regard to the degree and nature of the fraud which enables the vendor to treat the sale as wholly void. A., of London, being in danger of insolvency, goes to Glasgow, and obtains goods from B., for which he pays by a bill on a house in London (O. & Co.), which he knows to be insolvent. The goods are shipped at Leith, (the invoice and receipt from the ship-owners being made out to A.,) and are delivered to C., a wharfinger in London, who afterwards receives notice to hold them for B. A. becomes bankrupt. In an action of trover, by A. against C., for the benefit of the assignees, it was held, that there was not such. conclusive evidence of fraud on the part of A. as to avoid the contract. Gibbs, C. J., delivered the opinion of the Court as follows:-"The Court is of opinion that there ought to be a new trial in this case, because, without defining exactly what may or may not amount to such a fraud as would render the sale in question absolutely void, we are of opinion that the evidence, as it stands, does not show any conduct on the part of the plaintiff sufficient to convince us that the transaction was void. It was proved that he knew that Outhwaite's bill was worth nothing, and that he considered his own credit in England as nearly gone; that he went to Glasgow, intending to purchase goods there from persons unacquainted with his credit, or with the character of the bills: but by what means he prevailed on B. to sell him the goods is not in proof, and unless his representations amounted to the offence of obtaining goods under false pretences, we cannot take upon ourselves to say that the contract was altogether void. Without, therefore, saying what proof the case may be capable of,-seeing that there is a strong presumption of fraud,-we grant the new trial only on the ground that the proof, as it stands, is not sufficient to fix fraud to that extent on the plaintiff."

In Irving v. Motley (f), which was trover for wool, which the plaintiffs alleged the defendants had obtained by fraud, it appeared that it had been purchased of the plaintiffs by one D., as agent for Messrs. W. & Co., and that they pledged it two days afterwards to the defendants for an advance made by them to

Parke, J., said that in Noble v. Adams it was not meant to be laid down by Gibbs, C. J., that no other species of fraud than the obtaining goods by false pretences would vacate the bargain,

and enable the vendor to maintain trover.

(f) 7 Bing. 543; 5 M. & P. 380,

S. Č.

W. & Co., through the intervention of D., who acted as the agent of the defendants as well as W. & Co. The plaintiffs, in order to show that W. & Co. had obtained the wool without intending to pay for it, they being insolvent at the time of the purchase, and which D. was aware of,-offered certain contracts in evidence signed by D.; and his hand-writing to them having been proved, it was held, that such contracts were admissible without calling D. as a witness. And the jury having found that the transaction between D. and W. & Co. was fraudulent, but that the defendants were not cognisant of the fraud, and that D. was their agent as well as the agent of W. & Co., whereupon the plaintiffs obtained a verdict; the Court refused to grant a new trial, as the defendants were liable for the fraudulent acts and misconduct of their own agent.

Indebitatus assumpsit lies to recover the price and value of goods, which the defendant, by fraud, procured the plaintiff to sell to an insolvent, and then got into his own possession; for he could not set up the sale, because his own fraud had procured it; and the mere possession of the plaintiff's goods, unaccounted for, raises an assumpsit to pay (g). And where goods were supplied to a minor, upon a fraudulent representation by his father, that he was about to relinquish his business in favour of the son; although the credit was given to the son, the father dealing with the proceeds was held to be responsible in assumpsit for goods sold and delivered (h). It appears also, that, where goods have been delivered to a vendee under a contract of sale procured by his own fraud, he may be sued for the recovery of the goods, or their value, though they may have been sold on a credit which has not expired at the time the action is commenced; but in such case the vendee could not be sued in assumpsit for the price, but

(g) Hill v. Perrott, 3 Taunt. 274; Smedley v. Gooden, 3 M. & Selw. 191; Bennet v. Francis, 4 Esp. 28; Abbotts v. Barry, 2 Brod. & B. 369; and per Parke, B., in Bradbury v. Anderton, 1 C. M. & R. 490; 5 Tyr. 152. See Martin v. Pewtress, 4 Burr. 2477; the case of a scheme between a bankrupt and a relation to keep up the bankrupt's credit, in order that he might buy goods, to be employed in paying a debt due to the defendant. And in trover by the vendor against

the person to whom the vendee disposed of the goods, the vendee is a good witness for the plaintiff; Tribuer v. Soddy, 7 C. & P. 718.

(h) Biddle v. Levy, 1 Stark. 20. But in some instances the proper remedy is by a cross action for the deceit. See Thompson v. Bond, 1 Camp. 4, and Read v. Hutchinson, 3 id., 252, recognised per Parke, B., in Selway v. Fogg, 5 M. & W. 86; and see Popley v. Ashley, 6 Mod. 147.

the remedy is trover. The fraud entitles the vendor to avoid the sale; if he sues in assumpsit, he affirms the express contract which has been entered into between the parties, and where there is an express contract the law will not imply another (i).

If there be any fraud on the part of a vendor which would entitle the vendee to avoid the sale, and the latter, after discovering such fraud, deal with the property as his own, he can. not recover his purchase money, nor is his right to repudiate the contract revived by his subsequently discovering another incident in the same fraud (k). Where A. agreed to underlet his house to B., the latter paying for the furniture at an appraisement; it was decided, that B. was excused from the performance of the agreement, because A., at the time he quitted the house, was in arrear for rent to his landlord (1).

The law respecting fraudulent warranties as to goods, and fraud on the sale of goods bought "with all faults," will be noticed hereafter.

What Sales are fraudulent as regards third Persons.—It is enacted, by the statute 13 Eliz. c 5, which appears to be declaratory of the common law (m), that every gift, grant, bargain, and conveyance of goods and chattels, &c., or any profit thereof by writing or otherwise, with intent to delay, hinder, or defraud creditors, and others, of their lawful actions, suits, debts, accounts, damages, &c., shall be utterly void, but only as against that person or persons, &c. whose actions, suits, debts, accounts, damages, &c., shall by the fraudulent transfer be disturbed, hindered, delayed, or defrauded; with a proviso or exception in favour of estates or interests in goods, &c., created or vested upon good consideration, and bonâ fide, in any person not having at the time notice of the fraud.

Twyne's case (n) is a leading authority, and contains some

(i) Strutt v. Smith, 1 C. M. & R. 312; Bradbury v. Anderton, 1 C. M. & R. 490; 5 Tyr. 152, S. C. Ferguson v. Carrington, 9 B. & C. 59; Hogan v. Shee, 2 Esp. 522, 523; and see Selway v. Fogg, 5 M. & W. 86; De Symons v. Minchwick, 1 Esp. 430, is no longer law.

(k) Campbell v. Fleming, 3 Nev. & Man. 834; 1 Ad. & E. 40, S. C., and see Selway v. Fogg, 5 M. & W. 83.

(1) Partridge v.Sowerby, 3 B.&P.172. (m) See per Lord Mansfield, C. J., Cadogan v. Kennett, Cowp. 434. A bill of sale of a ship may be valid, though the consideration be not truly stated; Robinson v. Macdonnell, 5 M. & Selw. 228.

(n) Star Ch. 44 Eliz. 3 Co. 80; Moore, 638, S. C.; Shep. Touch. 66. Twyne's case has been recognised in all the subsequent cases as good law.

valuable principles upon this subject. Pierce was indebted to Twyne in 400l., and to C. in 2007. Pending an action by C. to recover his demand, Pierce being possessed of goods of the value of 3007., secretly by deed conveyed all his goods whatsoever to Twyne in satisfaction of his deed. Pierce, however, continued in possession, and sold some of the goods, notwithstanding the deed. He sheared some of the sheep (part of the effects) and marked them with his own mark. C., having obtained judgment, took the remaining goods in Pierce's possession in execution. The Court held, that he was justified in so doing, because the alienation to Twyne, though by deed, and for a valuable consideration, was fraudulent and void against C.'s judgment and execution. The reasons for the decision are stated to have been, 1st, That the gift had the signs and marks of fraud, because the gift is general, without exception of his apparel, or any thing of necessity; for it is commonly said, quod dolosus versatur in generalibus: 2ndly. The donor continued in possession and used them as his own, and by reason thereof he traded and trafficked with others, and defrauded and deceived them (0):-3rdly. It was made in secret, et dona clandestina sunt semper suspiciosa : -4thly. It was made pending the writ (p):-5thly. Here was a trust between the parties, for the donor possessed all, and used them as his proper goods, and fraud is always apparelled and clad with a trust, and a trust is the cover of fraud :-6thly. The deed contains that the gift was made honestly, truly, and bonâ fide; et clausulæ insuetæ semper inducunt suspicionem.

It will be remarked, that the Court considered that the alienation to Twyne was not within the proviso, or exception, in the statute; for though it was upon a good consideration, it was not bonâ fide. There may therefore be fraud in transferring goods

When a fieri facias, delivered for the evident purpose of protecting the goods against other executions, and not executed with due diligence, &c. shall be deemed fraudulent and void, see Arch. Prac. by T. Chitty; Lovick v. Crowder, 8 B. & C. 132; Crowder v. Long, id., 598. A marriage settlement of cows and their produce on a woman, is good against creditors of the husband, even as to the produce; the husband covenanting to allow her to carry on business, and not interfering, &c.;

Haslington v. Gill, 3 Dougl. 415; 3 T. R. 620, note a; Jarman v. Wollston, 3 T. R. 618.

(0) See Worsley v. Demattos, 1 Burr. 482, per Mansfield, C. J.

(p) See Holbird v. Anderson, 5 T. R. 235, post, 413, which shews that a bill of sale will not be deemed fraudulent, merely because it was executed pending an action against the vendor ; and see Martindale v. Booth, 3 B. &

Ad. 498.

even to a creditor. The fraud consists in the collusive attempt to delay or defeat a creditor; in other words, to favour the debtor at the expense and to the prejudice of the creditor. The chief evidence of this generally is the vendor's remaining in possession after the assignment. This tends to show a collusion between the parties to protect the goods from the creditors of the assignor, and to defeat such creditors.

Edwards v. Harben (q) is also a prominent authority upon this subject. In that case, Mercer, (the debtor), executed to the defendant, as a security for his debt, on the 27th of March, 1786, a bill of sale of his, Mercer's, goods, (specifying them,) and all his other goods. The bill of sale was absolute in its terms. Only nominal possession was taken at the time, viz. by Mercer delivering a corkscrew to the defendant in the name of the whole of the goods. At the time of the assignment the defendant stipulated verbally that he should be allowed, at the end of fourteen days from the execution of the bill of sale, to take possession and sell the goods, if the debt remained unpaid. Mercer died on the 7th of April, 1786, and defendant took possession on the following day, being within the fourteen days. The plaintiff, one of the creditors of Mercer, sued the defendant for a debt due from Mercer; treating the defendant as executor de son tort, in having taken possession of and sold the goods. And the Court held, that the bill of sale was void, because it was not accompanied with possession at the time of its execution, and consequently that the action was maintainable.

But the assignor's or vendor's continuance in possession, without regard to the transfer, and with the assent of the bargainee, is not conclusive evidence of fraud. It merely affords a presumption of fraud upon creditors, which may be rebutted or explained by the particular circumstances. If, therefore, the omission to deliver possession to the assignee of the goods be in consequence of, and consistent with, the terms of the bill of sale, by which the assignee was not to be entitled to take possession, unless default

(q) 2 T. R. 587. This case has been acted upon in subsequent cases, and was approved of by Mr. Justice Lawrence, in Steel v. Brown, 1 Taunt. 382. But in Steward v. Lombe, 1 B. & B. 511, 512; 4 Moore, 281, S. C., Dallas, C. J., stated that it had often been dissented from; and Parke, J.,

said that doubts had arisen with respect to the extent of the doctrine there laid down; see the cases, &c., Tidd, 9th ed. 1004. The facts of the case of Edwards v. Harben certainly seem to negative any actual intention to defraud or delay creditors. See post, 413.