stopped at the end of Chancery Lane till he learnt that a ca. sa. had not issued. Tindall, C. J., thought this did not amount to an act of bankruptcy. On a motion to set aside the verdict, the rule was made absolute, as the stopping at the end of Chancery Lane was an absenting and an act of bankruptcy. (a)

THE MASTER OF THE ROLLS:

I am quite satisfied on this point. I consider it clear that the bankrupt, in thus absenting himself from the meeting of North Aston, committed an act of bankruptcy, and that Benjamin Churchill, one of the trustees, had notice of that act of bankruptcy at the time he delivered the conveyance; I consider these points to be clear upon the evidence produced and the cases cited. But the bankrupt has conveyed, and the commission did not issue within two months of the transaction.

Mrs. Greenwood, the plaintiff in this case, having a demand upon Samuel Churchill for the sum of 2,2007., in respect to trust monies possessed by him, an application on her behalf was made to Churchill, with strong pressure for a security, early in the year 1826. Upon that occasion Churchill gave his bond for the amount, with interest, I think at two months; that bond became due, and it was not paid; and not being paid, Mrs. Greenwood, the plaintiff, brings an action upon the bond, and obtains judgment. In the month of October 1826, Mr. James, the brother-in-law of Churchill, and the trustee under the deed, which is in this case impeached as an act of bankruptcy, applies to Mrs. Greenwood, and proposes, that if she will not execute her avowed intention to sue out execution on the judgment obtained on this bond on the following Michaelmas, that Churchill was ready, together with the trustees of that deed, to

(a) See Lees v. Marton, 1 M. & Robinson, 210.

1833.

ROBINSON

and another

v.

CARRINGTON and others.

execute a security to her for the amount on his Oxfordshire estate. Mrs. Greenwood was advised to accept this proposal; and deeds are accordingly prepared, stating the consideration to be the undertaking not to sue out execution; and those deeds James the trustee undertakes to get executed. It appears, in point of fact, that although dated when the agreement was made, namely, on the 27th of October, they were not actually executed till the month of January following; and the acknowledgment of the satisfaction of the judgment was not entered till a subsequent period. It is stated, on the part of the assignees of Churchill, against whom a commission of bankrupt subsequently issued, that Mrs. Greenwood is not entitled to the benefit of this security, because this security is in fact derived from certain trust conveyances executed by Churchill, by deeds of lease and release, on the 17th and 18th days of July 1826, and that those deeds were in fact an act of bankruptcy, and consequently her title derived from the trustees under those deeds was not available. The first consideration, therefore, in the case, is, whether these deeds of the 17th and 18th of July 1826 were or were not an act of bankruptcy. Any deed executed by a trader, with an intent to defeat or delay his creditors, is an act of bankruptcy; and that intention may appear upon the face of the deed, or that intention may be proved by extrinsic circumstances. In this case it is argued both ways; it is said that the intention appears on the face of the deed; it is said also that it is proved by extrinsic circumstances. Upon the face of the deed the recital is an intention to convey his freehold and leasehold estates to trustees, and an actual conveyance of his freehold and leasehold estates in Oxfordshire to trustees, with a power to them to sell or mortgage and apply the money as he shall direct, and to repay to him

1833.

ROBINSON

v.

CARRINGTON and others.

all monies that shall not be applied according to his direction; and the question is, whether, upon the face of the deed, there is an act of bankruptcy? whether this and another deed discloses, by its recital or its provision, an intention to defeat or delay the creditors? It has not been stated in what manner the creditors could be defeated or delayed by this deed, if executed according to its avowed purpose; and I am perfectly at a loss to understand how any creditor can be said to be defeated or delayed by the provisions of the deed. It is a power given to trustees, that they may become substitutes for the bankrupt, in order to convert into money his real estates, to be applied as the bankrupt himself should direct. The bankrupt remains to all intents and purposes in the same beneficial ownership of the property as he was actually in before he executed the deed, and the creditor is in no manner defeated either of his legal or equitable right. If the effect of this deed were to prevent the legal execution of the creditor, it might then be said, that, upon the face of the deed, it would operate to defeat or delay the creditor; but, by the statute of frauds, inasmuch as the beneficial interest remains in the bankrupt, the creditor has the same legal right of execution as if no such deed had ever been executed. There is no intention expressed upon the deed to give a preference to any particular creditor; the sole purpose is, that the trustees are to take upon themselves the conversion of the property which, before the deed was executed, was solely in the power of the bankrupt.

The extrinsic circumstances relied upon are, the circumstances of great embarrassment on the part of the bankrupt, and that he was overwhelmed with debt. It appears upon the evidence that these circumstances certainly induced the deed, for the state of the bankrupt's affairs had so affected his mind, that his friends

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 conveyIf, 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.

ance.

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.