1831.

PARKER

ย.

BOOTH.

sheriff for not returning the said writ of fi. fa. be stayed until the further order of this Court."

In a similar case in K. B. the rule had been drawn up in the same terms.

In another case of the same description in this Court, Northcote v. Beauchamp and Others, the Court refused the assignee his costs of the rule; and with respect to the sheriff's costs, which were claimed, took time to confer with the Court of K. B.

Nov. 23.

Plaintiff re mitted to Defendant the price of some hay he had sold for De

fendant, before the money had been paid by

the purchaser, and then sent Defendant's servant with

GINGELL V. GLASCOCK.

THE Plaintiff, a hay salesman, sold for the Defendant a load of hay, to a person named Sumner, and remitted 47. 16s., the price of the hay, to Defendant, before Sumner paid the money In the mean time the servant, whom the Defendant sent up to London with the hay, being charged by the Plaintiff to deliver it to the purchaser, was imposed upon by some cheat who person

ated Sumner, and in that way got possession of the hay, and had not since been discovered. Sumner, not having the hay to the received the hay, could not be prevailed on to pay, and the Defendant refused to return the money which he had received from the Plaintiff, who accordingly brought an action; but by consent the case was submitted to an arbitrator, who awarded for the Plaintiff.

purchaser.

The servant having been cheated of the hay before he

arrived at the purchaser's: Held, the De

fendant was liable to refund the money remitted.

Jones Serjt. now moved for a rule to shew cause why the award should not be set aside. He argued, that the man who delivered the hay to the wrong person, was not then acting as the servant of the Defendant, who had sent him only to the market, but as the servant of the Plaintiff, who had employed him to carry the hay to Sumner; and that the Plaintiff was responsible for the

hay,

hay, or the price of it, from the moment when it was taken out of the market by his direction.

The Court was of opinion that the arbitrator had decided rightly; that the servant who made the mistake was, at the time, acting as the servant of the Defendant; and, accordingly, the award was confirmed.

Rule refused.

1831.

GINGELL

ບ.

GLASCOCK.

ARNELL the Younger v. BEAN and Another.

TRESPASS and assault.

Nov. 25.

A., being dis

rent arrear,

Pleas, son assault demesne, and that the Plaintiff trained on for was wrongfully and unlawfully, and without leave or applied to Delicence, in a certain dwelling-house, farmstead, and closes, belonging to Defendant Bean and one W. Park, and because he refused to go out upon request, the Defendant Bean and his servant gently laid their hands upon him to prevent his continuing there.

Replication, de injuriâ, and issue thereon.

At the trial before Vaughan B., last York assizes, it appeared that the Plaintiff's father, who occupied a farm, was, on the 6th of April last, about to be distrained on by his landlord for 70%., when he applied to the Defendant Bean and W. Park to relieve him from his difficulties.

As he already owed Bean and Park nearly 6007. on a warrant of attorney and promissory notes, they refused to make any further advance without security; whereupon the Plaintiff's father, by deed, reciting his debts, and that Bean had further paid 70%., assigned to them all his personal estate, growing crops and effects, in trust by sale or otherwise to pay themselves, and the surplus,

G 4

fendant, to whom he was already indebted, to ad

vance him money; Defendant refused to do so unless upon security; whereupon A. assigned to

him all his

personal estate and effects in trust to pay Defendant and

other creditors: Held, not a voluntary conveyance within 7 G. 4.

C. 57. 5. 32.

1831.

ARNELL

V.

BEAN.

surplus, if any, to various other creditors. Bean then paid the 70l. to the landlord, and took possession of the premises. About a fortnight afterwards, suspecting the conduct of their debtor, Bean and Park sold the property by auction, with the exception of the growing crops, of which they retained possession, when the Plaintiff's father went to prison at the suit of an alleged creditor, petitioned to be discharged under the insolvent debtors act, and assigned all his estate and effects in the usual way to the provisional assignee. Bean and Park opposed the insolvent's discharge, and his son, the Plaintiff, refused to quit the farm, alleging that he had authority to remain from the provisional assignee. The Defendants insisting on his departure, the assault complained of took place.

On the part of the Plaintiff it was contended, that the conveyance by his father to Bean and Park was void under 7 G. 4. c. 57. s. 32., which enacts, "That if any prisoner who shall file his or her petition for his or her discharge under this act, shall, before or after his or her imprisonment, being in insolvent circumstances, voluntarily convey, assign, transfer, charge, deliver, or make over any estate, real or personal, security for money, bond, bill, note, money, property, goods, or effects whatsoever, to any creditor or creditors, or to any person or persons in trust for, or to or for the use, benefit, or advantage of any creditor or creditors, every such conveyance, assignment, transfer, charge, delivery, and making over, shall be deemed, and is hereby declared to be, fraudulent and void as against the provisional or other assignee or assignees of such prisoner appointed under this act; provided always, that no such conveyance, assignment, transfer, charge, delivery, or making over, shall be so deemed fraudulent and void, unless made within three months before the commencement of such imprisonment, or with the view or intention

intention by the party so conveying, transferring, charging, delivering, or making over, of petitioning the said Court for his or her discharge from custody under this act."

A verdict was found for the Plaintiff, damages 1s., with leave for the Defendants to move to set it aside and enter a nonsuit instead.

Wilde Serjt. having obtained a rule nisi to that effect,

Cross and Adams Serjts., who shewed cause, contended that the deed was voluntary within s. 32.; void, as being a conveyance to parties who were already his creditors; and false and fraudulent in the recital that Park had joined in advancing the 70%., which, according to the evidence, was paid by Bean only. If the Plaintiff's father had been a trader, the conveyance would have amounted to an act of bankruptcy; and if it could be supported in the present instance, a mode was pointed out by which the operation of the insolvent debtors act might be successfully eluded.

Wilde. A voluntary deed within the meaning of s. 32. 7 G. 4., is a deed executed without any present and pressing consideration; a deed purely spontaneous. A debt, however, is a good present consideration; and here, in addition to the debt, the deed was executed upon the emergency of a distress which the landlord was in a condition to enforce, and from which the tenant was relieved by the advance of 70l. at his urgent entreaty, the advance being refused unless the deed were executed. Bean and Park, therefore, were not volunteers, but purchasers. Even if it were true that Park contributed nothing towards the 70l., in Morgan v. Horseman (a) it was held that a deed, whereby a debtor, being pressed,

(a) 3 Taunt. 241.

1831.

ARNELL

- v.

BEAN.

con

1831.

ARNELL

V.

BEAN.

conveyed estates in trust to sell and pay the pressing creditor, with a further trust to pay debts to certain relations, in order to give them an undue preference in contemplation of bankruptcy, was valid so far as related to the protection of the urgent creditor. Under the bankrupt laws it has always been holden, that a conveyance or payment made upon pressure by a creditor, is not voluntary. (a)

Cur, adv. vult.

TINDAL C. J. The question reserved by the learned Judge who tried this cause, was, whether the assignment made by Arnell the elder, to Bean and Park, bearing date the 6th of April 1831, was a voluntary assignment, within the meaning of the thirty-second section of the insolvent act, the 7 G. 4. c. 57. By that section it is enacted, that if any prisoner who shall file his petition for his discharge under that act, shall, before or after his imprisonment, being in insolvent circumstances, voluntarily assign any real or personal property, goods, or effects whatsoever, to or in trust for any creditor, every such assignment shall be deemed, and is hereby declared to be, fraudulent and void as against the provisional or other assignee appointed under the

act.

Now the word "voluntary " in that section must have some proper meaning of its own, distinguishable from that of fraudulent; in the first place, because there could be no occasion to make an enactment that a fraudulent deed should be void, which the common law would have itself declared it to be; and, in the next place, because this very section declares that assignments voluntarily made under the circumstances therein

(a) See Crosby v. Crouch, 11 East, 256. Thompson v. Freeman, 1 T. R. 155. Hartsborn v. Slodden, 2 B. & P. 584.

Hunt v. Mortimer, 10 B. & C.44. Vacher v. Cocks, 1 B. & Adol. 145.

mentioned,