billon v hide November relief in account as to payment make to a bankrupt  after a secret act of bankruptcy but see now sir S Romillys act Geo ch when  the assignee have recover by action payment make by the bankrupt John Francis  Mitchel a Italian merchant become bankrupt April have great deal a  considerable time before but the act of bankruptcy then commit be a secret act  very little know as it be admit he after appear upon change and other public  place and in all vesey senior respect without suspicion of be a bankrupt or in  insolvent circumstance there be large deal between the plaintiff and he and a  account commence November and these deal continue after the act of bankruptcy  till the June follow and be very various but they appear to be fair principal  consist in remittance and negotiate bill of exchange to Italy or other part of  the world and several sum be pay by the plaintiff to he during the space of  time between April and June some to he other to his order some by way of loan  and particular by some item pay by the plaintiff for premium on insurance upon  ship for his benefit and other for good at the customhouse but the sum of  money pay by he to the plaintiff amount to pound S d bill of exchange draw by  the plaintiff after the commission of bankruptcy issue and assignment be make  the assignee see this transaction and that these sum be pay after the act of  bankruptcy be commit bring a action of indebitatus assumpsit in b r against  the plaintiff for these several sum as for money have and receive to the use  of the assignee it be try on non assumpsit and it appear these sum be pay  after the act of bankruptcy be commit the assignment by relation overcharge it  and avoid mesne act so that they recover in that action the plaintiff here  insist that notwithstanding that recovery by the strict rule of law still a  allowance ought to be make he for that be pay to Mitchel on the other side of  the account fall within the same period of time amount to pound that this be  not do then and be refuse by the commissioner since the bill therefore be to  have this sum deduct out of the pound S d the assignee insist he be not  entitle thereto that that be quite a distinct thing consist partly in loan  partly of money advance for other purpose the assignee have recover by their  own strength then why shall the plaintiff recover be distinct person and in  distinct right and the bankrupt can not contract any debt to charge his estate  or to charge the assignee after the act of bankruptcy commit and upon that  reason it be overrule at the trial see particular supplement p Lord chancellor  say that decision of court of law in such case have be so strict that it may  be pretty difficult to come at the relief seek and yet he fear if the  plaintiff have not some relief it will be attend with great injustice and if  he can vesey senior find a ground to relieve the plaintiff he will but for  that it must have equitable circumstance therefore he will consider of it and  now deliver his opinion two question arise first whether the plaintiff be  entitle and have a right to have this allowance and deduction make Thesecond  suppose it so whether he have pursue a proper remedy or whether this matter be  not so conclude by the judgement and verdict at law that the hand of this  court be tie up and therefore the plaintiff not entitle to relief if the law  will not relieve as to the first I be of opinion the plaintiff have a right to  it but that will depend on the nature of the demand at law of the defendant  and assignee under the commission and the nature of the remedy they have  pursue for it as to the nature of the demand at law against the plaintiff for  this money pay by Mitchel for valuable consideration without fraud after the  act of bankruptcy commit it be to draw tight law and the hard case the law of  England admit depend on the relation by the act of bankruptcy all the real and  personal estate vest in the assignee and the property vest in they from the  time of the act commit and that may go back to a great length of time and it  overcharge all those act without regard to the fairness or fraud in they so  that a sale of good by the bankrupt after the act commit be a sale of their  property for which they may maintain trover so it be as to the payment of  money and this be the intent of the act of parliament he statute c sect be  that this shall not extend vesey senior er p to the prejudice of any debtor of  the bankrupt who pay his debt after the act commit without know of it this  relation the assignment have do not only overcharge act do in pais and  contract enter into by such person have commit a act of bankruptcy but also  act on record and legal act do by he such as judgement so that if execution be  take out after the act commit upon a judgement before that execution be undo  and set aside it be say that this rule find on this act of parliament be  contrary to the general reason of the law which say that fiction of law and  legal relation shall not enure to the wrong of any one which be a general rule  invent to support the right and equity of the case but the reason of take this  case out of that rule be plain this and the law do intend it on this general  rule that it be better to suffer a particular mischief than a inconvenience  and the legislature foresee there will be a particular mischief which they  cure by that proviso but do not extend it far because the inconvenience on the  other hand of suffer bankrupt to dispose of their effect by contract or  judgement will put it in their power to defeat their just creditor of their  debt so as it will vesey senior be difficult to find out whether there be a  mixture of fraud the legislature think it better to lie down that general rule  but trade become more extensive that act g be make and notwithstanding it be  say this case be not within that act which it certain be not in point of time  yet it be direct within the recital thereof one principal case provide for by  that act be the negotiate bill of exchange which be a case very necessary to  be provide for because negotiate in various part of the world therefore though  this be not a case within the provision of the act because of the posterior  time of commencement yet it be within the mischief and therefore court of  equity ought to go as far as be consistent with the opinion of the legislature  of the mischief above mention in what shape this be insist on at the trial do  not appear whether offer only in mitigation of damage and then it be very  natural for the court not to admit it and the court may have think that at the  meeting of the creditor they will have agree on this have power to compound  the debt b agreement of the major part of the creditor by the new act of  parliament but however that be the next question be whether the plaintiff be  entitle to have this allowance in some shape on the foot of the deal  themselves and next from the nature of the action bring by the assignee and I  be of opinion he be entitle from the nature of the action and demand against  he at law it be quite new to I that assignee under a commission of bankruptcy  shall maintain a Indebitatus assumpsit which be a action find on contract for  money good fide pay by the bankrupt after a secret act of bankruptcy to  another person for valuable consideration how long that be in practice I know  not I think they be oblige to bring a action of trespass or trover for the  tort otherwise they will be nonsuit of which opinion be chief justice Parker  and Lord Raymond and for that purpose have a manuscript case at guildhall the  sit after t t g I it be a assumpsit by a administrator for money have and  receive c and non assumpsit plead the case be the defendant be nurse to the  intestate during his sickness and be alone in the house when he die convey  away money and every thing portable the defendant object the action will not  lie there be no colour of contract but a wrongful take or conversion for which  trover lie but Parker c I hold the action maintainable because though the take  be wrongful yet the plaintiff may agree afterward and make it right and the  bring this action be a imply agreement and that there be only two case wherein  a action for money have and receive c can not be bring videlicet for money win  at play and money pay after a bankruptcy in both case unless you insist on the  tort the tort be wave he go upon this that vesey senior you can affirm part  and disaffirm part so that the plaintiff there may bring trover or trespass  for the tort or a action for money have c which the court lie down clear and  without doubt admit two case in which that action can not be bring for  wrongful take in the case of money win at play the action must be on the tort  not for money have c that admit the contract at play so I have rule at  guildhall and believe nonsuit a plaintiff when he have go contrary the judge  perhaps have go further since and admit such action rather than put the party  to trover and this action for money c have be extend to advance the remedy if  the party yet court have go a good way against this very strict construction  of the act of parliament and where trover be bring have take it out of the act  for which purpose be the case of rider v foul lev vesey senior er p which be  direct within the word of the statute and within that legal relation but the  court will not construe it within it and the action that be bring for the  money be trover but whether trover be the proper action be not the point now  for consideration the judge who try the cause the question now be upon the  insist on it by way of contract have the strict remedy be it may be a strong  case against the allowance there be assumpsit which must be find on contract  either in fact or in law and there be no contract in fact for a contract must  be with somebody here the law have determine against the contract by the  relation from the interventing of the bankruptcy it be say that the bankrupt  must be consider as a trustee but hardly so because in the notion of this  court a trustee must have the legal estate for somebody but why shall he not  be consider as factor or agent for the assignee and if assignee will go in  this method and affirm act do by the bankrupt it be right and just to take the  bankrupt to be their factor or agent as to all act fair do though not so as to  bind they by fraudulent act and it must be so take for this action upon  contract can be maintain but by contract on one side or other it be very hard  to sa you assignee in this new method of proceed by indebitatus assumpsit  shall be allow to affirm act of bankruptcy in part and disaffirm in other part  which have be refuse by court of law fir which there be a material case in b r  Wilson v bolter hill g where trover for money be bring by a assignee not  guilty plead it be try by Lord Raymond at guildhall who doubt make a case of  it videlicet bolter in may become bankrupt in August follow a commission issue  against he under which the plaintiff be assignee in the June between the  bankruptcy and commission the bankrupt wife deliver money to the defendant to  buy south sea and east India bind the defendant then know of the bankruptcy  and that the money be part of the bankrupt effect buy thirty bind and deliver  they to the wife in September the plaintiff the assignee vesey senior seize  twentytwo of these bind and take they for the benefit of the creditor as part  of the bankrupt estate and bring trover for the money lie out in there remain  eight bind the question be whether the defendant be liable in this action for  the money and the eyehole court be clear that the assignee seize part of the  bind be a affirmance of the defendant act in lie out the money and that part  can not be affirm and the other part disaffirmed and this be in some measure  allow the act of the bankrupt on the foot of the contract and yet disallow it  on the other side this be a strong case why the plaintiff in this cause shall  have a proper allowance but it be say this allowance shall have be make at law  and that it be determine at law that he shall not have it which be conclusive  but I be of opinion it be not conclusive for as the assignee proceed on the  foundation of the contract this be a matter of account and therefore though  not allow at law this court have jurisdiction of account take they  notwithstanding the verdict so will the court here allow to the plaintiff so  much as he ought to be allow which bring it to the question how much he ought  to be allow and as so great a sum as pound be recover from he it be very hard  for the assignee to insist that any part of this pound shall not be allow as  to the equity of the case I be very clear in my opinion but I own I have  difficulty as to the particular sum to be allow the plaintiff have examine  witness who have swear to part and that the most considerable part as lend go  on and say so much lend and so much pay but this be very nice and if by  inquiry or other method I can come at it I will therefore let the cause stand  over and I will recommend it to the assignee to compound in some manner for it  be very hard against the plaintiff ft be afterward compound Reg lib a foe  enter billon v Hanbury note though the actual determination be by consent it  seem to have be find on the opinion of the court see supplement p by statute  James cap sec purchaser for valuable consideration shall not be prejudice  unless the commission be sue out within five year after the bankruptcy and by  Geo cap sec payment make by bankrupt in the course of trade without know of if  shall not be affect black vide vern where a award be make in a adversary vesey  senior er p suit and confirm by the court one of the party be a bankrupt but  not know then to be so and a commission afterward take out the award bind the  assignee under the commission there be no fraud or collusion in obtain it but  the reporter put a qucere if the decree on a rehear be not reverse it be  reverse in the house of lord after a affirmance on a rehear see the note in Mr  Raithbys edition this action have be much extend of late as a useful remedy  the same principle which support it against one receive money from the  bankrupt himself will support against another who receive it under the  bankrupt in both case it be the property of the assignee who may elect to  bring a action of tort or assumpsit but not both black will lev holt Mod