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Сн. 32.
Art. 1.

1 W. Bl. 362, Compton v. Bodford.

1 W. Bl. 441,

v. Smith.

to run away with it, buy from the executor with that view, though for a full price, it is fraudulent.

30. But a creditor may attach, get a mortgage, a bill of sale of goods, &c. from his debtor, and thereby secure his whole debt. This he may do even under the bankrupt system, but the debtor under that system can never give a voluntary preference. Hence,

§ 31. Lord Mansfield said, a trader before an act of bankruptcy committed may pay a fair honest creditor in money or goods, or give him security.

32. But if the bankrupt assign all his stock in trade, it is 442, Hooper void, for the deed of assignment makes him a bankrupt; he not having any thing to trade on. The deed itself is an act of bankruptcy. A fraudulent exception of a part does not alter the case; but a trader may lawfully assign part of his stock in trade in favour of a particular creditor, the same day on which he afterwards commits an act of bankruptcy. As where a bankrupt assigned silks, about half his stock in trade, to his mother to secure a just debt, on the morning of the day on which he afterwards committed an act of bankruptcy.

1 W. Bl. 660,

Burr. 2235.

§ 33. And in this case Lord Mansfield said, a man may, Alderson v. or may not at the eve of a bankruptcy give a preference to a Temple. Same case, 4 particular creditor; if one demands first, or sues or threatens him, and he prefers without fraud, the preference is good, but -Cowp. 117, when it is clearly to defeat the law, it is bad. A bankrupt Fisher. See cannot of his own head make a preference. Therefore, if he 3 Wils. 47, prefer one creditor, in sending him a bill by post without his knowledge, this is fraudulent and void when done on the eve of bankruptcy. And in this case no course of dealing between the parties appeared in sending this note. See Bankruptcy,

Harmon v.

Linto v. Bartlett.

5 T. R. 420,

Caillaud.

See a. 4, s. 22.

Ch. 18.

§ 34. In this case the court held, that where one having Estwick v. several creditors, conveyed a part of his real and personal estate to a trustee, in trust out of the profits to pay half to the grantor and half to certain creditors named, not meaning any fraud or delay to other creditors, the conveyance was valid. And in this case Buller J. said, that "fraud is sometimes a question of law, sometimes a question of fact, and sometimes a mixed question of law and fact." In this case it was proved, that Lord Abingdon, the grantor, had no intention to defraud or delay Townsend, a creditor, who questioned the validity of the deed, and no other creditors appeared not provided for in the deed; and his remaining in possession of a house &c. was no objection, as it was satisfactorily explained. So, valid, though to the intent to delay a creditor of his execution, 3 Maule & Sel. R. 371, 377, possession was delivered. 35. The statute of frauds and perjuries, 29 Ch. II. c. 2,

CH. 32.

Art. 2.

has provided for sundry contracts being in writing, and has also introduced a distinction between written and unwritten contracts, already considered in chapter 11, a. 2, as to agreements &c. As the act was passed for the suppression of frauds, 1 Dallas 427. as well as perjuries, it ought to be liberally construed to effect those purposes.

admr. of

Abr. 393.

ART 2. Voluntary and fraudulent conveyances and settle- Mass. S. J. Court, Nov. ments, how affected by a further sale. 1. In this action the 1793, Essex, plt. claimed the estate as assets of his intestate for his credi- Goodale tors. The deft. claimed it as a fair purchaser. The case Hooper v. was, the intestate, Robert Hooper, A. D. 1787, when insol- Nichols. vent, conveyed the land in question to his son Greenfield See 2 Rol. Hooper, by deed executed, acknowledged, and recorded. A See Parker v. valuable consideration was expressed in it, but it was proved Partrick. there was no consideration in fact; but that it was a voluntary Stevenson v. settlement and fraudulent as against creditors. The son, the Hayward, grantee, entered and was seized and possessed for about five Pre. Ch. 310. years, and then sold it bona fide to the deft. for a valuable -Doer. Marconsideration; these facts were found by a special verdict. P. 332. The judgment was, that this after sale was good, as it was made to an innocent and fair purchaser.

Bailments.

tin, 4 Bos. &

Lord, Ch. 225, a. 9, s. The 12. See a. 13,

2. In this case Chief Justice Parsons held, second bona Máss. S. J. fide sale good, and the case of the second innocent purchaser Term, 1808, Court, April is better than that of the first innocent buyer. Swasey sold Sutton v. the land to Farley, his son-in-law, when insolvent, and this sale was questionable; Farley sold to the deft. bona fide. plt. levied on the land as Swasey's. Judgment for the This second sale to him being fair and honest, was valid if the first was not. A, buying without notice, is not affected Ch. R. 213, by the fraudulent purchase of his seller, and if B sell to one knowing the fraud, yet his title is good.

deft.

even

10 Johns. R. 185.-1 Johns,

219.-8 Johns. R. 137.

3 Com. D.

§ 3. So if one make a covinous settlement on his son, who 264. Covin

sells for a valuable consideration, and afterwards the father B. 4.sells to another for money, the son's sale is valid. And the 4Wheat. 487. principle as to personal estate is the same as it is as to the

real.

§ 4. The plt's. testator owned an annuity ticket and lost it, and the deft. came by it bonâ fide for a valuable consideration, and judgment for him, for he was an honest purchaser and had no reason to suspect it was the property of the testator. § 5. So a gaming bill accepted and endorsed to an innocent endorsee, is good against the endorser; otherwise if sued by a party to the wrong. A. D. 1696. Strange 1155; 9 Mass. R. 1. So if the maker's name be forged.

See 1 Sid.

134.-2 Bac.

Abr. 607.

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6. In this action of assumpsit by several partners, the deft. 8 T. R 140, was allowed to plead in bar the bankruptcy of one of them. 141, &c.— Case.--Woodeis Case in Colvile v. Parker.--Cro. Jam. 158, Jason v. Jervis.--1 Vern. 286.

Wilson's

CH. 32. And further held, that if partners by deed assign all their Art. 3. partnership effects &c. to trustees for the benefit of their creditors, and some of the separate creditors of one partner do not assent to it, the assignment is fraudulent and void, not only as against those creditors who did not concur, but was an act of bankruptcy; and that it was immaterial whether the creditors who did not concur were joint or separate; and a creditor of one partner has a demand on their partnership effects after the partnership creditors are satisfied.

9 Mod. 35, 38, in Chancery, Savage v. Foster.

2 Johns. R. 673.9 East 59, Doe v. Manning & Hopkins.

2 Esp. 292.-
2 T. R. 587,

Edwards v.
Harben.

2 T. R. 596, Buller J.

7. It has been held in the Court of Chancery, that if A owns an estate, and knows it, and knows that B is buying it of a third person, and A gives no notice of his right to B, A shall never after be permitted to set up his right to avoid B's purchase, for it was an apparent fraud not to give notice of his title; and infancy or coverture is no excuse. And in this case another strong case is cited. See Ch. 62, a. 5, s. 7; 1 Ves. jr. 190.

8. A voluntary conveyance without a valuable consideration, by 27 El. c. 4, is fraudulent against a subsequent purchaser for a valuable consideration, though with notice before all the purchase money was paid or the deed executed. In such case the law presumes fraud "without admitting sich presumption to be contradicted. Many cases cited.

ment.

ART. 3. Conditional sales. § 1. If the seller remain in possession, according to the usual course of business or the nature of the transaction, there is no fraud. As where Lord Montfort on his marriage, conveyed his household goods of his house in town, (among other things) to trustees in strict settleHis wife's fortune was £10,000, equal to all his debts then, and the goods were added to the settlement, his real estate not being deemed sufficient for the settlement. He remained in possession of these goods. The deft. was a creditor to him when this conveyance was made, and took the goods in execution. The trustees brought trover for them, and the court held, that the 13th of El. was only intended to operate against fraudulent conveyances, and that possession alone was not evidence of fraud. That this being a fair and proper settlement could not be deemed void under that statute. Not done "with a view to defeat creditors." This case has been often recognised, art. 4, s. 7.

2. So where cows were settled on the marriage of the plt's. wife on certain trusts. Held, not liable for her husband's debts. "When the deed is to take place at a future time, or when a condition is performed, the possession is still in the vendor by the deed, and is consistent with it." ،، And such possession comes within the rule as attending and following the deed;" also 2 Bos. & P. 59, 60.

CH. 32.

Art. 3.

§ 3. There is another case of sales not void by the 13 of El., though no possession has been given; as of ships at sea; for if a ship be at sea when sold, there can be no actual delivery of her, and there can be no other delivery but that of 2 T. R. 462, the grand bill of sale; and this amounts to a delivery of the Atkinson v. Moling. ship itself; for it is the next best act that can be done to give the vendee a title. This was a mortgage of a ship at sea, and Buller J. said, "the grand bill of sale is the only muniment of the property; by the vendee's taking that, he prevents the vendor from defrauding others." So no false colours were held out to the world. In this case" the plt. took possession of the ship the first moment she arrived in port."

Rolleston &

4. But do not these cases in England proceed on a prin- 3 T. R. 406, ciple that does not hold in the United States; the principle is, al. v. Hibbert that the grand bill of sale is "the only muniment of property" & al. in a ship. This is not by the common law, but by 26 Geo. III. ch. 60, sect. 17, which enacts, "that when, and so often as the property in any ship of a British subject shall be transferred to any other British subject in whole or in part, the certificate of the registry of such ship shall be truly recited in the bill, or other instrument of sale, otherwise such bill of sale shall be utterly null and void to all intents and purposes." By this act property in a British ship can pass from one British subject to another in no manner whatever, but by a bill of sale with her registry truly recited therein. 4 Cranch 48, 59, United States v. Willing & Francis. Held, if an American registered ship be sold while at sea to a citizen of the United States, there need be no bill of sale or new register till she returns to some port in them, and there is no fraud &c., see Ch. 224, a. 12, s. 23.

5. But this is not the law of the United States as in the following case.

Court, Essex,

r. Turil.

§ 6. This was an action of replevin brought by the plts. Mass. S. Jud. against Turil, a deputy sheriff; and the court held, our ships Jone Term may be conveyed at common law, as it respects property. 1795, Brown The case was, Turil attached the brig Lark as the property & Thorndike of Thorndike & Farrar, at the suit of General Fish; the plts., See Ch. 101, Brown & Thorndike, replevied her as their property. Turil a. 5, s. 23.pleaded that she was the property of Thorndike & Farrar. The See also Ch. plts. replied, that she was their property-and issue. A special eral cases. verdict found that the plts. gave a bill of sale of her to Thorn- 7 Johns. R.

47, a. 6. Sev

308.

dike & Farrar; but that the registry was not inserted in it. The ship's reThe question was, if this bill of sale conveyed the property to gister is not them, and the court decided that it did, as being good at evidence of common law, and that it was not made void by the act of itself of property.14 Johns. R. 201, Sharp v. U. S. Ins. Co.-4 Taun, 652.-8 East 10-14 East 226.16 East 169, and cases therein cited.

CH. 32.
Art. 4.

Congress of Sept. 1, 1789, sect. 11, which enacted, "that whenever any such ship or vessel shall, in whole or in part, be sold or transferred to any person or persons, the certificate of the registry of every such ship or vessel shall be recited at length in the instrument of transfer or sale thereof, and in default thereof such instrument of sale or transfer shall be void, and such ship or vessel shall not be deemed or denominated a ship or vessel, entitled to any of the benefits or advanSame princi- tages of a ship or vessel of the United States." And the ples, 7 Johns. court further said, that this last part of the clause made the R. 308. bill of sale to Thorndike & Farrar void only as to benefits in custom-house, and not as to the transfer of property; and herein is the material difference between our act and that of the 26 Geo., which makes a bill of sale without a registry inserted, void to all purposes.

4 East 130.

2 Burr. 941.

1 Wils. 229.

1 Mass. R. 165, Alexander v. Gould.

3 Mass. R. 487, Liver

more, assignee of

Bartlett v.

Bagley.

4 Mass. R. 502, Kimball v. Cunning ham jr.

4 Mass. R. 661, Portland Bank v. Stacy

7. Yet three years before the 26th of Geo. passed, Lord Mansfield said, a mortgage of ships abroad, or of goods on the high seas by a trader, is good, notwithstanding the 21st of James I, ch. 19, sect. 11, though possession has not been actually delivered," for a bill of sale is all the possession that can be delivered till the ship comes home."

Articles of conveyance may be set aside for evident fraud and imposition, and so for imposition and public inconvenience, as in buying sailor's prize money &c.

ART. 4. Further American cases as to frauds. § 1. This was a real action for land; this land the plt. had taken in execution against one Lennel, Oct. 2, 1800, under whose deed the deft. claimed, dated Nov. 3, 1798. Held, that though this deed was void as to creditors, yet it was not to be avoided by a creditor, the consideration of whose debt was illegal. The plt. was nonsuited.

2. In this action the court held, that a colourable sale and transfer of personal property, though void as against the vendor's creditors, does not amount to an act of bankruptcy, unless executed by a fraudulent deed or conveyance; that the concealment of goods to prevent their being taken in execution must be actual, not constructive, and by the bankrupt himself. 3. The court decided in this action, that to enable a party to a sale or exchange to avoid it for the fraud of the other party, the party attempting to avoid it must return all he has received in virtue of it; for by retaining any part he affirms the contract, and he cannot affirm an entire contract in part and avoid it in part.

4. In this case it was decided, that a bona fide conveyance by deed of a vessel and cargo abroad at the time, is valid & Mansfield, against creditors, if the vendee take possession thereof without dep. sheriffs. delay on the return of the vessel :--that there is no difference

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