1769. MARTIN V. vanced, as a debt due from the bankrupt: for, that would give them the full effect of their fraud. Though the bankrupt himself, being party to the fraud, could not have sustained this action; yet his assignees PEWTRESS, may sustain it. All his property is transferred to them. Therefore this action of trover lies, and it is the proper action; and the jury may assess damages. No other verdict could have been given. [2180] The counsel for the defendants, who prayed a new trial, (Mr. Dunning Solicitor General, Mr. Serjeant Davy, Mr. Serjeant Burland, and Mr. Cox,) contended that it would not be just, that the defendants should pay the whole sum given by the verdict; and, on the other hand, only come in as creditors for part of it. They contended also, "that trover is not the proper "action." They argued, that either the property of these goods continued in the original owners, and never vested in the bankrupt; (for if fraudulent, the fraud would have affected the whole transaction;) or else, it was transferred by him to the defendants. In neither case, could his assignees, they said, maintain trover for them. In the former case, the original owners were intitled to the action in the latter, the bankrupt might transfer these goods to the defendants or to whom he pleased, either with or without consideration, at any time before an act of hankruptcy was committed. The assignees have no right to recover them, as standing in the place of the bankrupt for, the transaction is clearly good, as against him. If these goods had been paid for in specie, that cash in specie would have been paid into the shop of the defendants, just as the notes werc. So that this circum stance makes no difference. The defendants did not apprehend the bankrupt to be insolvent, or in danger of insolvency, at the time of this transaction.' Therefore no action of trover will lie and it is the more improper; because there can be no set-off in an action of trover. Lord MANSFIELD-the two grounds of this motion are-1st, that the jury have done wrong in finding the transaction to be a fraud: 2dly, that supposing the transaction to be fraudulent, yet the plaintiffs ought to have been nonsuited. And if that be so, a new trial ought to be granted; in order that they may have the benefit of a nonsuit, upon a new trial. As to the fraud-The fraudulent design and intention must depend upon circumstances. 1769. MARTIN In the present case, 'tis as clear as the Sun, that the whole was a wicked scheme, concerted between the defendants and the bankrupt Edward Robarts, to keep up his credit, to enable him to get goods which were to be employed to satisfy and discharge the debt due to the PEWTRESS. defendants. One of them is brother to the bankrupt. They must have known his insolvency: for, to their knowledge, the goods were sold at prime cost. The bankers did not deal in such goods. Had they bought them openly and in their own names, and applied the money to sink the debt due to them, the neighbourhood would have been imme. diately alarmed. They knew that the persons who sold their goods upon credit, to the bankrupt, would never be paid. But I did not think it amounted to an act of bank, ruptcy, for the reason I have given, and left it to the jury on the point of fraud affecting and annulling the whole transaction. I dictated my apprehension of the consequences of this verdict, in taking the account before the commissioners, to the following effect. "That in consequence of the verdict, the notes given by Sweet and the other purchasers of the goods, and "delivered or paid by the bankrupt to the defendants, are not to be considered or imputed as any payments at all, being totally void. And if any money was paid "by the defendants to the bankrupt, as in consideration "of such goods so fraudulently sold, such money is re"ceived by the bankrupt without any consideration; "and therefore to the use of the defendants; and, con "sequently, to be set off under the commission." V. HIS LORDSHIP held the action of trover to be main [2481] tainable. A trader can't alter the property of goods, by a criminal fraudulent transaction, to the prejudice of his creditors. Mr. Justice YATES-The general question is, "whether an action of traver is, in this case, maintain❝able." One objection to it is, "that the defendants are pre"cluded from a set-off." But this would be an objection against all actions of trover; for, there can be no set-off, in any action of trover. An action of traver must be founded on property. The question then is "whether this transaction altered "the property, with respect to the assignees.” If fraudulent, it does not alter the property. 1769. MARTIN V. PEWIRESS, [2482 ] The assignees do not stand in the place of the bankrupt, in every respect: particularly, where the act of bankruptcy has been fraudulent. It must be inquired therefore, "whether this was a "sale and a transfer of the property." The jury have considered it as not so: and I think they were well warranted in such their notion of it. 46 It is said that the bankrupt, before he had com"mitted any act of bankruptcy, might have delivered the goods, or paid the money to whom he pleased." But here he has not done so; but has pursued a method which is fraudulent, and which is calculated to cheat innocent persons: and the defendants were pricy to it and assisting to keep up the credit of a sinking man, under false appearances. This cannot be considered as a sale. The defendants are not linen-drapers; they had no warehouses; they don't even appear in the matter. It is a scheme to save themselves, and to cheat innocent persons-a fraudulent design. This action of trover is a proper remedy to relieve the creditors. He therefore concurred in opinion, with Lord MANS‣ FIELD Mr. Justice ASTON-The question is "whether the "property was changed by such a sale as this." He held that it was not. And he was of opinion, that though this was not an act of bankruptcy in itself; yet being a scheme concerted, at the eve of a bankruptcy, to cheat innocent persons, in order to secure particular creditors, it is such a fraud as shall render the sale roid. Then he mentioned several circumstances which shewed the fraudulent combination, and the contrivance of it in order to avoid the appearance of an express preference, at the expence of innocent persons. He said, the jury could not have found otherwise than they have done, unless they had been out of their senses. The question "whether this action of trover lies," de pends upon the evidence: and that shews, "that the property was never altered.” 66 Therefore the verdict is very right; the action is well brought; and it is the only action that could be brought. Mr. Justice WILLES Concurred. Per Cur'. unanimously RULE DISCHARGED. 1769. THI VIGERS versus ALDRICH. HIS was an action of debt upon a judgment. It appeared upon the plea, and was admitted by the replication, that the defendant's person had been taken in execution, by virtue of a capias ad satisfaciendum, upon this judgment; and afterwards discharged out of custody, by consent of the plaintiff, upon his entering into an agreement "to pay certaia sums of money at stipulated "times;" part whereof he had accordingly paid to the plaintiff pursuant to the said agreement, but had failed in payment of the remaining part. The plaintiff, in his replication, acknowledged all this; and yet concluded it with demanding the whole sum due upon the judgment. The defendant demurred to the plaintiff's replication. Mr. Ashhurst, for the defendant argued that the defendant having been once taken in execution upon this judgment, and afterwards discharged of the execution 2483 ) against his person, by the consent of the plaintiff, he could not be liable to any further execution upon it; nor could the plaintiff bring an action of debt upon that same judgment, which had been already so carried into execution, and the defendant so discharged from it. He also objected to the replication, as repugnant, in per- f10 Vin. 94 sisting to demand the whole sum recovered by the said pl. 11.] judgment; though it admits part of it to have been satisfied. Mr. Mansfield contra, for the plaintiff, endeavoured to answer the first and principal objection, by putting the plaintiff's consent to the defendant's discharge, upon the foot of a conditional one, and entirely rescinded or an. nulled by non-performance of the condition; and there fore, in event, no consent at all. As to the fault objected to, in the form of the replication; he said, it might be amended. But, THE COURT were clear with Mr. Ashhurst in both points. They held this to be an absolute consent in the plaintiff, to discharge the defendant out of execution, in conside ration of a new agreement then entered into, whereby he was to receive several sums of money instead of the person of the defendant; (which was all that he could have had; if he had kept the defendant in gaol:) and that he could not bring an action upon the judgment, after the defendant had been taken in execution and discharged by the 1769. VIGERS V. ALDRICH, plaintiff's own consent; but ought to have brought a new action upon the case, founded on this new agree ment. Mr. Justice YATES added a strong reason why he could not bring an action upon the old judgment; namely, that it was the constant method of declaring, in an action of debt on a judgment, to alledge in the declaration," that the judgment still remained altogether "unsatisfied." They also held the replication to be repugnant in demanding the whole sum, when it acknowledged it to be salisfied in part. Per CUR'. unanimously JUDGMENT for the DEFENDANT, [2484 ] Production of RICHARD ROE, on the several demises of ELIZABETH IN Nejectment-for certain premisses in Newtown alias Frankville, in the Isle of Wight. The demises were laid on 6th of October 1768. The cause was tried before Mr. Justice ASTON at Winchester. He reported, that the title opened for the plaintiff was under Mrs. Haldane, as devisee of Robert Holmes. Two deeds were produced, (a lease and release,) dated 11th and 12th of October 1731, between the said Robert Holmes, and John Blachford, whereby Holmes, in consideration of £20 conveyed to John Blachford and his assigns, Little Starles, sinee called Bides, in Newton alias Frankville; to hold to the said John Blachford, for life. William Clark said that he had these deeds from the plaintiff's attorney and Richard Clark proved that he received the rents of these pre"misses for John Blachford, for the years 1752 and 1753, of one John Drake since deceased." That John Blachford died in 1759: and that after his death, this witness received the rents of the same premisses for three years, for Robert Blachford the son of John, as devisee of his father. That in 1765, this witness was spoken to by Mrs. Holmes, for Mr. Blachford to give up the possession ; and that Blachford gave up the possession. Then the will of Robert Holmes was produced, and proved; dated 24th January 1738. It appeared that he |