. *683] *TURNER and Another, Assignees of JOSEPH JUKES, a Bankrupt, v. HARDCASTLE. Jan. 20. A. held a lease of mines of coal and iron-stone, and carried on the business of smelting, adding to the iron ore produced from his own mines from 65 to 70 per cent. of ore which he bought elsewhere and smelted the whole into pig-iron which he sold in the market :-Held, that he was a trader within the meaning of the Bankrupt Act, 12 & 13 Vict. c. 106. A trader, being pressed by a particular creditor, who had issued an execution against him, under which the sheriff had seized, executed an assignment of all his estate and effects for the benefit of his creditors, and in the presence of the party to whom the assignment was made, gave it to his attorney, in order that it might be used, if circumstances should render it necessary, as an act of bankruptcy, and caused notice to be given to the execution-creditor and the sheriff that "he had that day committed an act of bankruptcy :-Held, that the deed operated as a valid act of bankruptcy. Held also, that the general form of notice was sufficient, without stating of what the act of bankruptcy consisted. Whether the validity of the assignment as an act of bankruptcy would have been defeated if it had been shown that the petitioning creditor was aware of the circumstances under which the deed was executed,-quære? A., a trader, purchased a plant and stock under an agreement to pay the purchase-money by instalments, a proper assignment to be executed when the whole of the instalments should have been duly paid, and the vendor having power, in case of default for fourteen days after notice in writing to pay the several instalments, to re-enter, and expel the purchaser, &c. Default having been made in payment of certain instalments, but the vendor not having availed himself of his power to resume possession in the manner provided by the agreement, and A, the vendee, having become bankrupt :-Held, that the assignees of A. were entitled to recover the whole value of the goods, in an action of trover against the wrongdoer. THIS was an action against the sheriff of Denbighshire for seizing and selling the goods of Joseph Jukes under a writ of fi. fa. on a judgment obtained against Jukes in an action at the suit of John Henry Barber and William Henry Ellis. money The declaration contained a count in trover and a count for had and received and on an account stated. The defendant pleaded, amongst other pleas, a denial that the plaintiffs were assignees and that the goods were the goods of the plaintiffs as such assignees; and he gave notice of his intention to dispute the trading, the act of bankruptcy, and the petitioning creditor's debt. The cause was tried before Erle, C. J., at the sittings in London after last Trinity Term, when the following facts appeared in evidence: Some time prior to the year 1859, a trading company called The Ponkey Iron Company, Limited, who carried on the business of *684] *iron-smelting at Ruabon, in Denbighshire, mortgaged their works and the lease of certain mines there to one Michael Cooke for 96007. Michael Cooke's interest in this mortgage afterwards by assignment became vested in one Robert Cooke. On the 8th of September, 1859, Robert Cooke, under the power of sale contained in the mortgage-deed, and with the consent of the Company, sold all the property comprised in the mortgage to one Joseph Jukes (who had acted as manager for the company), Jukes at the same time covenanting to indemnify the Company, and the latter assigning to Jukes the stock of iron and other materials on the works which were not comprised in the mortgage. By the terms of the agreement of the 8th of September, 1859, between Robert Cooke and Jukes, 54001 of the purchase-money (70007.) for the mines and plant was to be paid by certain instalments; and it was stipulated, that. when the whole of the purchase-money and interest had been paid, Robert Cooke should execute to Joseph Jukes an assignment of all his interest in the property; but that, in case default should be made in payment of any of the instalments, and notice in writing should be given by Robert Cooke requiring payment, and further default should be made for fourteen days after such notice, it should be lawful for Robert Cooke, without any previous demand of possession of the premises, to re-enter the same, and the said Joseph Jukes and all other persons therefrom to expel, as effectually as any sheriff might do in case the said Robert Cooke had obtained a judgment in ejectment for recovering possession thereof. After the purchase, Joseph Jukes carried on the business of smelting at the works in question upon his own account, raising ore from the mines, which he mixed with ore obtained from Northamptonshire and converted into pig-iron and sold,-the proportion of *foreign ore which he purchased being about 65 or 70 per cent. [*685 to about 30 to 35 per cent. of ore produced from his own mines. The object of so mixing the ores was to improve the quality of the iron and make it more marketable. The act of bankruptcy upon which the plaintiffs relied, was, the execution by Joseph Jukes on the 4th of July, 1860, of a deed whereby he professed to assign all his estate and effects to his son William Henry Jukes, in trust for the benefit of all his creditors. The circumstances under which this deed was executed were as follows:-Joseph Jukes was largely indebted to Messrs. Barber & Ellis, who had obtained a judgment and had issued a fi. fa. and had delivered it to the sheriff with an endorsement to levy 26047. 4s. Under this writ the sheriff seized Joseph Jukes's property on the 27th of June, 1860. At this time a negotiation which had been pending between Joseph Jukes and Messrs. Barber & Ellis for a partnership was broken off. On the 4th of July, Joseph Jukes, accompanied by his son William Henry Jukes (to whom the father was indebted in a considerable sum for wages and for money lent), went to Liverpool to consult his attorney, Mr. Evans, as to the best course to be pursued to prevent Barber & Ellis's execution sweeping away the whole of his property. He there saw Mr. Evans, who advised an act of bankruptcy; and ultimately it was arranged that Joseph Jukes should execute an assignment, which Mr. Evans at once prepared, whereby all his estate and effects were conveyed to William Henry Jukes in trust for all the creditors and on the following day Messrs. Barber & Ellis and the defendant (the sheriff) were severally served with the following notice: [*686 Take notice that Joseph Jukes, of Ruabon, in the county of Denbigh, has this day committed an *act of bankruptcy. Dated this 4th day of July, 1860. "EVANS, SON, & SANDY, "Solicitors for the said Joseph Jukes." Mr. Evans, who was called as a witness at the trial, stated, that, at the time this deed of assignment was prepared, hopes were entertained that arrangements might still be made to avoid bankruptcy; that he (Evans) at first thought of getting Jukes to file a declaration of insolvency, but, after consideration, he suggested the execution of a deed of assignment, in preference, as he did not wish to have a general act of bankruptcy of which any one could have taken advantage; and that it was not intended that the deed should be used as an act of bankruptcy unless circumstances should render it necessary, but that the estate should, if requisite, be administered and the affairs wound up under the deed, On the 6th of July, Barber & Ellis took from the sheriff an assignment of the greater part of the property seized, for the amount endorsed on the writ. They kept the sheriff's officer in possession, and caused the property so assigned to them to be sold by public auction on the 17th, 18th, and 20th. On the 14th of July, Joseph Jukes was adjudicated bankrupt as an iron master, on the petition of his son, Arthur Jukes, who was also a creditor of his father. The act of bankruptcy upon which the adjudication proceeded, was, a declaration of insolvency,-there being no time to get the deed of assignment stamped. Arthur Jukes swore at the trial that he was not privy to the assignment to his brother, and that he himself did not go to Liverpool until he went there for the purpose of making his father a bankrupt. After the assignment from the sheriff to Barber & Ellis, but before *687] the property was sold, Robert Cooke, *the assignee of the mortgage, gave notice to all the parties of his claim under the deed of the 8th of September, 1859, default having been made in payment of several of the instalments, and a considerable portion of the purchase-money remaining unpaid. On the part of the defendant, it was objected that there was no evidence of any trading, nor of any act of bankruptcy prior to the 6th of July, 1860, the date of the assignment to Barber & Ellis,—that there was no sufficient notice of an act of bankruptcy, and that, with the exception of the movable articles, the legal interest in the mines, plant, and machinery was in Robert Cooke, and not in the plaintiff's as assignees under the fiat. Reliance was also placed upon a letter of the 9th of April, 1860, whereby the bankrupt had agreed to assign all his interest in the property to Barber & Ellis: but this the bankrupt stated formed part of the negotiation for the proposed partnership. A verdict was taken for the plaintiffs for 26047. 4s., leave being reserved to the defendant to move to enter a verdict for him, or reduce the damages to 7507., the agreed value of the movable articles. Knowles, Q. C., accordingly, in Michaelmas Term last, obtained a rule nisi to enter a verdict for the defendant, or to reduce the damages to 750l.; or for a new trial, on the grounds,-first, that there was no proof of trading by the bankrupt,-secondly, that the assignment of the 4th of July, 1860, was not an act of bankruptcy,-thirdly, that the petitioning creditor Arthur Jukes must be taken to have been privy and assenting to the assignment of the 4th of July,-fourthly, that there was no sufficient notice of the act of bankruptcy,-fifthly, that the property seized had been charged by the bankrupt to Barber & Ellis, sixthly, that the property seized, except to the value of 7501, *was in Cooke. He referred to Port v. Turton, 2 Wils. 169, *688] Sutton v. Weeley, 7 East 442, Dutton v. Morrison, 17 Ves. 193, 1 Rose 213, Heane v. Rogers, 9 B. & C. 577 (E. C. L. R. vol. 17), 4 M. & R. 486, Marshall v. Barkworth, 4 B. & Ad. 508 (E. C. L. R. vol. 24), 1 N. & M. 279 (E. C. L. R. vol. 28), Bowker v. Burdekin, 11 M. & W. 128, and Hope v. Meek, 10 Exch. 829.† Macauley, Q. C., and Quain showed cause.-1. The bankrupt clearly was a trader. The cases which have decided that a man does not become a trader by merely preparing for the market and selling the produce of his own land, even though he purchase goods to be used therewith, the goods so bought by him being merely subordinate to the rendering his own produce available, have no application to the present case. Here, the bankrupt, who was formerly manager of the Ponkey Iron Company, which was a trading Company, having succeeded to the business, continued to carry it on as they had done. Ore from Northamptonshire was purchased by him and smelted in combination with the ore from his own mines, in the proportion of about 65 to 70 per cent. of the former to 30 or 35 per cent. of the latter. To bring him within the exemption, he must be substantially the manufacturer of the produce of his own land, whether it be clay or coal or iron-stone. Thus, in Port v. Turton, 2 Wils. 169, it was held that one who buys a coal-mine, and sells the coals, is not a trader within the statutes of bankrupt. "The buying and selling," says Pratt, C. J., "which is within those statutes, is to be confined to persons who live by a credit gained on an uncertain capital stock." Serjt. Davy in the course of the argument there refers to a case in which he says that, on December 19, 1707, "Lord Cowper détermined that a buyer of coals in the mine is not a trader within the statutes of bankrupt; but, if he sells them again with others that he bought at market, then he becomes a trader within *the statutes of bankrupt." In Ex [*689 parte Harrison, 1 Bro. C. C. 173, 178, where the question was whether a man who made bricks from his own land and sold them was a trader, Lord Thurlow says: "The case of Watkins v. Caddel (B. R. 14 Dec. 19 G. 3) is only a dictum, since there the bankrupt bought iron. The case of the iron-master would be like that of the sugarbaker, who had the plantation. I should think, if it was brought to a neat question, and the jury thought he only meant to bring his own produce to perfection, they would be right not to find him a bankrupt; but it would be very difficult to bring that idea before a jury, and the question would be whether the man meant to carry on a trade, or merely to meliorate the produce of his own estate.' Can it be said that this man was buying the large proportion of foreign ore for the mere purpose of meliorating the produce of his own mines? Is he not substantially a buyer of the raw material of the article he vends? [WILLIAMS, J.-If he smelted what he bought, and sold the produce, he clearly would be a trader. Is he less a trader because he adds to it some ore which is raised from his own land?] That is the proper test. In Wells v. Parker, 1 T. R. 34, it is laid down, that, if a man exercise a manufacture from the produce of his own land, as a necessary or usual mode of enjoying that produce, he shall not be considered as a trader, though he buy necessary ingredients to fit it for the market; but, where the produce of the land is merely the raw material of a manufacture, and the manufacture not the necessary mode of enjoying the land, there he is a trader. The cases upon which the main reliance will be placed on the other side, are, Sutton v. Weeley, 7 East 442, and Heane v. Rogers, 9 B. & C. 577 (E. C. L. R. vol. 17), 4 M. & R. 486. In the former it was held that a devisee for life of an estate, part of which was a brick-ground, making bricks for sale there generally, with a view to profit, is not a *trader within the bank *690] rupt laws, though he purchased the coals and some of the wood used in burning the bricks, and had occupied the same ground as a brickmaker for general sale before the same came to him by devise; for, this was but a more beneficial mode of enjoying his own estate, by carrying the soil to market in an ameliorated state, and was not a buying of any commodity to sell it again; nor did it fall within the principle of the bankrupt laws, which were levelled against those who, getting other men's goods into their hands, obtain credit upon and consume the same. And in the latter, the plaintiff, about two years before the issuing of the commission, had entered into an agree ment for the purchase of five acres of land; one of the terms of the agreement being that 4s. for every 1000 bricks made on the land should be paid to the vendor, in part of the purchase-money. The plaintiff made bricks from the clay dug from the land. During part of the time he was in partnership with two others, who had no legal or equitable interest in the land, but that partnership had been dissolved before the issuing of the commission: and it was held that the plaintiff was not a person liable to the bankrupt laws, within the meaning of the 6 G. 4, c. 16, s. 2. In Sutton v. Weeley, Lord Ellenborough draws a distinction between the case in hand and Ex parte Harrison and Wells v. Parker. "This case," he says, " is, as was contended by the defendants' counsel in his argument, distinguishable from the case of Ex parte Harrison, where a brickmaker, having taken earth from the waste, and having made a compensation on that account to the lord, was found by the jury to be a trader; and from that of Wells v. Parker, in which the opinions of the King's Bench and Common Pleas differed, and on which in the House of Lords there was ultimately no decision; inasmuch as in both those cases the earth employed in making bricks was acquired for that very *691] *purpose: and it is not necessary to say what would be our opinion if a case similarly circumstanced to the one or the other should come before us. In the present case Weeley, by devise, took a freehold interest in the brick-earth, and can in no way be considered as buying anything which he sold again; but, like a burner of his own chalk or rock into lime, the smelter from his own mines of iron or lead ores into pigs, or the manufacturer of his own rock into alum, appears to have merely carried his own soil to market in some way manufactured." And Bayley, J., in delivering the judgment of the Court in Heane v. Rogers, referring to the earlier Bankrupt Acts, says: "Under these Acts of Parliament, a series of cases ending with Ex parte Gallimore, 2 Rose, B. C. 424, established the rule, that, if a person make bricks on his own estate, and sell them as a mode of enjoying the profits of real estate, he is no trader, and it makes no difference whe ther he is a freeholder or termor; if he uses this business to make a profit of the soil, which he has as his own, whatever his interest in that soil be, he does not make profit, or, in the language of the statute, 'seek his living' by buying and selling; and therefore he is not liable to the bankrupt laws in that character. But, where brick-making is carried on substantially and independently as a trade, he would be |