liable; that is, if a man buy the brick-earth as a chattel (and, perhaps, if he bought the brick-earth only to be consumed by himself, it might be considered as the purchase of a chattel), and, purchasing the other necessary materials, sells the bricks made with that earth, he is a trader; for, he is a person seeking his living by buying and selling goods." The distinction laid down by Lord Eldon in Ex parte Gallimore, is, that a man,, whether termor or freeholder, who sells bricks made from the produce of his soil, is not a trader, within the bankrupt laws; but he is, if he purchases the materials *of his [*692 manufacture. Crawshay v. Maule, 1 Swanst. 495, has an important bearing on this case. There, R. C., being in possession of mines and iron-works held under leases of unequal duration, by his will bequeathed 25,000l. to B., “as capital for him to become a partner with my executor of one fourth share in the trade of all those works, so long as the lease endures," with a devise to H. and his wife of the residue of his estates, real and personal: by a codicil the testator gave to W. C. three-eighths of the concern at the iron-works, "so the partnership will stand at my decease, W. C. three-eighths, H. three-eighths, B. two-eighths:" after the testator's death, W. C., H., and B. carried ou the works for two years, selling iron manufactured not only from the produce of their mines, but from ore and old iron purchased for the purpose of manufacture and resale: B. having then assigned his share to C., the business was carried on in like manner by C. and H. till the death of the latter: and it was held, that the concern was not a mere joint interest in land, but a partnership in trade. [ERLE, C. J.-Does it appear what was the proportion of ore and old iron purchased there?] No.(a) By the assignment from the Ponkey Iron Company to Michael Cooke, of the 17th of November, 1858, it [*693 is plain that the interest conveyed was merely a license to dig the iron-stone, &c., at royalties.

2. It is said that the deed of the 4th of July, 1860, was not under the circumstances stated in Mr. Evans's evidence an act of bankruptcy; for that it was not delivered unconditionally, but rather as an escrow : and much reliance is placed upon the case of Bowker v. Burdekin, 11 M. & W. 128.† All that that case, however, decides, is, that it is not necessary that there should be express words used to denote a delivery of a deed as an escrow; but that such conditional delivery may be established by circumstances. The circumstances connected with the execution and delivery of this deed were in substance these:-Barber

(a) The affidavit of Mr. Crawshay (see 1 Swanst. 524), in explanation of the nature of the business, stated "that the produce of the mines consisted of iron-stone, coal, and limestone; and that, at the works, large quantities of iron (of various specified descriptions) had been and were manufactured, sometimes from the materials obtained from the leasehold premises in question, and sometimes from pig-iron and finers' metal purchased in London, Plymouth, and Bristol; and that, from the establishment of the works, the proprietors had been in the habit of making very considerable purchases of iron ore from Lancashire, pig-iron, and finers' metal, and of old wrought iron, naval and ordnance stores, for the purpose of manufacturing the same at the works into various sorts of iron, and reselling them in that manufactured state; that such purchases (to a large amount), manufacture, and resale had been made by the successive firms of Crawshay, Hall & Bailey, and Crawshay & Hall, during their respective partnerships: and that the whole of such purchases were made with view to profit, by manufacturing the same at the works into bar and other iron for resale, and not merely for mixing the same with the iron the produce of the works for the purpose of improving the iron of the works, or bringing the same better to market."

& Ellis had a judgment against the bankrupt. Negotiations had been going on between them for a partnership, which were broken off, and to the bankrupt's surprise an execution was put into his premises at the suit of Barber & Ellis on the 27th of June. On the 4th of July, the bankrupt consulted his attorney, Mr. Evans, who, finding that the sheriff was making preparations to sell, recommended him to commit an act of bankruptcy,-the object being to do something which would effectually defeat the execution and stop the sale. Accordingly the deed was drawn up and executed, and left in the hands of Mr. Evans, to be made use of *as circumstances might render necessary:

*694] and on the same day a general notice was given that an act of

bankruptcy had been committed. That the act of bankruptcy was concerted is no objection; 12 & 13 Vict. c. 106, s. 115.(a) [ERLE, C. J.Does the thing become invalid as a deed because it was not intended to be acted upon?] Clearly not. [WILLIAMS, J.-The primary object of the deed was that it should operate instanter. I do not see how it can be an escrow. ERLE, C. J.-The bankrupt never meant that it should take effect as an assignment, if the notice to the execution-creditors and to the sheriff had the effect of stopping the sale. It was not stamped until afterwards.] How can the rights of the creditors to rely upon this deed as an act of bankruptcy be affected by an arrangement between the bankrupt and his attorney that the transaction should be concealed and be only brought to light in a given event? The definition of an "escrow" is thus given in Sheppard's Touchstone, p. 58,-"The delivery of a deed [writing] as an escrow is said to be where one doth make and seal a deed [writing] and deliver it unto a stranger until certain conditions be performed, and then to be delivered to him to whom the deed [writing or grant] is made, to take effect as his deed. And so a man may deliver a deed, and such a delivery is good. But in this case two cautions must be heeded. 1. That the form of words used in the delivery of a deed in this manner be apt and proper. 2. That the deed be delivered to one that is a stranger to it, and not to the party himself to whom it is made. The words, therefore, that are used in the delivery must be after this manner: I deliver this [writing] to you as an escrow *695] *[namely, scriptum, a mere writing; thus negativing the appli cation to the terms of a perfect deed], to deliver [it] to the party as my deed, upon condition that he do deliver to you 207. for me, or upon condition that he deliver up the old bond he hath of mine for the same money, or as the case is. Or else it must be thus: I deliver this as an escrow to you, to keep until such a day, &c., upon condition that if before this day he to whom the escrow is made shall pay to me 107., or give to me a horse, or infeoff me of the manor of Dale, or perform any other condition, that then you shall deliver this escrow to him as my deed. For, if, when I shall deliver the deed to the stranger, I shall use these or the like words: I deliver this to you as my deed, and that you shall deliver it to the party upon certain conditions: or, I deliver this to you as my deed, to deliver to him to whom it is made when he comes to London: in these cases the deed doth take effect presently [because the party hath made the writing (a) It was otherwise formerly: see Marshall v. Barkworth, 4 B. & Ad. 508 (E. C. L. R. vol. 24).

his deed by the mode of delivery; for, as he has delivered the writing as his deed, the writing shall have that effect], and the party is not bound to perform any of the conditions [and its operation cannot be defeated or suspended by reason of the conditions; but equity will relieve if the conditions be not performed.] So it must be delivered to a stranger: for, if I seal my deed and deliver it to the party himself to whom it is made, as an escrow, upon certain conditions, &c., in this case, let the form of the words be what it will, the delivery is absolute, and the deed shall take effect as his deed presently, and [in reference to the legal operation of the deed], the party is not bound to perform the conditions; for, in traditionibus chartarum, non quod dictum sed quod factum est inspicitur." To whom was this deed given? The father and son went together to the attorney's office: *the assignment was prepared and executed and handed to the attorney, to be used by him as the attorney of the [*696 son, as circumstances might render it necessary. In Doe d. Garnons ". Knight, 5 B. & C. 671 (E. C. L. R. vol. 11), 8 D. & R. 348 (E. C. L. R. vol. 16), it was held that delivery to a third person for the use of the party in whose favour a deed is executed, where the grantor parts with all con- . trol over the deed, makes the deed effectual from the instant of such delivery, although the person to whom the deed is so delivered be not the agent of the party for whose benefit the deed is made. That was followed by Grugeon v. Gerrard, 4 Y. & C. 119,† where A., being indebted to his bankers, executed a deed purporting to be a mortgage to them for securing the debt: after executing it, he delivered it to his attorney, who retained it in his possession till A.'s bankruptcy, which occurred about a month afterwards: the attorney then delivered it to the mortgagees: and it was held that this was a good delivery by A. to the mortgagees. In Jeffries v. Alexander, 31 L. J., Chan. 9, A. executed a deed, by which, reciting that he was desirous of founding certain charities, he covenanted with certain persons therein named, in his lifetime and within twelve calendar months, to invest 60,0007. in the names of the covenantees, or that his executors should, without prejudice to his debts and the legacies to be given by his will, do so within twelve months after his death. The deed then declared the charitable trusts. A. executed another deed of similar import. On the same day he made his will. He never communicated to anybody the existence of these deeds, but kept them till the day of his death in his own bureau. When he believed himself to be dying, he said where a paper parcel was to be found which contained his will. The parcel was found: it contained the two deeds and the will, together with a memorandum explaining the *true object of the deeds, and [*697 directing two individuals specially named to be placed on the funds of the charity. His property almost entirely consisted of chattels real. It was held that the indenture was a deed, and not a testamentary disposition; but that it was a deed affecting his assets, and that, as these assets were chattels real, it could not be carried into effect, being void under the Mortmain Act.

3. Then it is said that the petitioning creditor, Arthur Jukes, must be taken to have been privy and assenting to the assignment of the 4th of July, 1860, and therefore no act of bankruptcy could be

founded upon it. upon it. [ERLE, C. J.-There was no evidence that Arthur Jukes had any knowledge of the assignment.]

4. The next objection is that there was no sufficient notice of the act of bankruptcy. In Udal v. Walton, 14 M. & W. 254,† it was held that a notice by a bankrupt to an execution-creditor, that "he had committed several acts of bankruptcy," was a sufficient notice of a prior act of bankruptcy, within the 2 & 3 Vict. c. 29; and that the notice need not state the nature or particulars of any act of bankruptcy.(a) [ERLE, C. J.-We must leave this point to be disposed of by the Court of error.]

5. Then it is said that the property seized had been charged by the bankrupt to Barber & Ellis. That supposed charge is by the bankrupt's letter of the 29th of April. 1860, which it is said was an engagement to assign which a Court of equity would enforce. That letter, however, according to the bankrupt's evidence, was written as part of the arrangement for the proposed partnership.

6. As to the reduction of damages. The agreed value of

*698] the property conveyed by the bill of sale by the sheriff to

- Barber & Ellis, the execution-creditors, was 26047. 4s.; of that, goods to the value of 7501. were put upon the premises by the bankrupt, and it is sought to reduce the damages to that amount, on the ground that the property in the effects comprised in the agreement of the 8th of September, 1859, belonged to Cooke. The sheriff, however, has no right to set up a title which Cooke himself does not set up. The bankrupt was in the lawful possession of the property, with the assent of Cooke, in the character of purchaser. Until default in payment of the instalments, and a demand in writing, and default for fourteen days after such demand, Cooke could not have resumed possession. [KEATING, J., referred to Leake v. Loveday, 4 M. & G. 972 (E. C. L. R. vol. 43), 5 Scott N. R. 908. There, A., in 1837, bought goods of B., and allowed B. to remain in possession of them up to 1839, when B. became bankrupt: B.'s assignees made no claim, and B. retained possession of the goods till 1841, when the sheriff under a fi. fa. against B. seized and sold them: after the sale, B.'s assignees gave notice of their claim to the sheriff, who, upon receiving an indemnity, handed over the proceeds to them: in trover by A. against the sheriff, it was held, that, under the plea of not possessed, the sheriff might set up the title of the assignees. WILLES, J.-Brierly v. Kendall, 17 Q. B. 937 (E. C. L. R. vol. 79), is a very important case. By indenture of sale, A. assigned all his household goods, &c., to secure a debt due from him to the assignees, subject to a proviso that the deed should become void upon payment of the said sum on a certain day, or on some earlier day to be appointed by the assignees by notice in writing, to be served on A. twenty four hours before the day of payment so appointed interest to be paid in the mean time. It was also agreed by the deed, that, after *default maue in payment contrary to the *699] said proviso, it should be lawful for the assignees to enter and take possession of the goods, and to sell them and reimburse themselves out of the proceeds, accounting to A. for any surplus; and that, until such default, it should be lawful for A. to hold, use, and possess (a) See Conway v. Nall, 1 C. B. 643 (E. C. L. R. vol. 50), Pennell v. Stephens, 7 C. B. 987 (E. C. L. R. vol. 62), and Hope v. Meek, 10 Exch. 829.†

the said goods, without hindrance from the assignees. The assignees served A. with a notice to pay on a day earlier than that named in the deed, and afterwards entered and took and sold the goods assigned: but the notice was bad, having been served less than twenty-four hours before the day of payment appointed by the assignees. It was held that A. had, under the deed, the right of possession of the goods, defeasible only by default in payment after due notice; and that he might therefore sue the assignees in trespass for having wrongfully entered and sold; and that, in such action, the measure of damages should be, not the value of the goods, but the value of the plaintiff's interest in them at the time of the trespass. Lord Campbell there says: "The mortgagee could not bring trespass or trover; the mortgagor therefore could; and that either against a third party who was a wrongdoer, or against the mortgagee if he became a wrongdoer by entering without having given the proper notice. I have as little doubt that the value of the goods is not the proper measure of damages. If the action had been against a third party, the case would have been different: but here it would be manifestly unjust to adopt such a test.]

cessary

Knowles, Q. C., and T. Jones, in support of the rule.-1. It is unneto go into any very minute examination of the' cases: the true result of them all is, that one who manufactures and sells the produce of his own land, does not thereby become a trader within *the [*700 meaning of the bankrupt laws, even though he purchases other articles to mix therewith in order to complete the manufacture or meliorate the article produced. In none of the cases is any point made of the proportion which the purchased article bears to the produce of the party's own land: it is enough if the foreign article is bought for the purpose of using the produce of the land more advantageously. "The person," says Pratt, C. J., in Port v. Turton, 2 Wils. 169, "who shall be deemed a bankrupt is thus described, viz. first, he must be a person using trade of merchandise, &c.; or, secondly, one seeking his living by buying and selling. By buying and selling what? Surely not by buying an interest in land, and selling the profits thereof: this can never come within the idea of using the trade of merchandise, or getting a living by buying and selling, in the sense of the legislature. From the idea we have of merchandise, the line may be drawn between the landowner and the merchant. One would wonder there could ever have been any doubt about a farmer; for, if every buyer and seller was liable to be a bankrupt, many of the first persons in the kingdom might be liable to be so. Whatever the owner of the land in fee may do, surely he who rents it may do the same: if the former may be a buyer and seller, and not be liable to be a bankrupt, why may not the farmer be so also? His tilling the land, husbandry and stock on his farm, are known to everybody, yet he seeks his living by buying and selling: so, an innkeeper, a victualler, and an alehouse-keeper, get their living by buying and selling; but their way of buying and selling is not within the meaning of any of the statutes of bankrupt: the buying and selling which is within those statutes is to be confined to persons who live by a credit gained on an uncertain capital stock." [KEATING, J.-Was it shown that the ore raised from the mines in question would not if smelted

[*701