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be void (h); as, where the vendor, by his own act, treats the goods as the property of the trader, which will be considered an election not to rescind the contract, although the trader himself may have been anxious to return the goods (i). And if the trader had the option, at the time of receiving the goods, of rescinding the contract, his right of exercising this option will be determined, if he keep the goods for a length of time; because the option ought to be exercised on the receipt of the goods, and not delayed until the trader is on
the eve of bankruptcy (k). Voluntary Voluntary conveyances by the trader, whether ance void. of the whole or of part of his effects, are void as
(1) Barnes v. Freeland, 6 T. R. 80; Harman v. Fisher, Cowp. 117. All the cases cited in the preceding note were decided on the express ground, that there had been no complete acceptance of the goods by the vendee at the time of the rescission of the contract. (See the distinction, 5 T. R. 405; 6 T. R. 86; 2 East, 124.) Of the case of Atkin v. Barwick, Lord Mansfield said, that the judgment was right, but the reasons wrong; for the true ground of the decision was, that the trader very honestly refused to accept the goods, and accordingly returned them, Cowp. 125; 4 Burr. 2239.
(i) Smith v. Field, 5 T. R. 402.
(k) Neate v. Ball, 2 East, 117. It is not a material question in such case, whether the trader's conduct and intentions were right or wrong, but merely whether the act be contrary or not to the policy of the bankrupt-laws; and it is clearly not allowable for the trader to take the goods with the intention of keeping them if he continue solvent, and returning them if he fail. See per Lord Kenyon, C. J., id. 125.
against the assignees. It is enacted () that if any bankrupt, being at the time insolvent, shall (except upon the marriage of his children, or for some valuable consideration,) convey, assign, or transfer his goods and chattels, &c., the commissioners shall have power to sell and dispose of the same; though the sale is declared to be valid against the bankrupt, and all persons claiming under him.
after bank ruptcy.
Section II.-Of Transfer of Goods by a Trader after
he has committed an act of Bankruptcy. After an act of bankruptcy, the trader has strictly Transfer no power whatever of disposing of his goods(a); for the property in a bankrupt's goods and chattels passes to the assignees, by relation, from the moment of the bankruptcy(6). Accordingly, it has been held that a sale or gift of the property by the bankrupt, after a commission has been awarded, though the commissioners have not become possessed of the goods, is void (c). So is a sale of goods generally,
(1) 6 Geo. IV. c. 16, s. 73. See 1 Mont. & Gregg, B. L. p. 449, (3rd Ed.)
(a) Waller v. Drakeford, 1 Stark. N. P. C. 482 ; Allanson v. Atkinson, 1 M. & S. 583 ; Copland v. Stein, 8 T. R. 199.
(6) Cooper v. Chitty, 1 Burr. 20; Lazarus v. Waithman, 5 B. Moore, 313; Copland v. Stein, 8 T. R. 208.
(c) Smith v. Mills, Moor. 594.
after an act of bankruptcy has been committed,
even before the commission is sued out (d). When good.
But, for the security of purchasers, it is enacted, that conveyances and other contracts, and dealings, by the bankrupt, made more than two calendar months (e) before the date and issuing of the commission (f); and payments really and bonâ fide made by the bankrupt to any creditor, at any time before the suing out of the commission (g), shall be valid, provided the party had no notice of any prior act of bankruptcy committed. And even where the party has notice, a bona fide purchase, for valuable consideration, shall not be impeached, unless the commission shall have been sued out within twelve calendar months after the act of bankruptcy (h).
Under the statute it was held, where a bankrupt's property was sold more than two months before the issuing of the commission, and part was purchased by a creditor, that, in an action brought by
(d) Dyson v. Glover, 3 Salk. 60. [It has been said, that a sale of goods by a bankrupt, even in market overt, did not alter the property against the assignees; Per Twysden, J. i Sid. 272. Qu? unless the vendee acted collusively.]
(e) If the time is saved by a single hour, it is sufficient; Godson v. Sanctuary, 1 Nev. & M. 52; Cowie v. Harris, 1 M. & Malk. 141.
(f) 6 Geo. IV. c. 16, s. 81.
(h) Id. sect. 86. [This enactment is new; the old statutes contained sections similar to the 81st and 82nd.]
the assignees for the price, the sale must be deemed to have been made by the bankrupt, and not by the assignees, and that the defendant was therefore entitled to set off the debt due to him from the bankrupt (i). Where the bankrupt, after a secret act of bankruptcy, sells goods for a valuable consideration, it is protected by the statute(k); provided, however, that it be all one transaction, and provided that the parties really had a sale in contemplation (). So, bona fide payments, after a secret act of bankruptcy, for actual debts, without any fraudulent preference, are protected by the statute (m), provided they be according to the ordinary and established course of dealing (n). It was held by Tindal, C. J., that giving a quantity of books, in payment of a dishonoured acceptance, was not a payment within the statute (c).
(i) Southwood v. Taylor, 1 B. & A. 471. See Hankey v. Smith, 3 T. R. 507, n.; Atkinson v. Elliott, 7 T. R. 378.
(k) Hill v. Farnell, 9 B. & C. 45; Cash v. Young, 2 B. & C. 413.
(1) Carter v. Breton, 6 Bingh. 617. See Lloyd & Welsby, Merc. Ca. 290.
(m) Tucker v. Barrow, 1 M. & Malk. 141; S. C. 3 C. & P. 85; Shaw v. Battley, 4 B. & Ad. 801 ; Churchill v. Crease, 5 Bingh. 177 ; Teale v. Yonge, 1 M‘Clel. & Y. 497 ; Cox v. Morgan, 2 B. & P. 398.
(n) Bolton v. Jager, 1 Ry. & M. 265; Hovil v. Browning, 7 East, 154 ; Hurwood v. Lomas, 11 East, 127; Bishop v. Crawshay, 3 B. & C. 415. It seems to be immaterial that the party receiving the
knew that the trader was in difficulties at the time; see 3 C. & P. 88.
(0) Smith v. Moon, 1 M. & Malk. 458.
When not Even where the transfer by the bankrupt is not protecled, the sale is protected by the statute, it is only voidable at the only. election of the assignees, and no objection can be
taken by third parties (p). Therefore, any act done by the assignees, affirming the transaction, makes it valid (9); as bringing assumpsit or debt, instead of trover, against the vendee (r). Nor
they repudiate the contract, after they have once affirmed it (s). If the assignees bring assumpsit, or other action in form ex contractu, the vendee may set off a debt due to him from the bankrupt (t). But a mere demand of payment, made by the assignees, does not conclude them from recovering in trover (u).
Section III.-Of delivery of Goods or Money to a
Trader after he has committed an act of Bank-
Delivery of goods to bankrupt.
(p) Laroche v. Wakeman, Peake, 140; Webb v. For, 7 T. R. 891 ; Fowler v. Down, 1 B. & P. 44; Ashley v. Kell, 2 Str. 1207.
(a) Wilson v. Poulter, 2 Str. 859; Read v. Vaughan, 7 Mod. 461; Butler v. Carver, 2 Stark. N. P. C. 433; Reed v. James, 1 Stark. N. P. C. 134; Bradbury v. Anderton, 1 Cr. Mees. & Rosc. 493, 494, (per Parke, B.).
(r) Hussey v. Fidell, 3 Salk. 59; S. C. 12 Mod. 324 ; Burra v. Clarke, 4 Campb. 355; Evans v. Mann, Cowp. 569.
(s) Brewer v. Sparrow, 7 B. & C. 310; Vernon v. Hanson, 2 T. R. 287.
(1) Smith v. Hodson, 4 T. R. 211.
(u) Hurst v. Gwennap, 2 Stark. N. P. C. 306. [And the Court afterwards refused a rule.]