer, the debt is thereby extinguished, and although the money is in the hands of the sheriff at the time of the bankruptcy, and paid over to the execution creditor afterwards, the assignees cannot recover. Morland v. Pellatt, 8 B. & C. 722. But where the sheriff had made a seizure before act of bankruptcy, but the goods remained in his hands unsold at the time of the bankruptcy, it was holden, that the sheriff was not justified in paying over to the creditor money received by him as the proceeds of the sale, after the bank

(2) See Earl Granville v. Danvers, 7 (a) Gould v. Shoyer, 6 Bingh. 738. Sim. 121.

ruptcy. Notley v. Buck, 8 B. & C. 160. See further on this subject, in re Washbourn, 8 B. & C. 444.

An execution founded on a warrant of attorney or cognovit is still within the operation of this 108th section, and not protected against the effect of an act of bankruptcy or a fiat before the sale, though the seizure had taken place before the act of bankruptcy (b). When an execution by fieri facias on a judgment on a warrant of attorney (not given by way of fraudulent preference) was executed by seizure, after a secret act of bankruptcy, but not completed by sale of the goods seized before the issuing of the fiat, which was subsequent to the passing of the 2 & 3 Vict. c. 29; it was holden, that the execution creditor was not entitled to the benefit of it as against the assignees of the bankrupt; the stat. 2 & 3 Vict. c. 29, not having had the effect of rendering valid such executions so as to entitle the execution creditor to the benefit of them against the assignees, nor repealed the 108th section of the statute 6 Geo. IV. c. 16 (c); the right of the assignees to the goods seized, or the proceeds, may be enforced by an action of trover against the sheriffs who sold after the fiat (d).

These decisions must, it is conceived, lead to an early interference on the part of the legislature; for to avoid the risk of having executions defeated, it has now become the practice of sheriffs to sell the property seized immediately after an execution is levied, and thus in most cases a very great sacrifice is the consequence (e). But where a creditor on a judgment founded upon a warrant of attorney, issued execution thereon, and seized and sold the goods of the debtor under a fi. fa. without notice of any act of bankruptcy committed by the debtor, and on the day after the sale, a fiat in bankruptcy issued against the debtor; it was holden, that the assignees were not entitled to recover from the creditor the proceeds of the sale, inasmuch as, at the time of the fiat, he was not a creditor of the bankrupt within this section (ƒ).

The stat. 1 Will. IV. c. 7, s. 7, reciting so much of the 108th section. of the statute of 6 Geo. IV. (ante, p. 253) as is there printed in italics, and also, that by reason of such provision, plaintiffs had been and might be deterred from accepting a cognovit actionem, with stay of execution, whereby the expense of further proceedings in such action might have been and may be saved or diminished, for remedy thereof enacts, "that no judgment signed or execution issued after the passing of that act [11th March, 1831,] on a cognovit actionem after declaration filed, or delivered, or judgment by default, confes

(b) Per Parke, B., in Cheston v. Gibbs, 12 M. & W. 126; citing Whitmore v. Robertson, 8 M. & W. 463; and Skey v. Carter, 11 M. & W. 571.

(c) Whitmore v. Robertson, 8 M. & W. 463; Rawdon v. Wentworth, 10 M. & W. 36; Skey v. Carter, 11 M. & W. 571;

5 Scott's N. R. 877.

(d) Cheston v. Gibbs, 12 M. & W. 111, recognizing Rawdon v. Wentworth, supra. (e) See preface to Montagu and Ayrton's Law of Bankruptcy, second edition. (f) Ramsey v. Eaton, 10 M. & W. 22.

sion, or nil dicit, according to the practice of the court in any action commenced adversely, and not by collusion for the purpose of fraudulent preference, shall be deemed within the foregoing provision." An execution sued out upon a final judgment, after judgment by nil dicit, falls (g) within this proviso, which comprises all judgments by default, and cannot be restrained to judgments by default by the consent or the collusion of the parties; and the words "obtained by default, confession, or nil dicit," apply to a judgment obtained before, as well as after, the passing of the act. The statute 1 Will IV. c. 7, s. 7, does not extend to a judgment on a warrant of attorney, though given without collusion or intention of fraudulent preference (h).

A plaintiff in execution upon a judgment by confession ceases to be a creditor, having security for his debt within the 108th section of statute 6 Geo. IV. c. 16, when the goods seized under that execution are sold, even though an act of bankruptcy be committed before the return of the writ (i).

VIII. Of Actions which may be brought by the Assignees of a Bankrupt, p. 255, and in what Manner they ought to sue, p. 260, Actions against Assignees, p. 262.

By stat 5 & 6 Vict. c. 122, s. 26, if the assignees commence any action or suit for any money due to the bankrupt's estate, before the time allowed by this act for the bankrupt to dispute the fiat shall have elapsed, (see sect. 24) any defendant in any such action or suit shall be entitled, after notice given to the assignees, to pay the same, or any part thereof, into the court in which such action or suit is brought; and all proceedings with respect to the money so paid into court shall thereupon be stayed until the time aforesaid shall have elapsed and if within that time the bankrupt shall not have commenced such action, suit, or other proceeding as aforesaid, and prosecuted the same with due diligence, the money shall be paid out of court to the assignees, but otherwise shall abide the event of such action, suit or other proceeding as aforesaid, and upon such event shall be paid out of court either to the assignees or the person adjudged bankrupt, as the court shall direct; and after such payment made so into court, it shall not be lawful for the person so adjudged bankrupt to proceed against the defendant for recovery the same money.

of

See stat. 7 & 8 Vict. c. 111, ss. 8, 9, ante, p. 224, 5, respecting actions by assignees of a company made hankrupt under the provisions of that act.

(g) Cuming v. Welsford, 4 M. & P. 238; 6 Bingh. 502.

(h) Crosfield v. Stanley, 4 B. & Ad. 87;

1 Nev. & M. 668.

(i) Higgins v. M'Adam, 3 Y. & J. 1, recognizing Wymer v. Kemble.

The assignees of a bankrupt can recover such things only as the bankrupt had both a legal and equitable (j) right in. See ante, p. 240.

1. Money had and received.-An action for money had and received will lie against a creditor of the bankrupt (k), who, after the act of bankruptcy, takes out execution against the goods of the bankrupt, and receives from the sheriff the money arising from the sale of the goods; for the law supposes the creditor to have received the same for the use of the assignees in whom the property of the goods is vested, and thence implies a promise to pay. So where a trader became a bankrupt by lying in prison two months (now 21 days) after an arrest (1); it was holden, that his assignees might maintain an action for money had and received against a person who, after the arrest, and before the expiration of the two months, having had notice that a commission would be sued out against the trader, sold his goods and paid him the produce. In cases of this kind, the assignees have an election to bring either trover or assumpsit. In trover they may recover the full value of the goods at the time they were taken, though the sale may not actually have produced more than half their worth: but in assumpsit, the assignees, considering the party selling the goods as their agent, are entitled to recover only what was produced by the sale of the goods (m). If the assignees bring assumpsit, they affirm the contract, and the defendant, if a creditor of the bankrupt, may set off his debt (n). But the assignees cannot affirm the act of the bankrupt as their agent in part, and avoid it as to the rest (o).

A. agreed in writing with B. and C., on behalf of themselves and D., as partners in trade, to serve them, B. and C., and the survivor of them, for seven years, as their foreman, and not to engage in trade on his own account during that period without their consent; and B. and C. agreed to pay him wages after a fixed rate weekly, as long as he should serve them faithfully; it was holden (p), that the right of action for a breach of this agreement, by the dismissal of A. without a reasonable cause, passed to the assignees of A. on his bankruptcy, as being part of his personal estate whereof a profit might be made.

By the law of England (9), if not contradicted by the laws of the country where the property may be, the commissioners may dispose of the personal property of the bankrupt resident here,

(j) Per Parke, B., in Mogg v. Baker, 3 M. & W. 197.

(k) Kitchin v. Campbell, 3 Wils. 304; 2 Bl. Rep. 827.

(1) King v. Leith, 2 T. R. 141; and see ante, p. 216 (s).

(m) Per Grose and Buller, Js., in King v. Leith, 2 T. R. 144, 145.

(n) Smith v. Hodson, 4 T. R. 211, re

cognized in Russell v. Bell, 8 M. & W.277.

(0) Wilson v. Poulter, Str. 859; Brewer v. Sparrow, 7 B. & C. 313, per Bayley, J., S. P.

(p) Drake v. Beckham, (Ex. Ch. reversing judgment of the Court of Exch.) 11 M. & W. 315.

(g) Hunter v. Potts, 4 T. R. 182; Phillips v. Hunter, 2 H. Bl. 402.