1815. SPRATLEY v. WILSON. This case was not afterwards moved. The passage in Brookes' Abridgment is as follows:If the owner of goods, which are at York, give them to J. S. who at the time of the gift is in London, and before J. S. have obtained the actual possession of the goods, a stranger takes them, J. S. may maintain an action of trespass against the stranger; for by the gift he acquired a general property in the goods. Bro. Tresp. 303. Latch. 214. But there is no case which goes to the extent of stating, that the donor, or his representatives, might not retract a gift unaccompanied with possession. A true and proper gift is always accompanied with delivery of possession, and takes effect immediately; as if A. gives to B. 100%. or a flock of sheep, and puts him in possession, it is then a gift executed in the donee; and it is not in the donor's power to retract it; though he did it without consideration or recompence. Jenk. 109. Unless it be prejudicial to creditors, or the donor were under any legal incapacity; or if he were drawn in, circumvented, or imposed upon. But if the gift do not take effect by delivery of immediate possession, it is then not properly a gift, but a contract, which wanting the natural equivalent or correlative, a good consideration, the donor cannot be enforced to perform it. The donatio causa mortis, a title of the Roman law, is a gift by a person, believing himself to be at the point of death, to the donee, conditional upon the death of the donor; that is to say, if the donor die, the donee is to take it in preference of any other. If the donor recover, the donation does not so much revert, as not pass. According to the best commentators on the Roman law, it is not an essential part of this form of gift, that the donor should be actually in a state of dying; it is enough, says Vinnius, if he be moved to it, sola cogitatione mortalitatis, ex sorte humana. But it is essential that the donor should express the condition of the gift not passing whilst he lives; otherwise it would be a donation of another kind; namely, a donatio inter vivos. The best authorities in our law, in adopting the Roman title, have adopted with it the above large interpretation of the commentators; extending the title and the legal qualities of it, to the general consideration of mortality. Still *. Chapman, 2 Bro. C. R. 612. But, being a gift, there must be an actual delivery by the donor in his life-time. Hedges v. Hedges, Prec. in Chanc. Lord Cowper's expression was, "gives with his own hands." Skargold v. Shargold, 2 Ves. 431. "The delivery must be actual; a symbolical delivery will not do." Thus a delivery of receipts for S. S. Ann. made in the donor's last illness, and expressly in con ADJOURNED SITTINGS AFTER TRINITY TERM, 55 GEO. III. IN LONDON. BACK and Another, Assignees of BURROUGH and June 23. WYNNE v. GOOCH. TH ing creditor be privy and HIS was an action brought to recover a sum If the petitionof money which the plaintiffs contended the defendant had received from the bankrupts pre vious to their bankruptcy, in fraudulent preference of the other creditors. the execution traders, by assenting to of a deed by which they make an assignment of all their property, The act of bankruptcy and the petitioning cre- though such ditor's debt were disputed. assignment be fraudulent, and an act of bankruptcy, upon which The alleged act of bankruptcy was an assign- other crediment made by the bankrupts, bearing date the and assenting, tors, not privy 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 v. 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 30l., 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. Another V. Goock 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 view it must be a valid assignment. There were three parties to this deed: 1st, 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 v. 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 |