1833. ROBINSON and another v. CARRINGTON and others. considered he would not be equal to the conversion of the property necessary to relieve him from his embarrassments; and it appears on the evidence in the cause, that it was from that motive alone that he was advised to execute this conveyance, and for no other purpose than to place in his stead persons who, not being under this depression of spirits, and this affection of health, which was the consequence of this depression, would be better able to manage the affairs than he himself could do if he personally interfered. It so happens that this motive for the conveyance is precisely the motive which took place in the case of Mr. Boehin, whose age and infirmities induced a similar conveyance; and it was held, as must be held every where, that the deed, being executed from such a motive, could not be considered as executed with a view to defeat or delay creditors, but solely for the purpose of relieving himself from a trouble which, from his infirm state of health and his age, he was incapable of undertaking. The extrinsic circumstances, therefore, no more than the terms of the deed, afford evidence of any intention to defeat or delay the creditors. The next consideration is, whether the deeds executed in favour of Mrs. Greenwood (however the other deeds might have been executed) could be considered as given to her with a view to give her a fraudulent preference to the other creditors. Now, though that has been hinted at, it has not been argued that it was a security given to her under a pressure as a consideration for the release of the bankrupt, and would therefore, on all the principles applied to cases of this sort, be considered as not simply a fraudulent preference, but as consequence of the necessities which the bankrupt was under, by the pressure of his creditor, to give a satisfaction for his debt. It appears to me that I need say little more on this case, because, such being the state of the facts, it is difficult to conceive the principles upon which this deed can be questioned. It has been argued, in the latter part of this case, that there was another ground which ought to be taken into consideration, that the bankrupt had committed an act of bankruptcy, with a knowledge of one of the trustees, prior to the execution of the trust-deed, and that such person was not capable therefore of taking a conveyance from the bankrupt, because he had full knowledge of the bankrupt's inability to give a valid conveyance. It occurred to me, upon this statement, that it was a fact quite immaterial, because Mrs. Greenwood takes her interest in the estate, not from the trustees, but from the bankrupt himself, who was a party to her conveyance. If, in consequence of the act of bankruptcy committed with the knowledge of the trustees, no estate would pass by the effect of this deed to the trustees, the estate would necessarily pass as a security to Mrs. Greenwood by the effect of the deed to her. It has been said, that the point is not raised by the facts of the case; I rather think the point is raised by the facts of the case. I incline strongly to the opinion that an act of bankruptcy was committed by the bankrupt by the transaction of North Aston; and I am strongly of opinion, too, that Mr. Benjamin Churchill, one of the trustees, had notice of that act of bankruptcy; but it appears to me, for the reasons I have stated, to be immaterial. If it had been otherwise, I would not have decided either of these facts on the evidence, but would have sent it to a jury to try both those facts; but being of opinion that those facts are not important, I feel it my duty to decide this case on the short ground I have stated, without calling for the assistance or intervention of a jury. 1833. ROBINSON and another v. CARRINGTON 1 L. C. August 1833. A solvent partner may, after a secret act of bankruptcy committed by his co-partner, make the firm liable by accepting a bill for a previous liability. Ex parte ROBINSON.- In the matter of HOUGH- THIS was an appeal from the decision of the Court of Review in ex parte Ellis, reported Mont. & Bli., page 249, upon the following SPECIAL CASE. Previously to the issuing of the commission hereinafter mentioned, the said bankrupts carried on business in Soho Square, as drapers and copartners, under the name and firm of Houghton and Watts. On the 4th January 1832 the said James Houghton absconded and committed an act of bankruptcy. Upon the following day the said John Watts accepted, in the names of the said firm, and delivered to Evan Davies, three bills of exchange, of which the following are copies : £500. London, Dec. 31, 1831. Two months after date pay to my order five hundred pounds, value received. To Messrs. Houghton and Watts, Soho Square. } EVAN DAVIES. (Indorsed) Two months after date pay to my order seven hun dred and fifty pounds, value received. To Messrs. Houghton and Watis, (Accepted) At Messrs. Prescott, Grote, and Co. HOUGHTON and WATTS. } EVAN DAVIES. (Indorsed) Pay Mr. W. Robinson or order, EVAN DAVIES. WM. ROBINSON. £300. London, January 2, 1832. Two months after date pay to my order three hun dred pounds, value received. To Messrs. Houghton and Watts, Soho Square. (Accepted) Messrs. Prescott, Grote, and Co. HOUGHTON and WATTS. } EVAN DAVIES. (Indorsed) Pay Mr. W. Robinson or order, EVAN DAVIES. 1833. Ex parte ROBINSON. In the matter of HOUGHTON and another. The said bills were not drawn on the days on which they respectively bear date, but on the 5th January aforesaid, and were accepted and delivered by the said John Watts as aforesaid, as a security for liabilities contracted by the said Evan Davies upon certain bills of exchange, before the said 4th day of January, accepted by the said Evan Davies for the accommodation of the said bankrupts, and which bills were then outstanding in the hands of third parties. When the three bills above set out were so given to the said Evan Davies, he knew that the said James Houghton had absconded, and had committed an act of bankruptcy. On the same day the bills were indorsed by the said Evan Davies, and remitted to one William Robinson, and by the said William Robinson placed to the credit of the said Evan Davies in account. At the time of such remittance the said Evan Davies was indebted to the said William Robinson in the sum of 2,000l., and the said bills were bonâ fide so credited by the said William Robinson, in ignorance of the circumstances under which they had been accepted, and without notice of the act of bankruptcy having been committed by the said bankrupts, or either of them. On the 6th of January the said John Watts also committed an act of bankruptcy. On the 10th a commission of bankrupt under the Great Seal of Great Britain was issued against the said James Houghton and John Watts, under which they were declared bankrupts; and Wynn Ellis, Andrew Caldecott, and William Dean were chosen assignees. The said William Robinson tendered the said three bills of exchange for proof under the said commission, against the joint estate of the said bankrupts, and the proof thereof was admitted by the commissioners. The said Wynn Ellis, Andrew Caldecott, and William Dean, in the month of November 1832, presented their petition to the Court of Review, praying that the said proof of the said three bills of exchange, amounting to the sum of 1,5501., so made by the said William Robinson, might be expunged; and on the 14th of February 1833 the said petition came on to be heard before the said Court. The Court was of opinion, that the said William Robinson was not entitled to prove the said bills, or either of them, against the joint estate of the bankrupts; and therefore ordered the proof to be expunged accordingly, and that the costs of the petitioners and respondents should be paid out of the estate of the bankrupts. The question is, Whether, under the circumstances aforesaid, the said William Robinson was entitled to prove such bills against the joint estate of the bankrupts ? I think this a proper case to be presented upon appeal to the Lord Chancellor. 14th March 1833. GRIFFITH RICHARDS. Approved of and certified by me, 14th March 1833. T. ERSKINE, C. J. |