SAINSBURY objected for the defendant, that there was a variance between the MATTHEWS, declaration and the evidence, inasmuch as the former stated the [ *345 ] contract to be that the potatoes were to be delivered within a reasonable time, and to be paid for on delivery. The plaintiff's counsel applied to the learned Judge to amend the declaration so as to make it conformable to the contract proved, and he directed an amendment accordingly. The declaration having been amended, the parts included within brackets then stood as follows: [346] (a certain large quantity of potatoes, then planted and being in certain land of the defendant, at the price of 2s. per sack, the same to be dug by the plaintiff at the usual time for digging the same, and to be paid for by the plaintiff to the defendant at the said last-mentioned time.) (to receive, take, and dig the said potatoes, and to pay for the same at the said rate and price, and at the time last aforesaid, of all which the defendant always had notice, and heretofore, and after the making of the said agreement and promises, and before the commencement of this suit, to wit, on the 30th day of October, 1836, the same being the usual time for digging the said potatoes, the defendant was required by the plaintiff to permit and suffer him to dig and take the said potatoes; yet the defendant, not regarding &c., did not, nor would then, nor at any time since permit and suffer the plaintiff to dig and take the said potatoes, or any part thereof, but on the contrary thereof, wholly refused so to do (the same land being then in the possession of the defendant), whereby &c.) The jury having found for the plaintiff on both issues, damages 51. 108., Crowder now moved, pursuant to leave reserved by the learned Judge, to enter a nonsuit, on the ground that this was the sale of an interest in land, within the 4th section of the Statute of Frauds, and therefore required a note or memorandum in writing; or for a new trial, on the ground that the amendment ought not to have been made. First, this was a contract for the sale of an interest in land. The potatoes were not in such a shape, at the time of the contract, as that they could be transferred as chattels; they were to be taken up when ripe by the vendee; and he must necessarily have the benefit of the land for the three intervening months. (PARKE, B.: He was not to have them until he dug them up. Suppose a tempest had destroyed them in the mean time, whose would the loss have been? It is only a contract to sell at a future SAINSBURY day so many sacks of potatoes, the produce of certain land.) In Parker v. Staniland (1), a similar contract for the sale of growing potatoes, at so much a sack, was held not to be a sale of an interest in land, on the express ground that they were to be taken up by the defendant immediately, and it was therefore quite accidental if they derived any further advantage from being in the land. Evans v. Roberts (2) is distinguished by the circumstance that there the potatoes were to be raised by the vendor for the vendee. The distinction taken in that case between crops which would be emblements, and the ordinary annual produce of land, appears hardly to be maintainable. In Earl of Falmouth v. Thomas (3), it was held that a contract to let with a farm certain growing crops upon it, at a valuation, was a contract for the sale of an interest in land. In Carrington v. Roots (4), the same was held with respect to a contract for the sale of a growing crop of grass, with liberty to the buyer to go upon the land to cut and carry it away. Secondly, this amendment ought not to have been made. It introduced on the record an entirely different contract, and one which the defendant has never had an opportunity of answering. LORD ABINGER, C. B.: The power of amendment given by the statute vests a wide discretion in the Judge; if he exercises it to the best of his information at the time, and *does not plainly appear to have been wrong, the Court will not interfere. Here no affidavit is produced to show that the defendant has been prejudiced by the amendment. As to the first point, I think this was not a contract giving an interest in the land: it is only a contract to sell potatoes at so much a sack on a future day, to be taken up at the expense of the vendee. He must give notice to the defendant for that purpose, and cannot come upon the land when he pleases. PARKE, B.: This is a contract for the sale of goods and chattels at a future day, the produce of certain land, and to be taken away at a certain time. It gives no right to the land: if a tempest had destroyed the crop in the meantime, and there had been none to deliver, the loss would clearly have fallen upon the defendant. The case is stronger ተ. MATTHEWS. [ *347] (1) 10 R. R. 521 (11 East, 362). (2) 29 R. R. 421 (5 B. & C. 829). (3) 38 R. R. 584 (1 Cr. & M. 89). than that of Evans v. Roberts, because here there is only a stipulation to pay so much per sack for the potatoes when delivered: it is only a contract for goods to be sold and delivered. In that case all the authorities were reviewed, and the result of them clearly laid down. As to the amendment, I quite concur in the propriety of it. Unless the Judges are very liberal in the allowance of amendments, the rule which binds a plaintiff to one count will operate very harshly. GURNEY, B., concurred. Rule refused. MOGG AND ANOTHER, ASSIGNEES OF PURNELL, AN INSOLVENT DEBTOR, v. BAKER. (4 Meeson & Welsby, 348-350; S. C. 1 H. & H. 461; 8 L. J. (N. S.) Ex. 55; 2 Jur. 1068.) Where a conveyance or transfer of goods is made by a party in insolvent circumstances to a creditor, in pursuance of a bonâ fide demand by the creditor, it is not voluntary within the meaning of the 7 Geo. IV. c. 57, s. 32(1); it is not necessary, in order to support it, that there should have been pressure on the part of the creditor, or an apprehension on the part of the insolvent that by not making it he should be in a worse condition. THE reference recommended by the COURT in this case (2) not having been assented to by the parties, the cause was tried again before Parke, B., at the last Bristol Assizes, when it appeared, that in the assignment by the insolvent Purnell to the defendant was included not only the furniture, of the value of 1701., in respect of which an agreement was made between the insolvent and the defendant in 1835, but also other furniture, subsequently purchased by the insolvent, (partly with money lent him by the defendant), of the value of 351., and which, it was admitted, was not included in the original agreement. With respect to this latter amount, therefore, the only question was, whether the assignment was a voluntary conveyance or transfer of these goods, within the meaning of the 32nd section of the Insolvent Debtors' Act, 7 Geo. IV. c. 57. The examination of the defendant, on the hearing of Purnell in the Insolvent Debtors' Court, was put in, in which the defendant stated that Purnell " offered him security spontaneously." The learned Judge, in summing up, directed the jury, with (1) Since repealed. But the case belongs to the series of authorities as to fraudulent preference in bankruptcy. -R. C. (2) See 3 M. & W. 198. reference to the furniture included in the agreement, in conformity Crowder now moved for a new trial, on the ground of mis- It is submitted that the test applied by *the learned Judge is too narrow a one, and that something more must be shown, in order to establish that a transfer is not voluntary within the statute, than a creditor's merely asking the debtor for a security. All the authorities lay it down that there must be something in the nature of importunity or pressure. The case depends on the same principles, in this respect, as those which determine whether a preference is voluntary within the Bankrupt Act: the question is, whether an intention is shown that one creditor shall be preferred to the general body. In Cook v. Rogers (1), it was held to be a proper test to be submitted to the jury, to consider what was passing in the bankrupt's mind at the time of the alleged voluntary payment, and the motives by which he was probably influenced. TINDAL, Ch. J., says: "I am not able to perceive any mode of ascertaining whether the payment and the delivery of the bill in this case were such as the law protects, or such as the law avoids, but by putting it to the jury to say, whether the payment were made in contemplation of bankruptcy, and under fear of compulsion, or voluntarily." So here, the jury should have been asked whether there was pressure, or fear of compulsion. In Arnell v. Bean (2), again, it appears to be assumed that some kind of pressure-something beyond a mere request-must be proved. It ought to appear that the bankrupt or insolvent is under an apprehension that he will be in a worse condition if he abstains. from doing the act: if he is perfectly ready to do it when asked, it is voluntary. It is not necessary that there should be a fraud whereby he should himself benefit; it is a fraud on the general body of the creditors, if the act, whereby one creditor obtains an advantage, is done of his own free will. (1) 7 Bing. 438. R.R.-VOL. LI. (2) 8 Bing. 87; 1 Moore & Scott, 151. 40 SAINSBURY (PARKE, B.. referred to Doe v. Gillett (1).) In Reynard v. Robinson (2), *the payment was held not to be voluntary, on the ground that it was made in consequence of a threat of legal proceedings. (LORD ABINGER, C. B.: Because, in the particular case, there was something beyond a mere demand, which is noticed in the judgment, does it therefore follow that a threat was necessary? The current of authorities is the other way, and the constant practice at Nisi Prius has been, that a demand by the creditor is sufficient.) If the law be so broadly laid down, it may open a door to the grossest frauds. (He moved also on the ground that the verdict against the evidence.) was LORD ABINGER, C. B. : I am of opinion that the verdict was right, and the direction right. There is a fact in the case which seems to have escaped Mr. Crowder's attention, which is, that Purnell said he executed the bill of sale, because he apprehended, if he did not, Baker would put in a distress. I do not however think this was necessary; and I should be sorry to have it understood I thought it essential. I think, if a demand is made by a creditor bonâ fide, and a transfer takes place in pursuance of that demand, that takes it out of the case of voluntary transfer contemplated by the Insolvent Act. Therefore I think the direction of the learned Judge was right, and the verdict of the jury right, and that there is no ground for granting the rule. PARKE, B.: I certainly laid down the law to the jury as I understood it long ago settled to be; as to the verdict, I might have concurred in it either way; if the jury had found their verdict the other way, I should have been satisfied,-but I cannot say it was wrong. GURNEY, B.: I quite concur that the direction of the learned Judge was i correct, and I also think the verdict was right. (1) 2 Cr. M. & R. 579. Rule refused. (2) 9 Bing. 717; 3 Moore & Scott, 127. |