This may be important in the law of bankruptcy, in either of two ways. One refers to the moment when the bankrupt loses his power over his effects, or, in fact, loses his property in them, because they have passed to his assignees. Of course, after this moment a transfer by the bankrupt is wholly void; and it is therefore important to determine what is this point of time.

In England, the lien of the assignees was held to have attached on the commission of the first act of bankruptcy by the bankrupt; and there are strong cases showing that any act of his or of his agent afterwards was void, (a) But though the * rule itself seems to be well settled there, some doubt exists as to its ground. But this was confined to cases of bankruptcy, where the proceeding is in invitum. Whether the reason of the rule would require that in cases of insolvency this point of time should occur at the filing of the petition of the insolvent, or at the first publication of the insolvency, is not certain. For the first conclusion it may be said, that his petition is an act of surrender by the insolvent of all his property, to be dealt with by the law. For the other, that the first construction might operate as a fraud upon the public, that is, upon those who dealt with the insolvent after his petition, in good faith, and in ignorance of it. And certainly some of the English cases have this aspect, (b) But if the moment when the insolvent loses his power over his property is the same with that at which the public is notified of the fact, this objection ceases to apply. And this last is the view which has prevailed in this country in the construction of State insolvent laws, (c) The statute of bankruptcy provides, in section 38, that the filing of a petition for adjudication in bankruptcy, by a debtor in his own behalf or by any creditor against a debtor, upon which an order may be issued by the court, or by a register, shall be taken to be the commencement of proceedings of bankruptcy.

(za) In the matter of Hill, I Benedict, 321. In this case many points of practice are determined. See also In the matter of pulver, 1 Benedict, 381; In the matter of Lowerre, 1 Benedict, 406; In the matter of Orne, 1 Benedict, 420; In the matter of Levy, 1 Benedict, 454.

(a) Kynaston v. Crouch, 14 M. & W. 266. In this case, one Blake, a trader, had committed a secret act of bankruptcy, by leaving his house; but before he left, desired his foreman, the defendant, who had been accustomed to manage his business for him, to carry it on in his absence. The defendant did so, and received for goods sold, and for debts previously due the bankrupt, the sum of .£153 13s.; but of this amount, he made sundry bona fide payments, some to creditors of the bankrupt and some for wages due himself. The moneys were received, and the payments male, without any notice of the act of bankruptcy. The assignees brought this action to recover the £153, etc., as money had and received to their use. Plea, never indebted, and setoff of the payments made. Held, that the assignees were entitled to recover all the money received by him after the act of bankruptcy, and chat he was not entitled to set off the payments he had made; though.

under a special plea, he might have protected himself, so far as the payment made without notice of the act of bankruptcy was concerned. Pearson v. Graham, 6 A. & E. 899, 2 Nov. & P. 636; Vernon v. Hankey, 2 T. R. 113; Turquand o. Vander-plank, 10 M. & W. 180; Stephens v. Elwall, 4 M. & S. 259; Thomason v. Frere, 10 East, 418; Drayton v. Dale, 2 B. & C. 293. But when a trader, in person, employed an auctioneer to sell goods, who sent him the proceeds by the hands of the defendant, the trader having become bankrupt by lying two months in prison, it was held, that his assignees could not recover from the defendant, who was a mere bearer, the money he had so received and paid over. Coles v. Wight, 4 Taunt. 198; Coles v. Robins, 3 Camp. 183; Tope v. Hockin. 7 B. & C. 101; Shaw v. Batlev. 4 B. & Ad. 801. And where one had bought goods, bona fide, of a trader who had previously committed an act of bankruptcy, and paid for them, without knowledge of the bankruptcy, it was held, that the assignees of the seller could not maintain trover for the goods, the payment having been protected by stat. 1 Jac. I. c. 15, § 14 , Cash v. Young, 2 B. & C. 413; Rouch v. The Great Western Railway Co. 1 Q. B. 51; Tripp p. Armitage, 4 M. & W. 687.

* It has been held, that where land was seized on execution before the publication, and the levy completed afterwards, the creditor took the land, and not the assignee, because the levy, by relation of law, referred back to the time of the seizure on execution, (d)

(b) Kynaston v. Cronch, 14 M. & W. 266, above stated. See Hurst v. Gwennap,

3 Stark. 306; Sannderson v. Gregg, 3 id. 72; Cash v. Young, 2 B. & C. 413. See also Copland u. Stein. 8 T. R. 199.

(c) Such a provision was incorporated in most of our insolvent laws. The language of Shaw, C. J., in Clarke v. Minot,

4 Met. 346, upon this point, may be quoted: "This question depends upon the provisions of the insolvent law determining the time at which the assignment shall take effect, so as to divest the property of the insolvent in his real and personal estate and chosen in action, and vest the same in his assignees. This clearly is not the time of the act of assignment, for that is always some time after the commencement of the proceedings, and by the terms of the statute it relates back to an anterior period. One other consideration must be obvious: which is, that the judge, by such assignment, merely executed a power devolved by law upon him; he conveys no interest of his own; the property which passes by it is transferred by force of the statute, and therefore the legal effect of such transfer depends little upon the terms of the assignment, either as to the property transferred, or the time at which it shall take effect. But the legal effect and operation of the assignment, in these respects, must depend upon the provisions of the assignment. It is purely a statute title, under which an assignee claims either the goods or choses in action of the insolvent; and to the statute we must look for the nature and extent of that. title." And so it was held, that, under the Massachusetts statute, the transfer took place at the time of publication. Prentiss, J, in Downer v. Brackett, 5 Law Rep. 392. The case of Kittridge v McLoughlin, 33 Me. 327, seems contra; but it is to be observed that the doctrine laid down in a portion of the head-note, on this point, was not expressly or directly maintained by the court, and that so far as the time of the transfer, as between that of the petition and the publication, the point did not come up in the case.

(d) Cushing v. Arnold, 9 Met. 23. Dewey, J., said; "The second objection

But the question of time has also another importance. Our national bankrupt law contains a provision as to the length of time, before insolvency, which must intervene to make certain transfers by the insolvent, made in contemplation of insolvency, void. This time is four months before decree, or six months before the filing of the petition, (e) If before this time a party deal with the bankrupt in good faith, he is unaffected by any fraud on the part of the defendant. And it was held in England, where the time expired on the filing of the petition, that, in computing this time, the day on which the transaction took place, or the day on which the petition was filed, must be excluded. (f)l And the very hours when the * events take place are to be regarded, at least in some cases, as fractions of days are considered by the court. This last rule was adopted by Story, J., but denied under the insolvent law in Vermont, (g) to the levy of the execution is, that it had not taken effect so as to divest the property of the debtor, before the institution of the proceedings in insolvency, and therefore the estate passed to the assignee. The extent of the right of the assignee under the deed of assignment, and to what period of time it attaches, are questions now very well settled. Such deed transfers all the property of the insolvent as held at the time of the first publication by the messenger. It is admitted that the levy was commenced before the petition for proceedings in insolvency was filed, but it is said that it was not completed till after publication. But, as well by statute as by the decisions of this court, the levy of an execution is to take effect from the time of the seizure on execution." Heywood v. Hildreth, 9 Mass. 393, Waterhouse v. Waite, 11 id. 210.

(e) Section 34.

(f) Cowie v. Harris, 1 Moody & M. 141. In this case the commission in bankruptcy was issued on the 14th of May, 1825. Goods of the bankrupt had been deposited with a pawnbroker, on the 14th of March, 1825. The Attorney-General, for the plaintiffs, did not contend that they were deposited within the two months, and Lord Tenterden, C. J., said: " With respect to the goods deposited on the 14th, the right of the plaintiffs will depend upon the validity of the transaction as between the bankrupt and the creditor; for both days cannot be reckoned inclusively so as to make March the 14th not more than two calendar months before May the 14th, the date of the commission." 8. p., Ex parte Farquhar, 1 Mont. & McA. 7.

(g) Thomas, assignee of Houlbrooke v. Desanges, 2 B. & Ald. 586. In this case, the facts were, that the bankrupt was surrendered in discharge of his bail on June 1st, 1818, between six and eight o'clock in the evening; and on the same day, between one and two o'clock in the afternoon, a writ of fieri facias was delivered to the defendants, who, by their officer, entered into the bankrupt's premises, and seized the goods. The bankrupt lay in prison more than two months afterwards. The plaintiff insisted that, the act of bankruptcy having been committed on the same day that the goods were taken in execution, the plaintiffs must in law be considered as having the property of the goods vested in them during the whole of that day, because there can be no fraction of a day. Abbott, C. J., thought that the court might notice the fraction of a day in this case, and nonsuited the plaintiffs, and a rule to set

1 In computing the four months before filing the petition in bankruptcy, within which time the assignment of his property by an insolvent debtor with a view to give a preference to any creditor is void, the day upon which the petition is filed must be excluded. Dutcher v. Wright, 94 U. S. 553; and the four months before the bankruptcy, an attachment made within which is dissolved, are reckoned exclusive of the first day, and if the last day is Sunday, of that also, Cooley v. Cook, 125 Mass. 406. That if the last day of the year within 'which a bankrupt may apply for a discharge falls on Thanksgiving Day, he may apply the next day, see In re Lang, 2 Bankr. Reg. 480. - K.

It may be added, that if fraud of any kind is attempted by the bankrupt at any time, the transaction is void so far as relates to him, and also so far as relates to any parties dealing with him, with a knowledge that the transaction is fraudulent on his part, (h)