not named or appointed by the country trader; if the carrier embezzle the goods, the country trader must stand to the loss. (Godfrey v. Furzo, T. 1755, 3 P. W. 186.) (a) So if A. order the goods to be transmitted to him by a particular carrier, though upon condition to return them again if he dislike them; yet upon delivery to the carrier the property is vested in A. and he will be bound to pay the price to the tradesman; and consequently the tradesman cannot bring trover against the carrier; (b) though perhaps if it were to come out in evidence, that the carrier had kept the goods in town, in satisfaction of a debt due from A. to him, (and that without the consent of A. who was soon after to run off) the court would leave it to the jury, and not let the carrier take advantage of such tortious act; for in such case there is reason to presume the carrier did not accept the goods for A. never having had any intention to deliver them to him; and if so, the property will not have vested in A. and consequently must remain in the radesman, who may therefore bring the action. (Haynes v. Wood, per Herbert, J. Surry, 1686.) The defendant, 7th April, sent goods to A. who in May following finding himself in bad circumstances, re-delivered the goods to a friend of the defendant's, and sent him notice; but before the defendant could signify his consent to take back the goods, A. became a bankrupt, and in an action of trover by the assignee, the (a) If the consignor of goods has paid the carriage, he may bring an action against the carrier for losing them, although by delivery to the carrier the property might vest in the consignee. Davis v. James, 5 Burr. 2680. Where it was alleged in the declaration that the defendant (a carrier) undertook to carry the goods for hire and reward, to be paid by the plaintiffs (the consignors), and it was proved at the trial that the consignee had agreed with the plaintiffs to pay the carriage, Buller, J. nonsuited the plaintiffs, but the nonsuit was afterwards set aside, and Buller, J. said, that, on re-considering the question, he found he had been mistaken in a point of law, for that whatever might be the contract between the vendor and the vendee, the agreement for the carriage was between the carrier and vendor, the latter of whom was by law liable. Moore v. Wilson, 1 T. R. 659. (b) So if a vendee order goods to be sent by land carriage, and there is only one land carrier, it is the same as if he had ordered them to be sent by that particular carrier, and he must stand to the loss. Vale v. Bayle, Cowp. 294. Defendant ordered goods of plaintiff, a tradesman in London, to be sent by the first tin ship to Falmouth plaintiff delivered them at a wharf, and entered them to go by the S. which was the first ship that was to sail. The wharfinger did not send them by the S. but by the next ship, which was lost. In defence to an action for the price, defendant offered to prove that the S. lay nine days at the wharf after the delivery, ready to take goods on board, but, Lord Kenyon held this to be a sufficient delivery according to the order, so as to charge defendant, and he said defendant might have an action against the wharfinger for negligence, which he conceived the plaintifis could not maintain. Twining v. Freeman,Guildhall, March 1790, MS.: Ca. court court held, there being a precedent consideration, viz. the debt, A. could not countermand the delivery, but the property revested in the defendant till disagreement, and the contract did not stand open till agreement. (a) Atkins v. Berwick, E. 5 Geo. I. 1 Str. 165. (b) But where a bankrupt, on the 7th November, indorsed and sent a [ 37 ] promissory note for £600 by the post to the defendant, to whom he was indebted to a larger amount, and the letter was carried to the post-office. that morning; but by the course of the post it could not go away till the next day, and the defendant could not receive it till the 10th, at which time he did receive it; and an act of bankruptcy was committed on the 8th, and it was found by the jury that the note was indorsed and sent in contemplation of an act of bankruptcy: the court held this to be a fraudulent preference of the defendant to the other creditors of the bank-: rupt; for that as the note was not found to have been indorsed in payment of any particular debt, and it might be in trust for the bankrupt, and no assent was given by the defendant, before the act of bankruptcy was committed, the assignees were entitled to recover it from the defendant. But it was there said, that if a man send bills of exchange, or consign a cargo to another who has before paid the value for them, the sending them to the carrier will be sufficient to prevent the assignees from recovering the goods or bills back, in case of an intervening act of bankruptcy; though the person to whom they were sent did not know of their being sent at that time.-Alderson and another, Assignees of Laroche and another, v. Temple, K. B. T. 8 Geo. S. 4 Burr. 2235. 1 Black. 660. (c) (a) Yet if there be a special agreement between the parties, that the consignor was to pay for the carriage of the goods, the action may be maintainable by the consignor. Per Le Blanc, J. Vide Vale v. Bayle, Cowp. 296. Davis v. James, 5 Burr. 2680, and Moore v. Wilson, 1 T. R. 639. (b) This case was decided on the ground, that both consignor and consignee agreed to rescind the contract of sale; the consignee expressly, and the consignor impliedly, as it was for his advantage. Per Buller, J. in Salte v. Field, 5 T. R. 214. But Lord Mansfield had treated this case as a refusal of consignee to take the goods on account of his situation, and he said the judgment was right, but that the reason given was wrong. T2 If 1 In Salte v. Field, both parties ex- (c) Quære, Whether the dif- A fraudulent If a man deliver corn to his servant to sell, who does so accordingly, and converts the money to his own use, the master may bring trover against him for the money, (Anon. M. 3 Jac. 1. Noy. 12. Higgs v. Holiday, H. 48 Eliz. Cro. Eliz. 746.); for though it has formerly been a doubt, yet it seems now to be agreed, that trover will lie for money, because damages only are to be recovered.-Isaac v. Clarke, M. 12 Jac. 1. 1 Rol. Abr. 5. pl. 1. Anon, Salk. 239. Anon. H. 5 Geo. 1. 1 Str. 142. (a) In trover for a debenture, the plaintiff must exactly prove the number of the debenture as laid in the declaration, and the exact sum to a farthing, or he will be nonsuited. (Per Holt, at Guildhall, 1707.) But he need not set out the number (any more than the date of a bond, for which trover is brought), for being out of possession he may not know the number, and if he should mistake, it would be a failure of his suit.Wilson v. Chambers, T. 1633. Cro. Car. 262. In order to prove property, where the action is brought by an assignee under a commission of bankruptcy, who may declare, if he will, ut de bonis suis propriis) it is necessary to prove, 1. The bankrupt a trader within the statute. 2. The act of bankruptcy. S. That the commission was regularly granted. 4. The assignment to the plaintiff. 5. A property in the bankrupt. (Pepys v. Low, E. 1 W. & M. Carth. 29.)(b) It will A fraudulent sale of goods, in contemplation of bankruptcy, by a person to one of his creditors, in combination to keep up the vendor's sinking credit, in order to prefer that creditor and cheat others, is void, and does not alter the property of the goods, (though it may not be an act of bankruptcy in itself.) And trover will lie for such goods after vendor has become a bankrupt. Therefore, where the bankrupt bought goods upon credit from several tradesmen, who did not suspect his circumstances, and sold the same goods to an agent employed by another creditor to a large amount, at prime cost, who gave his notes for them payable at a future day, which notes were paid in by the creditor employing the agent, for whose use also the agent sold the goods, and accounted for the profits with him as agent. This was held to be a fraud upon the other creditors of bankrupt, and a cheat by covin and collusion be tween him and that creditor, though in itself it did not amount to an act of bankruptcy, and that trover lay by assignees for goods. Roberts' Assignees v. Roberts, 4 Burr. 2477. (a) The case in Strange is this. In trover for money the court gave leave to bring the whole money declared for into court, but said, they could only do it in this case, and not in trover for goods; but that the court will, under particular circumstances, give leave to bring goods into court for which trover is brought. Vide Fisher v. Prince, 3 Burr. 1363. Cooke v. Holgate, Barnes, 281. Royden v. Batty, ib. 284. (b) These were formerly the requisites to enable the assignees of a bankrupt to maintain trover for the recovery of his property; but now by stat. 49 Geo. 3. c. 121. s. 10, it is enacted, that in any action brought. by or against any assignee of a bankrupt, the commission, and the procecdings under the same, shall be evidence will be proper therefore to consider what evidence is sufficient to prove these several things; and for that purpose I will set down the words of the several statutes which describe what persons may be bankrupts, and what acts will make them so.-Rush v. Baker, M. 8 Geo. 2. 2 Str. 995.) (a) in * By 13 Eliz. c. 7, any person using the trade of merchandize, by way of bargaining, exchange, rechange, bartery, chevisance, or otherwise, [ 38 ] gross or by retail, or seeking his trade or living by buying and selling, that departs the realm, or begins to keep house, or otherwise absent himself, or suffers himself willingly to be arrested for any debt not due, or suffers himself to be outlawed, to defraud any of his creditors, shall be deemed a bankrupt; (and by 1 Jac. c. 15,) or fraudulently procures his goods to be attached or secreted, or makes any fraudulent grant of his land or goods, to the intent that his creditors may be defrauded; (b) and by 21 Jac. 1. c. 19, any that uses the trade of a scrivener, receiving other men's money into his trust and custody, or any merchant who shall endeavour to compel his creditors to take less than their just debt, or gain longer time than was given upon the original contract, or being indebted in £100, or more, shall not pay or compound for the same within six months after due, and the debtor be arrested for the same, or within six months after an original sued out and notice thereof, or being arrested shall lie in prison two months or more upon that or any other arrest, or being arrested for £100 or more of just debts shall escape out of prison, or procure his enlargement by putting in hired bail. And by the said act 21 Jac. 1, in the cases of arrest and lying in prison, or getting forth by hired bail, he is to be deemed a bankrupt from the time of his first arrest. By 14 Car. 2. c. 24, the having money in the East India Company (c) will not make a trader; and in the 5 Geo. 2. c. 30, by which bankers, evidence of the petitioning creditor's debt, and of the trading and bankruptcy of the bankrupt, unless the other party in the action shall (if a defendant) before the time of his pleading to such action, and (if a plaintiff) before issue joined, give notice in writing to the assignee that he intends to dispute such matters, or any of them. (a) The assignees under a joint commission of bankruptcy against two cannot bring trover against a consignee of goods consigned to him bona fide, and for a valuable con sideration, by one partner before his 445. (b) If a grant be made, it does not amount to an act of bankruptcy, though a transaction, if manifestly fraudulent, on the eve of bankruptcy, will be set aside. Martin v. Pewtress, 4 Burr. 2480. (c) Nor in the Bank of England, South Sea Company, or any other so❤ ciety, brokers, brokers, and factors, are made liable to be bankrupts, there is a proviso that it shall not extend to any farmer, grazier, or drover. By 5 Geo. 2. c. SO. s. 24, if any bankrupt shall, after the issuing of a commission against him pay the person who sued out the same, his debt, or give or deliver to such person goods or any other satisfaction or security for his debt, whereby the person suing out the commission shall privately receive more in respect of his debt than the other creditors, such payment, &c. shall be such an act of bankruptcy whereby, on good proof thereof, such commission shall be superseded, and another commission shall be awarded to any creditor petitioning, and the person taking or receiving such goods or other satisfaction shall lose his debt and all that he has received.-Vide Vernon et al v. Hankey et al, Guildhall, 16th July, 1787. 2 T. R. 113. (a) As to the constructions on the aforesaid statutes, it has been held that a man cannot be a bankrupt in respect to debts contracted during his infancy, though the act of bankruptcy were committed after he was of age.-R. v. Cole, M. 10 W. 3. 12 Mod. 243. A. being arrested, puts in bail, afterwards he surrenders in discharge [39] of his bail, and is above two months in prison; he is a bankrupt only (a) It was said by Lord Camden, in Port v. Turton, 2 Wils. 171, and repeated by Lord Loughborough, in Parker v. Wells, 1 Cooke's B. L. 44. that a trader gains an extensive credit upon an uncertain and invisible capital, that credit will be in proportion to the extent of his dealings, and can be measured by nothing else; his real means are not visible, and, from the very nature of his trade, he is liable to unforeseen losses, by the failure of those persons to whom he is obliged to give credit, and with whose credit his is interwoven. In his behalf, the law, in the statutes of bankrupt, relieves him, in consequence of his large engagements, on a fair distribution of what he has; and in behalf of his creditors, they are permitted to have an immediate execution in the first instance, and force him to produce his accounts, and then make an equal distribution of his effects. But those persons whose principal business is not buying and selling, but merely bringing to market the produce of the lands, are in a different situation from the trader; their capital is open-it is permanent-it is limited-and their dealings are necessarily confined. Their credit rests upon their own endeavours and industry, and can rarely be involved with the credit of other persons. The working tailor only purchases instruments and necessaries to carry on his work-the merchant tailor buys and sells cloth; the one is a labourer, and not liable to bankruptcy-the other introduces all those consequences of extensive credit and connections with other per sons. The mode of enjoying the profits of a real estate will not make a man a bankrupt, and this must be left for the decision of the jury. Dict. per Buller, J. in Ex parte Harris, MS. Ca. and confirmed by Lord Mansfield. But buying and selling under particular restraints, and for particular purposes, is not a trading within the statute, as a schoolmaster buying books for the use of his scholars, Ex parte Walker, Co. B. L. 62. from |