CASES IN BANKRUPTCY. ROBINSON and GREENWOOD, assignees of ON 26th March 1827 a commission of bankrupt issued B 26 1833. ROBINSON and another บ. CARRINGTON and others. &c., sell and dispose of the same, at such time or times, and for such sum and sums, as the said trustees or trustee should in their discretion think proper; and the said Samuel Churchill declared, that the trustees should and might, till the sale of the said estates, receive the rents and profits thereof, and raise any sum by mortgage thereon, and renew the leases thereof, and that the receipts of the trustees should be good discharges, &c. ; "and that the said trustees or trustee should stand possessed of the monies which should arise from any sale or mortgage of the said hereditaments and premises, in trust for such purposes as he the said Samuel Churchill should by deed or any writing under his hand direct; and in default of and until such direction, in trust for the said Samuel Churchill, his heirs, executors, administrators, and assigns; and that, as between his devisees on the one hand, and his executors and administrators on the other hand, the money to arise by sale of the said freehold hereditaments, or any part thereof, which should not have been made, or contracted to be made in his lifetime, should be considered as real estate, unless he should direct the contrary;" that the estates so conveyed constituted the great bulk of his property; that at the date of the indentures of the 17th and 18th July 1826 an officer of the sheriff of Oxford was in the house of Samuel Churchill in possession, and that the officer held warrants upon six writs of execution, of which one was on two notes for such small sums as 271. each; that a writ of elegit to levy a sum of 3,000l. and upwards had been and was then in force against the lands of Samuel Churchill, and there were eight actions at law and two suits in equity then depending against him, and that he was insolvent; that the indentures were not executed in July 1826, the time at which they bore date, and not until late in January or early in February 1827, when they were antedated; that before the execution of any of the indentures by any of the parties thereto, viz. on the 9th of November 1826, Samuel Churchill left his dwelling-house, and absconded out of the county of Oxford, in order to avoid his creditors. The bill further stated, that Samuel Churchill had committed an act of bankruptcy by breaking an appointment to meet his creditors. Under these circumstances, the plaintiffs, as assignees, contended that the indentures of the 18th of July were void, and an act of bankruptcy, and that they were entitled to all the estate and interest of Samuel Churchill in the estate comprized in the indentures, together with divers conveyances which the trustees had executed in pursuance of such deed to the different defendants. Mr. Bickersteth, Mr. Pemberton, and many other gentlemen (eighteen in number), for the different defendants, contended, 1st, That the indentures of 17th and 18th of July 1826 were not an act of bankruptcy. 2dly, If they were, that the parties had not notice, and the commission did not issue till more than two months after the execution of the deed. 3dly, If the parties had notice, it could not be invalidated under the commission, which did not issue till more than two months after the execution of the deed. 1st, The deed is not an act of bankruptcy. It is merely a conveyance by Churchill of part of his property, for the purpose of converting realty into personalty, in order to meet present exigencies, which, it has been settled, by Berney v. Davidson, 1 Brod. & Bing. 409, and 4 Moore, 126, and Berney v. Viner, 4 Moore, 1833. ROBINSON and another V. CARRINGTON and others. 1833. 323, is not an act of bankruptcy; and, so far from being injurious to creditors, it is only doing what the and another execution creditors had themselves power to do. ROBINSON บ. CARRINGTON and others. 2dly, If it is an act of bankruptcy, the parties had not notice, as the indentures are an assignment only of part of the property; and the commission did not issue. until the 26th of March 1827, which being more than two months from the execution of the indentures, they are protected by 6 Geo. 4. c. 16. s. 81. (a) If it is to be contended that notice of the existence of the deed implies notice of the intent of the deed, the answer is contained in Read v. Ward, 7 Vin. 122, by which the contrary is decided. 3dly, If it is an act of bankruptcy, and the parties had notice, it cannot be invalidated under this com (a)" And be it enacted, that all conveyances by, and all contracts and other dealings and transactions by and with any bankrupt, bonú fide made and entered into more than two calendar months before the date and issuing of the commission against him, and all executions and attachments against the lands and tenements or goods and chattels of such bankrupt, bonú fide executed or levied more than two calendar months before the issuing of such commission, shall be valid, notwithstanding any prior act of bankruptcy by him committed; provided the person or persons so dealing with such bankrupt, or at whose suit or on whose account such execution or attachment shall have issued, had not at the time of such conveyance, contract, dealing, or transaction, or at the time of executing or levying such execution or attachment, notice of any prior act of bankruptcy by him committed: Provided also, that where a commission has been superseded, if any other commission shall issue against any person or persons comprised in such first commission, within two calendar months next after it shall have been superseded, no such conveyance, contract, dealing, or transaction, execution or attachment, shall be valid, unless made, entered into, executed, or levied more than two calendar months before the issuing the first commission." mission, which did not issue till more than two months after the execution of the deed. Jackson v. Barrow, 3 Carr. & P. 87. Mr. Tinney, Mr. Swanston, and Mr. Montagu for the assignees : 1st, The deed is an act of bankruptcy. Any deed with an intent to prefer a creditor is, upon the principle of equal distribution, upon the principle of the equity of equality, an act of bankruptcy. The only difficulty consists in discovering the intent. When the preference is obvious, as in an assignment by a trader of the whole of his property, or of so much as will incapacitate him from trading, there is no difficulty. The Court infers the intent from the act. It says men must intend the obvious consequences of their actions. The doctrine is the same, for the principle is the same, when only part is assigned, although the difficulty, from the intent not being obvious, is increased. It is necessary, therefore, to resort to extrinsic circumstances, as, whether the trader was solvent or insolvent; whether the execution was secret or public; whether possession was or was not delivered; whether it was voluntary or from pressure; with all the various acts to which reference may be made when endeavouring to discover the secret motive by which the trader was influenced. The cases in support of this doctrine are numerous, and of great authority,Worsley v. Demattos, 1 Burr. 467; Linton v. Bartlet, 3 Wils. 47. This short case explains the whole principle of the law. It is as follows: A trader, being insolvent, in consideration of a loan of 1207., assigns one third part of all his effects to the lender, who is his brother, and within two days after the making the deed the trader absconds, and is declared a bankrupt. 1833. ROBINSON and another บ. CARRINGTON and others. |