good and sufficient consideration; as we shall see under our next division. and without fraud. (Flyn v. Matthews, 1 Atk. 187; ex parte Marrable, 1 Glyn & Jameson, 403.) However, in the case last put, it is necessary that the change of property should be notorious, so that third persons, who use reasonable caution, cannot be deceived. (Knowles v.Horsefall, 5 Barn. & Ald. 140; Lingard v. Messiter, 1 Barn. & Cress. 313; S. C. 2 D. & R. 498.) And it has been repeatedly held, that, if goods seized under an execution are bona fide sold, should the buyer suffer the debtor to continue in possession of the goods, they will, nevertheless, be protected against subsequent executions, if the circumstances under which he has the possession are known in the neighbourhood. (Latimer v. Batson, 4 Barn. & Cress. 654; S. C. 7 D. & R. 110; Muller v. Moss, 1 Mau. & Sel. 338; Leonard v. Baker, Ibid. 253; Watkins v. Birch, 4 Taunt. 824; Kidd v. Rawlinson, 2 Bos. & Pull. 60.) Still, it is a general rule, that a secret owner shall not be allowed to reclaim property which he has left in the visible possession of another, up to the period of his bankruptcy, thereby enabling him to obtain fictitious credit; but, by virtue of the bankrupt act, such property shall vest in the bankrupt's assignees. (Mace v. Cadell, Cowp. 232; ex parte Dale, Buck, 366.) The possession, however, must continue up to the time of the bankruptcy, to make the statute available to the creditors of the bankrupt's estate: if withdrawn, bond fide, by the owner at any time, however short, before the bankruptcy, the property cannot be recovered by the assignees. (Ex parte Smith, 3 Mad. 66.) But, a removal of property, by the right owner, out of the hands of a person in whose visible possession it has been left, will be held fraudulent, if such removal appears to have been made in contemplation of, though previous to, the bankruptcy of the person who has been enabled to obtain credit by means of such possession. Such a case would be within the spirit of the act, and the property would vest in the bankrupt's assignees. (Ex parte Smith, Buck, 152; Darby v. Smith, 8 T. R. 85.) The statute only applies to property, which has been left in the possession of another by the consent of the person who has the legal power of dealing with the property. (Ex parte Richardson, Buck, 488; ex parte Dale, Buck, 366.) And the court of King's Bench (in Taylor v. Plumer, 3 Mau. & Sel. 574,) held that, an abuse of trust can confer no rights on the party abusing it, nor on his assignees, or others claiming in privity with him. (See Gladstone v. Hadwin, 1 Mau. & Sel. 526; Scott v. Surman, Willes, 402.); However, in the subsequent case Ex parte Dale, (Buck, 366,) it was determined that, if a trustee, even for infants, part with possession of a chattel interest without receiving payment for the same, he retains no lien thereon should the alienee become bankrupt; but the property must be distributed amongst the general creditors of the party in whose visible possession it was at the time of the bankruptcy, with the consent of the person who had the legal power of dealing with the property. The distinction is this: if trust property (clearly distinguishable, Whitecomb v. Jacob, 1 Salk. 160,) remain in the possession: of the trustee at the time of his bank.. ruptcy, his assignees cannot make title thereto; but if the trustee, though in breach of his trust, have parted with the possession to one who subsequently becomes bankrupt, the which is an IX. A contract, which usually conveys an interest merely IX. By contract, in action, is thus defined: "an agreement upon sufficient agreement upon case, as it is within all the mischief which the statute was designed to prevent, so it is within the remedial scope and spirit of the act; and the disposition of the property must follow the visible possession. Not only chattels, but debts, securities, and similar choses en action, are within the statute; for these might equally be made the means of obtaining fictitious credit; and as delivery of chattels personal is necessary to devest a bankrupt of the apparent possession, and disposition thereof; so, with respect to debts, in order to take the case out of the statute, there must be an assignment of the same, with notice to the debtor of such assignment, and a delivery of the security, if any, to the assignee. (Jones v. Gibbons, 9 Ves. 410; Ryall v. Rowles, 1 Ves. sen. 367; Gordon v. East India Company, 7 T. R. 237 ; ex parte Williams, 11 Ves. 7.) And if an obligee assign, and actually deliver over, a bond, before he becomes bankrupt, yet, if notice of the assignment be not given to the obligor, the debt will still be held to have been within the order and disposition of the bankrupt; for he might, notwithstanding his assignment, have received the debt, which if the obligor had paid bond fide, without notice, he could not have been again called upon to discharge. The assignee, by receiving the assignment without informing the obligor of the transaction, might also enable the obligee fraudulently to obtain credit with the obligor; and if any dealings took place between them without notice of the assignment, the obligor would be entitled to set off any balance due to him upon such dealings, if an action were brought on the bond. Ex parte Monro, Buck, 303; ex parte Burton, 1 Glyn & Jameson, 209; ex parte Usborne, Ibid. 360.) But, a distinction must be made as to mortgage securities on land: these consist, partly, of the estate in the land; and an assignment, so far as it conveys that estate, is absolute and complete the moment it is made according to the forms of law; which forms do not require any notice to be given to the mortgagor. And as to the bond or covenant which may accompany the mortgage, it would be difficult to say, the mortgage passes and is well assigned to one person, yet the debt remains in another: by the assignment of the mortgage, the debt necessarily passes as incident to it. (Jones v. Gibbons, 9 Ves. 410, 411.) It has been often decided, that the registry of a vessel is not always conclusive as to the ownership; and that the ship-register acts are not to be so construed as to render inoperative the provisions of the bankrupt code in cases of visible ownership. Notwithstanding a vessel may have been registered in the name of one partner only, yet, if the apparent ownership and disposition thereof were in the whole partnership, it must, under a commission against them, be treated as joint property. (Ex parte Burn, 1 Jac. & Walk. 378; Monkhouse v. Hay, 2 Brod. & Bingh. 114; Mair v. Glennie, 4 Mau. & Sel. 244; Robinson v. Macdonnell, 5 Mau. & Sel. 237.) And it would evidently open a wide door to fraud upon the bankrupt laws, if a person, having registered vessels in the name of another, who becomes bankrupt, were let in to show, that the bankrupt, though in possession as apparent owner, had, in fact, no interest in the ships: it is very clear, no one ought to be heard, in a court of equity, to say that is his property, which he has held out to the world to be another's. (Curtis v. sufficient consi deration, to do or forbear to do thing. "consideration, to do or not to do a particular thing." From some particular which definition there arise three points to be contemplated in all contracts; 1. The agreement: 2. The consideration: and 3. The thing to be done or omitted; or the different species of contracts. 1. The agreement. : First then it is an agreement, a mutual bargain or convention; and therefore there must at least be two contracting parties, of sufficient ability to make a contract: as, where A. contracts with B. to pay him 1007., and thereby transfers a property in such sum to B. Which property is however not in possession, but in action merely, and recoverable by suit at law wherefore it could not be transferred to another person by the strict rules of the ancient common law for no chose in action could be assigned or granted over (d), because it was thought to be a great encouragement to litigiousness, if a man were allowed to make over to a stranger his right of going to law. But this nicety is now disregarded: though, in compliance with the ancient principle, the form of assigning a chose in action is in the nature of a declaration of trust, and an agreement to permit the assignee to make use of the name of the assignor, in order to recover the possession. And, therefore, when in common (d) Co. Litt. 214. Perry, 6 Ves. 747; and see Ex parte to secure; yet, the 43rd section enacts, that, if transfers of ships, or shares thereof, by way of mortgage, ́or assignment, in trust for security of debts, are duly registered, the right of the mortgagee, or assignee for the purpose aforesaid, shall not be in any manner affected by any subsequent act of bankruptcy, committed by the mortgagor or assignor, notwithstanding such mortgagor or assignor, at the time he becomes bankrupt, shall have in his possession, order and disposition, and shall be the reputed owner of, the vessel or share mortgaged or assigned as aforesaid; but that such mortgage or assignment shall take place of, and be preferred to, any claim on the part of the assignees under the bankruptcy of the mortgagor or assignor. acceptation a debt or bond is said to be assigned over, it must still be sued in the original creditor's name; the person to whom it is transferred being rather an attorney than an assignee. But the king is an exception to this general rule, for he might always either grant or receive a chose in action by assignment (e): and our courts of equity, considering that in a commercial country almost all personal property must necessarily lie in contract, will protect the assignment of a chose in action, as much as the law will that of a chose in possession (ƒ). be either ex *This contract or agreement may be either express or im- Contracts may plied (5). Express contracts are where the terms of the press or implied; agreement are openly uttered and avowed at the time of the [*443 ] making, as to deliver an ox, or ten load of timber, or to pay a stated price for certain goods. Implied are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform. As, if I employ a person to do any business for me, or perform any work; the law implies that I undertook, or contracted, to pay him as much as his labour deserves. If I take up wares from a tradesman, without any agreement of price, the law concludes that I contracted to pay their real value (6). And there is also one species of implied contracts, which runs through and is annexed to all other contracts, conditions, and covenants, viz. that if I fail in my part of the agreement, I shall pay the other party such damages as he has sustained by such my neglect or refusal. In short, almost all the rights of personal property (when not in actual possession) do in great measure depend upon contracts, of one kind or other, or at least might be reduced under some of them: which indeed is the method taken by the civil law; it having referred the greatest part of the duties and rights, which it treats of, to the head of obligations ex contractu and quasi ex contractu (g). A contract may also be either executed, as, if A. agrees to change horses with B., and they do it immediately; in which case the possession and the right are transferred to (e) Dyer, 30; Bro. Abr. tit. Chose in Action, 1 & 4. (f) 3 P. Wms. 199. (5) See Vol. III. p. 153. (6) See Hoadley v. Maclaine, 10 Bingh. 487. either executed or executory. 2. The consideration the contract is void. : gether or it may be executory, as, if they agree to change next week; here the right only vests, and their reciprocal property in each other's horse is not in possession but in action; for a contract executed (which differs nothing from a grant) conveys a chose in possession; a contract executory conveys only a chose in action. Having thus shown the general nature of a contract, we without which are, secondly, to proceed to the consideration (7) upon which it is founded; or the reason which moves the contracting [* 444] party to enter into the contract. "It is an agreement, upon sufficient consideration." The civilians hold, that, in all contracts, either express or implied, there must be something given in exchange, something that is mutual or reciprocal (h). This thing, which is the price or motive of the contract, we call the consideration: and it must be a thing lawful in itself, or else the contract is void. A good consideration, we have before seen (i), is that of blood or natural affection between near relations; the satisfaction accruing from which the law esteems an equivalent for whatever benefit may move from one relation to another (j). This consideration may sometimes however be set aside, and the contract become void, when it tends in its consequences to defraud creditors or other third persons of their just rights. But a contract for any valuable consideration, as, for marriage, for money, for work done, or for other reciprocal contracts, can never be impeached at law; and, if it be of a sufficient adequate value, is never set aside in equity: for the person contracted with has then given an equivalent in recompence, and is therefore as much an owner, or a creditor, as any other person. Of the classification of considerations by the civilians. These valuable considerations are divided by the civilians (k) into four species: 1. Do, ut des: as when I give money or goods, on a contract that I shall be repaid money or goods for them again. Of this kind are all loans of money upon bond, or promise of repayment; and all sales of goods, in which there is either an express contract to pay |
