v. HEY disseisin and before re-entry: and it is contended, that as the MOORHOUSE, tortious possession of Cooke commenced on the 2nd of February, and the acts of the defendants were committed subsequently to that period, they are not liable to be sued as trespassers before a fresh entry by the plaintiff. The answer to this argument is, that there has been no disseisin, nor any title acquired by the defendants from a disseisor. The plaintiff having regained possession of the land by his peaceable entry *upon the unlawful possession of his tenant, and being entitled to treat his tenant as a trespasser, all those who came upon the land without title after such revesting of his possession, were trespassers also, and were liable to be sued as such. The two first objections, therefore, are unfounded. [58] [59] The third objection is, that the direction of the learned Judge with respect to the third issue, was not correct. He thought, as he states in his report, that the claim on Cooke and the defendants was a claim for mesne profits, and that satisfaction with regard to one was an answer as to all; but he thought that the plea was not proved, because, in order to make it a good plea, it must be construed to import that Cooke had a legal claim on the plaintiff, or at least a colourable legal claim; that is, a bonâ fide disputable claim to a legal right in respect of the farm, which would be a good consideration for the agreement, and which he gave up as a consideration for the plaintiff giving up his claim for mesne profits; and as there was no proof of such right or claim, he held that the plea was not proved; reserving the point for the consideration of the Court. The agreement proved at the trial, was as follows: "I, the undersigned George Cooke, do hereby acknowledge that I have no claim or demand whatsoever against William Hey, Esq., for or in respect of my farm at Pudsey, lately occupied under him, or for or in respect of any notices or proceedings whatsoever taken by him in order to obtain possession of the same farm held over by me, and in order to prevent the wrongful removal by me of the crops growing thereupon; and in consideration of the foregoing undertaking, I, the undersigned W. Hey, do hereby relinquish all claims against the said George Cooke for mesne profits and rent, or for holding over the said farm: Witness our hands the 24th July, 1838." If it were necessary that the pendency of disputes between Cooke and the plaintiff should be proved at the trial, it might be necessary that the claims of Cooke should be shown to be of such a nature HEY as would afford a sufficient consideration for the agreement pleaded. But the existence of the claims, as pleaded, does not appear to have MOORHOUSE. been put in issue. The plea states that certain disputes were then pending between Cooke and the plaintiff, touching and concerning certain claims of Cooke against the plaintiff (inter alia) for and in respect of a certain farm then lately occupied under the plaintiff. The replication, which denies the making of the agreement by Cooke, and the acceptance of it by the plaintiff in satisfaction, admits the existence of disputes touching certain claims of Cooke, as pleaded in respect of a farm lately occupied under the plaintiff. The only farm which Cooke occupied under the plaintiff, was proved to be the farm at Pudsey. The agreement produced acknowledges thereby that Cooke then had no claims or demands whatsoever against the plaintiff, in respect of Cooke's farm at Pudsey, lately occupied under the plaintiff; and in consideration of this undertaking (that is, of such acknowledgment), the plaintiff agrees to relinquish all claims against Cooke for mesne profits or holding over. This agreement sufficiently shows the understanding of the parties, that Cooke had agreed to give up his claims on the plaintiff respecting the farm at Pudsey, whatever those claims might be. * It was objected, at the trial, that the agreement of the plaintiff to relinquish all his claims for mesne profits or holding over, did not extend to the trespasses in question. The learned Judge, however, thought that the action was substantially brought for mesne profits, and consequently that the agreement did extend to the trespasses in question; in which opinion we agree with him. He further thought, that, supposing the plea to be good, it must be construed to import that the claims of Cooke, which he agreed to abandon, were legal or at least colourably legal claims; in which opinion we also agree; for we think that, upon a general demurrer, the plea would be so construed. But the express ground upon which he directed the jury to find the third issue for the plaintiff was, that no evidence was given that the claims of Cooke were of such a nature as the plea imported. It appears to us, however, that no such proof was necessary upon the issue joined; the existence of Cooke's claims, as pleaded, being admitted on the record. The allegation contained in the plea, and admitted by the replication, was, that Cooke had claims, that is, legal, or fairly disputable claims, touching a farm occupied under the plaintiff; and the only farm occupied by Cooke under the plaintiff was the farm at Pudsey; and as it was proved that both parties executed an [ *60 ] HEY v. agreement, by which the plaintiff agreed to relinquish his claims MOORHOUSE. to mesne profits in consideration of the undertaking contained in that agreement, by which Cooke gave up all his claims on the plaintiff respecting his farm at Pudsey, we think that the jury ought not to have been directed to find the third issue for the plaintiff, for want of proof of the nature of Cooke's claim. 1839. Nov. 9. [61] The point having been reserved by the Judge, the consequence is, the rule for entering a verdict on the third issue must be made absolute, and the rest of the rule discharged. Judgment accordingly. HARWOOD, ASSIGNEE OF CREED, A BANKRUPT, (6 Bing. N. C. 61–65; S. C. 8 Scott, 171; 9 L. J. (N. S.) C. P. 105.) Goods were sold by defendant as agent of C., in contemplation of C.'s bankruptcy, for the purpose of raising money for defendant and C.: the buyer did not know the sale to be fraudulent: Held, that such sale was not an act of bankruptcy by C. THIS was an action of trover brought by the assignee of Creed, a bankrupt, to recover from the defendant the value of certain goods sold by the defendant as the agent of Creed. The defendant pleaded, first, not guilty; 2ndly, that the plaintiff was not legally possessed as assignee; 3rdly, that two months before the fiat issued, the defendant, by the authority and as agent of the said bankrupt, sold the said goods, and that he had no notice of any act of bankruptcy committed by Creed. Issue was joined upon the two first pleas, and the general replication de injuriâ, &c., put in to the last. The cause was tried before Maule, B. at the last Spring Assizes for Somersetshire. At the trial, the bankruptcy of Creed was admitted; and it was proved that the goods were sold by the defendant as agent of Creed in contemplation of Creed's bankruptcy, for the purpose of raising money for the benefit of the defendant and Creed. The defendant was employed to procure purchasers; the goods remaining in the possession of the bankrupt till delivered to the purchaser. The learned Judge told the jury that if any sale was made by the defendant and Creed, with a view to defeat or delay the creditors of Creed, and such sale was fraudulent on the part of the buyer, it was an act of bankruptcy, (1) See note to Baxter v. Pritchard, 40 R. R. 335.—R. C. and that the defendant was liable for that sale, and for all subsequent matters in which he assisted; but that such sale was not an act of bankruptcy, unless the buyer knew the sale to be fraudulent; and that any intention to delay creditors, whether by way of fraudulent preference, or otherwise, would not be sufficient. The jury negatived the buyer's knowledge of any fraud, and the verdict was entered for the defendant. A motion for a new trial was made on two grounds; 1st, that the finding of the jury was contrary to the evidence, and 2ndly, that the direction of the Judge was incorrect, in stating that the buyer's knowledge of the fraud was necessary to constitute an act of bankruptcy. But as, upon reference to the learned Judge, he expressed himself to be satisfied with the verdict, the rule was granted on the latter ground only. Bompas, Serjt., who was to have shown cause against the rule, not having received his instructions in time, Erle and Butt were heard in support of the rule: They contended, first, that the circumstances under which Creed had employed the defendant as his agent to sell the goods, was in effect a delivery of the goods to him within the third section of 6 Geo. IV. c. 16, which makes it an act of bankruptcy if a trader “shall make, or cause to be made, any fraudulent gift, delivery, or transfer of any of his goods or chattels, with intent to defeat or delay his creditors." If it were otherwise, a trader might elude the bankrupt laws and favour any particular creditor, merely by making him an agent for sale, and allowing him to receive the proceeds, instead of selling or transferring goods to him directly. Secondly, there might be a fraudulent transfer of goods within the meaning of the statute, notwithstanding the buyer of the goods might be ignorant of the fraud. Cumming v. Baily (1) was in point on that head. There, a banker on the eve of stopping payment, sent a bill of exchange for 300l., the property of the firm to which he belonged, to a customer who had paid in that amount to the banker's London correspondent: the *customer knew nothing of the failing circumstances of the banker, and was innocent of any fraud; yet this was held an act of bankruptcy. So in Beran v. Nunn (2) it was held, that under 6 Geo. IV. c. 16, (1) 31 R. R. 438 (6 Bing. 363). (2) 9 Bing. 107. HARWOOD v. BARTLETT. [ 62 ] [ *63 ] HARWOOD a transfer of goods in satisfaction of a bona fide debt, made volunBARTLETT. tarily, and in contemplation of bankruptcy, was an act of bankruptcy, v. [ *64 ] and was not protected by the eighty-first section, though made more than two months before the commission issued. In Pearson v. Graham (1), the defendant, who was in the employment of the bankrupt, and acting under a general authority, sold goods of his after an act of bankruptcy of which the defendant knew nothing, was held liable in trover to the assignees. Baxter v. Pritchard (2), Rose v. Haycock (3), Cooke v. Caldecott (4), and Hill v. Farnell (5), which were relied on for the defendant at the trial, might be distinguished on the ground that in those cases the defendant was the fair purchaser of the goods, and protected by sect. 82 of 6 Geo. IV. c. 16. Here the defendant was a conspirator with the bankrupt. TINDAL, Ch. J. (after stating the facts as ante): Cur, adv. rult. The only question which arises upon this state of facts is, whether, assuming the sale of the bankrupt's goods to have been made by him with the fraudulent purpose of delaying his creditors for his own benefit, or that of the defendant, such sale amounted to an act of bankruptcy, where the purchaser acted bonâ fide, and in ignorance of such purpose and intention of the bankrupt. And we are of opinion, that the direction of the learned Judge on this point was correct. The words descriptive of an act of bankruptcy in 6 Geo. IV. c. 16, s. 3, are, "shall make or cause to be made, any fraudulent gift, delivery, or transfer, of any of his goods or chattels, with intent to defeat or delay his creditors." In this case there appears to have been a fraudulent intent, on the part of the seller, to defeat his creditors for the benefit of the defendant; but there was no gift, delivery, or transfer of the goods to the defendant; he being only the agent of the seller, by whom the sale to the buyers was effected, for it appears, upon the evidence, that the defendant was merely employed to procure purchasers for the goods, the goods remaining in the possession of the bankrupt himself, or under his control, until they were delivered by his order to the purchasers; and as to the buyers, there was not any transfer or delivery to them which was fraudulent on their part. (1) 45 R. R. 644 (6 Ad. & El. 899). 460, n.). (4) Moo. & Mal. 522. |