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1815.

SPRATLEY

v.

Wilson.

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This case
was not after-

not properly a gift, but a con. wards moved.

tract, which wanting the natu. The passage in Brookes' ral equivalent or correlative, a Abridgment is as follows: good consideration, the donor If the owner of goods, which cannot be enforced to per• are at York, give them to J.S. form it. who at the time of the gift is The donatio causa mortis, a in London, and before J. S. title of the Roman law, is a have obtained the actual pos- gift by a person, believing himsession of the goods, a stranger self to be at the point of death, takes them, J. S. may maintain to the donee, conditional upon an action of trespass against the death of the donor ; that the stranger; for by the gift is to say, if the donor die, the he acquired a general property donee is to take it in prein the goods. Bro. Tresp. 303. ference of any other. If the Latch. 214. But there is no donor recover, the donation case which goes to the extent does not so much revert, as of stating, that the donor, or not pass. According to the bis representatives, might not best commentators on the Ro. retract a gift unaccompanied man law, it is not an essential with possession.

part of this form of gift, that A true and proper gift is al. the donor should be actually ways accompanied with deli- in a state of dying ; it is very of possession, and takes enough, says Vinnius, if he be effect immediately; as if A. moved to it, sola cogitatione gives to B. 1001. or a flock of mortalitatis, ex sorte humana. sheep, and puts him in posses- But it is essential that the dosion, it is then a gift executed nor should express the condiin the donee; and it is not in

tion of the gift not passing the donor's power to retract whilst he lives; otherwise it it; though he did it without would be a donation of another consideration or recompence. kind ; namely, a donatio inter Jenk. 109. Unless it be pre

vivos. The best authorities in judicial to creditors, or the do- our law, in adopting the Ro. nor were under any legal in- man title, have adopted with it capacity; or if he were drawn the above large interpretation in, circumvented, or imposed of the commentators; extendupon. But if the gift do not ing the title and the legal quatake effect by delivery of im lities of it, to the general con. mediate possession, it is then sideration of mortality. Still

1815.

SPRATLEY

v. WILSON.

7. Chapman, 2 Bro. C. R. 612. templation of death, was held But, being a gift, there must by Lord Hardwicke not to be be an actual delivery by the a good donatio mortis causa. donor in his life-time. Hedges S. C. The donee must have 5. Hedges, Prec. in Chanc. immediate possession of the Lord Cowper's expression was, gift, and uncontrouled domi.

gives with his own hands.” nion over it. Per Lord Ken. Skargold v. Shargold, 2 Ves.

yon, C. J. Hawkins v. Blewitt, 431. “ The delivery must be 2 Esp. 663. Acc. Smith v. actual; a symbolical delivery Smith, 2 Strange 995. will not do.” Thus a deli. Gifts, in any form, are justly very of receipts for S. S. Ann. not in favour with the English made in the donor's last ill. law; being necessarily vague, ness, and expressly in con- and too much open to fraud.

ADJOURNED SITTINGS AFTER TRINITY TERM,

55 GEO. III. IN LONDON.

Back and Another, Assignees of BURROUGH and June 23.

WYNNE v. Gooch.

THIS
WHIS was an action brought to recover a sum If the petition.

ing creditor be of money which the plaintiffs contended the privy and

assenting to defendant had received from the bankrupts pre- the execution vious to their bankruptcy, in fraudulent preference

of a deed by of the other creditors.

which they make an as. signment of all

their property, The act of bankruptcy and the petitioning cre- though such

assignment be ditor's debt were disputed.

fraudulent, and an act of bankruptcy,

upon which The alleged act of bankruptcy was an assign- other credi: ment made by the bankrupts, bearing date the and assenting,

may sue out a commission, he is estopped, and having assented to the deed, though he did not execute it, he cannot set it up as an act of bankruptcy.

1815.

Back and
Another

Gooch.

13th June, 1813, of all their property to trustees for the interest of their creditors; in which deed was contained a provision, that unless all their creditors, whose debts respectively amounted to 301., should come in under the terms of the deed by the 10th of January, 1814, the deed should be void. The bankrupts themselves had executed the deed; but the trustees had not executed it, nor was it signed by any creditor. .

It appeared that the petitioning creditor, together with other creditors of the bankrupts, had employed an attorney in the country to bring actions against them; and the country attorney employed an agent in London, with whom the bankrupts were in negotiation for the arrangement of their affairs. The proposal of the deed of assignment originated in communications between the London agents and the bankrupts. The petitioning creditor knew of the assignment which the agents were preparing, and he frequently called whilst it was in progress,

and expressed no disapprobation. When it was executed by the bankrupts, he recommended a person to the trustees to take possession of the stock of the bankrupts, but he did not execute the deed himself.

The Solicitor General and Onslow Serjeant, for the defendant, contended that this was no act of bankruptcy. It is true the bankrupts convey by this deed all their property to trustees ; but, in order to constitute an act of bankruptcy, such conveyance must be an operative and valid assignment; that is to say, the property must pass out

1815.

of the bankrupts and vest in other persons, subject of course to be impeached upon the principles

Back and of the bankrupt laws; but in every other point of Another. view it must be a valid assignment. There were

Goock three parties to this deed: Ist, the bankrupts ; 2d, the trustees; 3d, the creditors. It is executed by the bankrupts, but it is not executed by the trustees, nor is it signed by any of the creditors; but the deed contains covenants on the part of the trustees which are a consideration for the assignment made by the bankrupts. Till the trustees, therefore, execute the deed, the conveyance is only in fieri ; it is the inception of an assignment, and nothing more. When the trustees execute the deed it is operative, though no creditor come in. This case falls within the principle of Bamford v. Baron, 2 Term Rep. 594. A creditor who executes a fraudulent deed of assignment, which constitutes an act of bankruptcy, cannot avail himself of such assignment as an act of bankruptcy. It is an estoppel to him; any other creditor may insist upon it as an act of bankruptcy, but he is particeps criminis'; he induces the act, and it is the policy of the law to prevent a person who tempts the bankrupt to commit an offence from setting it up as an act of bankruptcy.

Lens, serjeant, and Spankie, contrà.

This case does not fall within the principle of Bamford v. Baron. That case was determined on the ground that the party executed the deed, and having become a party to the instrument, it was not open to him to impeach it. : The assent to the

1815.

Back and
Another

Gooch.

deed is nothing ; it is the execution of it which estops the party, and prevents his setting it aside. The true ground is, not that he tempts the trader to commit an act of bankruptcy, but that he shall not be permitted to set up as fraudulent, a deed which he himself executes. With respect to the. objection that the trustees did not execute the deed, they insisted, that their formal execution was immaterial, inasmuch as they acted upon it.

GIBBS, C. J.-Following up the principle of Bamford v. Baron, I am of opinion that the petitioning creditor cannot avail himself of the execution of this deed as an act of bankruptcy. The deed is a conveyance of all the property of the bankrupts to trustees, and such a deed is void in law, upon this principle, that it takes the affairs of the trader out of his own hands and commits them to the management and controul of other persons. The law will not permit this to be done with a view to defeat the operation of the bankrupt laws. Such a deed, therefore, cannot stand. Many acts done by a trader are void, which are not, therefore, acts of bankruptcy. If a trader deliver over all his goods to trustees by parole, such a delivery will be void upon principle ; but it is no act of bankruptcy, because it is not within the words of the statute 1 James 1. c. 15. The statute intends a fraudulent conveyance, and it is because the conveyance is fraudulent that it constitutes an act of bankruptcy. But the law says, that it cannot be insisted upon as fraudulent by those who assent to it. A creditor, not privy or assenting, may sue out a commission upon it; but none can do it but

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