1 Pratt v Curtis, 2 Lowell, 87. But an assignee has no better title than the bankrupt, except in goods conveyed by him in fraud of creditors. Kenney v. Ingalls, 126 Mass. 488; Dugan v. Nichols, 125 Mass. 43. The burden of proving fraud is on the party alleging it throughout. Burnham v. Noyes, 125 Mass. 85. - An assignee in bankruptcy may sue in a State court to recover property conveyed by the bankrupt in fraud of creditors. Johnson v. Helmstaedter, 3 Stewart, 124.- K.

* questions of fact, rather than of law, sometimes arise as to what is fraud in this sense. It is undoubtedly the purpose of the statute to make void any transfers, whether outright or by way of mortgage or pledge, which were intended to give any creditor an advantage over any others. The transfer would be void, therefore, if made when the transferrer was either insolvent, or contemplated insolvency, (n)1 A transfer is in contem(n) The nature of the fraud, in transfers of this character, is stated, in addition to the above cases, by Lord Tenter-den, in Cook v. Caldecott, Moody & M. 525: " All other proof of any act of bankruptcy previous to the sales in question having tailed, the only question is, whether the transactions in themselves, or either of them, are to be considered as acts of bankruptcy, within the 6 Geo. IV. c. 16, § 3. The words of the clause are ' fraudulent gift, delivery, or transfer,' the word 'fraudulent' of course applying to each of those which follow it. Now, the sale is a' transfer,' and therefore may come within the provisions of the statute as a 'fraudulent transfer,' But though it may do so, it is not from its nature a transaction exposed to the same suspicion as some of those which would be comprehended under the former words; and I think that a sale cannot in reason be held to be a fraudulent transfer, unless it takes place under such circumstances that the buyer, as a man of business and understanding, ought to suspect and believe that the seller means by it to get money for himself in fraud of his credi-tors, and that the sale is made for that purpose. The question, therefore, for the jury is, whether they think that the defendant, as a man of business, ought to hare known that Down must have effected these sales, or either of them, for the purpose of putting the proceeds in his own pocket, and defrauding his creditors 1 If so, the verdict should be for the plaintiffs, for all goods comprised in that transaction, or delivered subsequently to it/* The meaning of the clause. " in contemplation of bankruptcy/' which occurs in nearly all the statutes, has been the subject of judicial discussion. In Arnold v. Maynard, 2 Story, 349, it was held by Judge Story that the clause does not necessarily mean in contemplation of his being declared a bankrupt within the statute, but in contemplation of his actually stopping his business, because of his insolvency and incapacity to carry it on. In this case the English authorities are reviewed, and the conclusion reached is, that if, when the party " is deeply involved in debt, and intending to fail and break up his whole business at once, he makes a conveyance to a particular creditor to give him a preference over all the rest, it seems to me irresistible evidence that he does the act in contemplation of bankruptcy. I do not think that it is necessary for this purpose that he should contemplate the conveyance as an act of bankruptcy, or that he should make it with a present and immediate intention to take the benefit of that statute. And in 8 Met. 385, Jones v Howland, it was held, that though insolvency in fact exists, yet if the debtor honestly believes he shall be able to go on in his business, and with such belief pays a just debt, without design to give a preference, such payment is not fraudulent, though bankruptcy subsequently ensue." And the same doctrine was held in the District Court of Vermont, by Prentiss, J., 6 Law Reporter, 261. See also the language of Gibbs, C. J., in Fidgeon v. Sharpe, 5 Taunt. 539, above cited; of Dewey, J., in Gorham v. Stearns, 1 Met. 366; of Lord Mansfield, in Hassels v. Simpson, Doug. 89, in notes; and of Lord Ellen-borough, in Newton v. Chantler, 7 East, 138. Also Flook v. Jones, 4 Bing. 20; Poland v. Glyn, id. 22, n.; Ridley v Gyde, 9 id. 349; "Morgan v. Brundett,'5 B. & Ad. 289; Abbott v. Burbage, 2 Bing. N. C. 444; Hartshorn v. Slodden, 2 5. & P. 582; Gibbins v. Phillips, 7 B. & C. 529; Atkinson v. Brindall, 2 Bing. N. C. 225; Belcher v. Prittie, 10 id. 408. But confession of a judgment is valid, in view of this provision, if it be not voluntary, but the effect of measures taken by the creditor, or in his power to take. Haldeman r. Michael, 6 Watts & S. 128. Though the confession be but ten days before the filing of the petition. Taylor v. Whitthorn, 5 Humph. 340. And security given to a creditor in contemplation of" bankruptcy, platiou * of insolvency, as well where the insolvency exists as where it is anticipated, (o) So, if any transfer was made to benefit the bankrupt himself illegally, it would be voidable by the assignee. And, in general, the assignee would not be barred from procuring any property of the bankrupt, by his act, if it were fraudulent, or against the statute of bankruptcy, or common law. (p)l

1 An assignment for the benefit of creditors, even, is invalid as against a subsequent assignee in bankruptcy appointed within three months. In re Beisenthal, 14 Blatchiord, 146; Globe Ins. Co. v. Cleveland Ins. Co. 14 Bankr. Reg. 311. - K.

Ships, in the port where the insolvent resides, pass to the assignee like other chattels, (q) If, however, they are at sea, the effect of bankruptcy may not be certain. We should say, however, that the general rules respecting the transfer of this property, by which an inchoate title is given by the bill of sale, * which is completed by actual possession, without laches, would apply here. If we suppose a ship-owner transfers his ship at sea by a bill of sale, in good faith, and afterwards becomes bankrupt, his assignee takes only a right to get possession of the ship, or a property in it, if he can do so, before the former transferee, and without any laches on the part of that transferee, (r)