at the present day would be differently decided.

If a bankrupt give a preference to a creditor from fear of his resorting to legal process for the recovery of his debt, it will be valid, and it makes no difference that the apprehension is groundless (m).

Goods had been purchased by a trader to a large amount, for another, and placed in the Custom-house in the name of the trader; and he had deposited a bill of exchange with his employer as a security, which bill proving a forgery, the employer insisted that the property should be immediately transferred to him, which was done. Two days afterwards an act of bankruptcy was committed by the trader; this was ruled by Lord Ellenborough not to be a voluntary preference (n). And where a trader, in contemplation of bankruptcy, and without solicitation, put three cheques into the hands of his clerk, to be delivered at a creditor's counting-house, which was done accordingly, but, before the delivery of the cheques, the creditor called upon the trader and demanded payment of his debt; Lord Ellenborough held that the intention to give a voluntary preference not being consummated, this was a valid payment (o). And where a creditor, knowing his debtor to be in distressed circumstances, and not able to pay the debt, applied to him in the first instance, about two months before his bankruptcy, for a security, and took part of his stock

(m) Thompson v. Freeman, 1 T. R. 155.

(n) De Tastet v. Carroll,

1 Stark. 88.

(o) Bayley v. Ballard, 1 Campb. 416.

in trade for the purpose of securing the debt, it was held not to be an undue preference, though the creditor did not threaten to sue the trader in case of a refusal to pay. Lord Kenyon, in giving judgment, observed that the bankrupt had sworn to the honesty of the transaction, and that he did not meditate a bankruptcy at the time; and that the jury by their verdict had negatived the idea of collusion (p). But where the acceptor of a bill of exchange, two days before the time when the bill became due, called upon the drawer, and informed him privately that he was insolvent, and the drawer insisted on being paid the amount of the bill, offering at the same time to become security to the creditors for so much as the estate should produce, if they agreed to a composition, on which the acceptor paid the bill, and became a bankrupt four days afterwards; and it appeared at the trial of an action subsequently brought by the assignees of the acceptor against the drawer for money had and received, that the date of the bill had been altered so as to make it fall due before this transaction, but it did not appear that the alteration was made with the drawer's knowledge, the Court of Common Pleas held that this was a sufficient proof of a fraudulent preference to defeat the payment of the bill; and the case was distinguished from that last cited, because there the creditor came to the debtor, and the security was taken for a debt at that time actually due (9). And where a trader, being pressed by creditors for payment or security, one or other of which they said they were determined, to have, gave

(p) Smith v. Payne, 6 T. R. 152.

(q) Singleton v. Butler, 2 Bos. and Pul. 283.

lent preference, Lord Ellenborough observing, that "taking the conversation between the creditors and the bankrupt to be a threat of process if they did not receive payment or security for their demand, he did not see how the execution of such a threat could put the bankrupt in a worse situation than the actual transfer of the goods did; for that left him without any property, and he was immediately obliged to break up business, and leave home. This would rather show that he did not make the transfer by dint of the threat, for he did not redeem himself even from any present difficulty by doing the act, which is the motive of such an act when really done under the pressure of a threat" (r). But if a debtor, at the desire of his creditor, give goods out of his shop, in part-payment of a bond not then due, and soon afterwards become a bankrupt, the mere circumstance of the bond not being due will not vitiate the payment on the ground of fraudulent preference (s). Whether any particular transaction has taken place in contemplation of bankruptcy is a question for the jury to decide; and it is not enough that the act has the effect of contravening the bankrupt-laws; it must be done with intent to contravene them, and in contemplation of bankruptcy, otherwise the transaction will not be invalidated (t).

(r) Thornton v. Hargreaves, 7 East, 544.

(s) Hartshorn v. Slodden, 2 Bos. and Pul. 582; and see

Crosby v. Crouch, 11 East, 256, accord. 2 Camp. 166, S. C.

(t) Fidgeon v. v. Sharpe, 5 Taunt. 539; Dixon v. Baldwen, 5 East, 175.

1

A person who resides and trades in India, and is at the same time a trader in England, making, during his residence in India, an assignment of all his property, in trust for all his creditors, according to several proportions agreed upon between the parties, afterwards comes to England, and commits an act of bankruptcy here; the transaction in India being done fairly and honestly will not be invalidated the subsequent bankruptcy here (u).

If an act of bankruptcy be committed by one of two partners, and a commission of bankrupt issue against him, and the other partner afterwards deliver goods of the joint property to a creditor in satisfaction of debts antecedently due to him from the partnership, and then die, the creditor will become tenant in common with the assignees of the bankrupt partner (x).

Where a trader, having been arrested, executes, either to the creditor who arrests him, or to another creditor who becomes bail for him, a bill of sale of all his stock in trade and effects, to pay his debt to the creditor, and the overplus to be paid over to himself, it is an act of bankruptcy; and the stock in trade and effects will vest in the assignees of the bankrupt (y).

(u) Ingliss v. Grant, 5 T. R.

530.

(x) Smith v. Oriell, 1 East, 368.

(y) Butcher v. Easto, Dougl. 295; Newton v. Chantler, 7 East, 138.

Of Sales and Purchases by Agents, Brokers and Factors.

IT frequently happens that contracts of sale are entered into by the intervention of third persons, who act as agents for one or both of the parties. When such agents act within the scope of the authority committed to them, their principals are equally bound by the acts of the agents as by their own. The legal maxim, qui facit per alium facit per se, is applicable to this case. There are however many cases in which it is a matter of some doubt whether the acts of the agent will bind the principal. This chapter will be chiefly devoted to the object of ascertaining the law of principal and agent in contracts of sale, as far as third persons are concerned. The particular duties and rights of principals and agents, with respect to each other, are not within the scope of this treatise (a).

The agents usually employed in mercantile transactions are either factors, who are intrusted with the possession as well as the disposal of commodities, or brokers, who are merely employed in making contracts relative to goods, but have not the possession of them.

No particular mode of appointing an agent for the

(a) See the general law relative to principal and agent, fully and clearly stated in Mr. Paley's valuable treatise on the subject.