held that, if the trader is brought to a state in which he must necessarily come to a stop, he is thereby made a bankrupt. When all the effects of a trader are assigned he must become bankrupt, for he can no longer proceed in his trade. And such an assignment is an act of bankruptcy, for this further reason, because it defeats the whole policy of the bankrupt laws, the object of which is to have all the effects of a bankrapt disposed of equitably and equally, by being assigned to trustees appointed by and for the creditors at large; and this object ought not to be defeated by assigning to one creditor, who is a trustee of the trader's own choosing, instead of the assignees, who are trustees chosen by the creditors at large. It is not material in this case, that the defendant had arrested the bankrupt previously to the signing of the bill of sale, for the stat. 1 Jac. I. c. 15, s. 2, provides, that if any one make, or cause to be made, any fraudulent grant or conveyance of his lands, tenements, goods, or chattels, to the intent, or whereby his, her, or their creditors may be defeated or delayed for the recovery of their just and true debts, he shall be a bankrupt;" and the statute 19 Geo. III. c. 22, s. 2, contains no exception to protect deeds made upon such compulsion, but only to protect payments made in the ordinary course of business, and this is not such a payment. In Cor v. Morgan, it became a question whether such a payment by compulsion was a payment in the usual course of business, and CHAMBRE, J. differed from the opinion of the rest of the court, and thought that it was not; but the other judges held that a payment by such compulsion was protected. He cited also Wilson v. Day,† Alderson v. Temple,+ Rust v. Cowper,§ Law v. Skinner,¶ and also Butcher * 2 Bos, and Pull. 398. + 2 Burr. 827. 4 Burr. 2235. § Cowper, 629,2 Bl. Rep. 997. 1806. NEWTON Lersus CHANTLER. 1806. NEWTON teisus CHANTLER. v. Easto; which latter case he considered as decisively in point." CLARKE, J. Contrà. "In all the cases upon the construction of the statute 1 Jac. I. c. 15, s. 2, the court has looked at the circumstances of each particular case, to see whether the deed is fraudulent or not. And in Worseley v. De Mattos, Lord Mansfield considers the deed itself as equivocal. He says of all the equivocal facts which can amount to acts of bankruptcy, deeds are the most open to be explained by a variety of circumstances. Hardly any deed is fraudulent upon the mere face of it. It is a good sale if the consideration be true; fraudulent if false; good, if possession immediately follows; bad, if it do not.' Here then was a fair and honest consideration; the defendant's debt was 3001. and the goods in the bill of sale produced no more; and there was no visible ownership left remaining in the bankrupt by which creditors might be deceived. In Wilson v. Day, on the contrary, there was no change of possession. In Butcher v. Easto, the defendant had not made the application for his debt previous to the conveyance. It was a voluntary offer on the part of the bankrupt to Easto; and he had not used due diligence. Although the bankrupt there was arrested, yet it was not by Easto. In Law v. Skinner,* the conveyance was not accompanied with possession, and in Compton Bedford, there was an assignment of all, a trifle, excepting a man's stock in trade in favour of particular creditors, just before an act of bankruptcy committed, which was therefore fraudulent and void. There must, therefore, be some fact from which fraud can be inferred as from collateral circumstances extrinsic of the mere deed itself, but in this case there is a total absence of all such circumstances." *Bl. Rep. 991. + Bl. Rep. 362. RICHARDSON, in reply." Stelfox, the bankrupt knew, at the time, that he was insolvent, which is of itself a collateral circumstance sufficiently indicative of fraud." LAWRENCE, J. "It is not necessary to look at other circumstances, if the deed itself disables him from carrying on his trade. In Law v. Skinner, it is reported, that the court said, that that made the bankrupt insolvent, and, therefore was an act of bankruptcy. But a man may be insolvent, and yet not a bankrupt. It is only an act of bankruptcy by conferring all the property on another, and preventing him from carrying on his business, in order to provide for the payment of his debts. But the mere ceasing to trade will not be an act of bankruptcy." RICHARDSON. "In Worsley v. De Mattos, Lord Mansfield said, that case was clear both upon the deed and upon the circumstances collateral to the deed. Butcher v. Easto, is not distinguishable from this." Lord ELLENBOROUGH, C. J. "This is a question arising upon a deed made by a person who had been arrested at the defendant's suit, and against whom there was another writ out at the suit of another creditor, he being then in insolvent circumstances, and knowing himself to be so. In this situation, he executed an assignment of all his effects. This has been, in all cases, held to be an act of bankruptcy. If it is not, there should at least be something on the part of him who says it is not an act of bankruptcy, and not fraudulent, to shew that it is not in contemplation of bankruptcy, and to delay creditors. I lay down that every man is to be considered as contemplating the ordinary consequences of every act that he does. He knows, that by such an assignment, he is prevented from carrying on his business; and that operates as an inconvenience on the creditors at large, and delays the payment of their debts. In making this deed, 1806. NEWTON versus CHANTLER. 1806. NEWTON versus he must have been contemplating his probable bankruptcy. In this particular case, he might contemplate an act of bankruptcy, in invitum, by laying in gaol two CHANTLER months. If he did not provide for the discharge of the execution he must remain in prison so long. Then must he not contemplate the necessary consequence of his deed? I do not mean that there is an act of bankruptcy visibly and instantly before him; but I must assign this purpose to his act, which is the necessary consequence of it, and must consider that he meant to produce that necessary effect, which operates as an injury to the rest of the creditors. Under these circumstances where he is disabled wholly from trading, I must consider this as a fraudulent deed, within this statute." GROSE, J. "Generally speaking, an assignment of all is an act of bankruptcy, and this case is not distinguishable from others." LAWRENCE, J. "If the necessary consequence of this deed was to prevent the goods from going to all the creditors, and to cause them to go to a partial creditor in opposition to the course of the bankrupt laws, that is, notwithstanding the circumstance of the compulsion of the arrest, an act of bankruptcy." LE BLANC, J. "In cases like this, it has been held, that a conveyance of all the goods of a bankrupt, to a particular creditor, is an act of bankruptcy, and it makes no difference that the person taking the assignment made an arrest. I cannot distinguish this case from Butcher v. Easto, where a man executed a deed to a creditor who came forward to relieve that debtor from the arrest of another person; and that is, therefore, a clear authority, that the circumstance of compulsion by arrest shall not take this out of the general rule.” JUDGMENT for the PLAINTIFF. SCHOLEY and Another against PAGE.-Jan. 31. 1806."" Bail-bond. To debt on a bail-bond, at the suit of the sheriff, the defendant pleaded that the action was brought for the benefit Satisfaction. of one S. a bailiff to the plaintiff, and that, on the arrest, he paid 221. on account of debt and costs to S. for the plain. tiff in the suit, and also 5l. further, in satisfaction, before the rule on the sheriff expired, and which would have satisfied the debt and costs, and was by S. accepted in satis faction; held bad, on demurrer, for S. had no legal inte rest in the bond, and no power even to release by deed, and satisfaction without deed is no plea, and it ought to have been the ground of an application to the equitable jurisdiction of the court, if available at all. THE plaintiffs declared in debt, upon a bail-bond made to them as sheriff of Middlesex. The defendant craved oyer of the bond and condition, which was for the appearance of one W. Mearns, at Westminster, on Wednesday next after 15 days of Easter, to answer to George Loveday, &c. and also to a bill of the said George for 501. &c. and the defendant says, actio non, because the action is brought and prosecuted by the plaintiffs, for the use and benefit of one James Simpson, and as trustee for him and not for their own use; and further, that before the making of the obligation, the said W. Mearns, to wit, on, &c. at, &c. was arrested by the said James Simpson, then being one of the bailiffs of the plaintiff, as sheriff of, &c. under a certain precept of our lord the now king, and called, A Bill of Middlesex, &c. at the suit of the said George Loveday, against him the said W. Mearns, and returnable in the said court, on Wednesday after 15 days of Easter then next following, and now past, &c. and which was indorsed for bail for 201. by virtue of an affidavit, &c. and under and by virtue of a certain warrant under the hand and seal of the said sheriff, &c. And the said W. Mearns having been so arrested by the said James Simpson, as such bailiff of the said she SCHOLET versus 10. |