1833. ROBINSON and another v. CARRINGTON and others. Per Curiam:- Although this may be a hard case upon the brother, who is a bona fide creditor, yet the giving him the preference is a fraud upon all the laws concerning bankrupts, which proceed upon equality, and say that all the creditors shall come in pari passu. There is no case where ever such a preference as this was allowed. The same spirit of equality ought to warm the courts of justice which warmed the legislature when they made the bankrupt laws; and if we should let this deed stand, we should tear up the whole bankrupt laws by the roots; it is a bill of sale made by a trader at a time when he was insolvent, and plainly had an act of bankruptcy in contemplation; it is partial, and unjust to all the other creditors. Judgment for the plaintiff that the deed is void. The doctrine in Linton and Bartlet is thus recognized by Lord Mansfield in Harman v. Fisher, Cowper, 117. He says, "The case of Linton and Bartlet has determined that, though the act be complete, yet, if the mere and sole motive of the trader was to give a preference, it shall be void, and, if by deed, is in itself an act of bankruptcy. In that case the goods assigned were not more than one third of his effects; upon what then was the opinion of the Court founded? Not upon an assignment of one third, being the same as an assignment of all his effects, but upon the ground that the trader gave a preference, and upon his sole motive being to do so. If he can give it to one, he can give it to another, which would establish this principle, that a bankrupt may apportion his estate amongst his different creditors as he thinks proper." The same principle is recognized by Lord Ellenborough in Newton v. Chantler, 7 East, 143, where his Lordship says, in words which may be used in the present case, "The trader was in insolvent circumstances, and known to himself to be so at the time. Now the execution of The case, as reported in 4 Moore, shows the principle upon which it was decided, and a moment's consideration of that principle will show how inapplicable Berney v. 1833. ROBINSON and another V. CARRINGTON and others. 1833. ROBINSON and another v. CARRINGTON and others. Davidson is to the case now before the Court. Mr. Serjeant Lens in argument said, "A transfer of part of a trader's property, for the purpose of raising money by way of mortgage, or for the purpose of carrying on trade, is not an act of bankruptcy. Here there was a transfer of only part of his property, to protect and not to defraud or delay his creditors; neither does the transfer amount to a fraud in law, as there was a very large surplus remaining after the property was conveyed. The general principle, with respect to such transfer of property, must be confined to the particular circumstances of each particular case; a principle which was recognized by the Court in Berney v. Viney, 4 Moore, 326, where the Court says, "It appears that the legal effect of the deed was to provide a speedier payment to the creditors at large by converting his real into personal property." Such is the case of Berney and Davidson, every fact of which is totally different from the present. In Berney and Davidson the debtor was an old man of eighty, of large property, who was wholly ignorant of business, having been only a dormant partner, and involved in ruin by the misconduct of his partner. His only wish was to pay the creditors by a sale of part of his realty. In the present case the debtor was an active solicitor, was steeped in bankruptcy, having dishonoured all his bills, and being surrounded by executions, of which one was for the small sum of 271. He was insolvent beyond the possibility of redemption, and the conveyance, as is proved by the event, was so far from being beneficial to creditors, that it has secured 20s. in the pound to a portion, and left the general body a dividend not amounting to 2d. in the pound. With respect to the position, that this conveyance is not productive of any evil, as it is merely doing what the creditors might themselves have done, the answer is obvious. It has produced all the evil; it has produced this suit; it has given to one class of creditors 20s. in the pound, and to the others not as many pence, by placing the property beyond the reach of the law, by which each creditor has been delayed, and may ultimately be defeated. If the execution creditors had proceeded in regular course, it would have been attended with the result of every day's practice. The general creditors, attentive to their own interests, would have inquired and discovered anterior acts of bankruptcy (which did exist) by which the executions would have been defeated; inquiries which, by this assignment, have been prevented. 2dly, The parties had, in legal construction, notice that the deed was an act of bankruptcy; for notice of the existence of a deed, with notice of such facts as existed in the present case, is implied notice both at law and in equity. In Heirne v. Mill, 13 Ves. 121, the Lord Chancellor, when considering the various cases of constructive notice, says, "Another case is, where the law imputes that notice, which, from the nature of the transaction, every person of ordinary prudence must necessarily have. In the case of Hill v. Simpson, Fitz. 211, 3 Atk. 294, 2 Atk. 242, 3 Atk. 392, there is a direct recognition of the principle which is laid down in many cases. In Taylor v. Hibbert, 2 Ves. sen. 437, Lord Rosslyn states it thus: "I have no difficulty to lay down, and am well warranted by authority, and strongly founded in reason, that whosoever purchases an estate from the owner, knowing it to be in the possession of tenants, is bound to inquire into the estates those tenants have. It has been determined, that a purchaser, being told particular parts of the estate were in possession of a tenant, without any information as to his interest, and taking 1833. ROBINSON and another v. CARRINGTON and others. 1833. ROBINSON and another v. CARRINGTON and others. for granted it was only from year to year, was bound by the lease that tenant had, which was a surprise upon him. That was rightly determined, for it was sufficient to put the purchaser upon inquiry that he was informed the estate was not in the actual possession of the person with whom he contracted; that he could not transfer the ownership and possession at the same time; that there were interests, as to the extent and terms of which it was his duty to inquire." The same principle is laid down in Ferrars v. Cherries, 2 Vern. 384; and the reason is, that the titles of other men ought not to be shaken by creating a title, vested in a third person, through his own folly. The settlement after marriage did not recite the previous agreement, but it was held that the party ought to have gone to the wife's relations. In Spratt v. Hobhouse, 4 Bing. 180, upon a question whether a party had notice of an act of bankruptcy, it being admitted that he had notice of a docket having been struck, and he having refused to pay without an indemnity, the Court says, "On the other side of Westminster Hall, direct notice of an incumbrance has never been esteemed necessary to fix a purchaser; it is enough if he has been fairly put on his guard. The rule is, that where a purchaser could not have satisfied himself with a title but by looking at a deed which was necessary to complete the title, he shall be holden to have done so, otherwise he must take the consequence of crassa negligentia. According to the late acts, a party paying money after an act of bankruptcy is not liable to refund, unless at the time he was apprised of the circumstance; but he may be apprised in various ways; and though notice of a docket may not of itself be esteemed notice of a bankruptcy, yet, connecting such a notice with the circumstances of the defendants requiring security before they made the payment, no jury could |