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by itself make a merchantable commodity?] There was no such evidence: but it is well known that it is what every smelter of iron ore does. This is apparent from the case of Crawshay v. Maule, 1 Swanst. 495. The question is whether the purchase of the foreign article was subservient to the purpose of making the produce of the land more valuable: Ex parte Harrison, 1 Bro. C. C. 173. In Heane v. Rogers, 9 B. & C. 577 (E. C. L. R. vol. 17), 4 M. & R. 486, where one who manufactured bricks from clay dug from his own land was held not to be a trader within the meaning of the bankrupt laws, Bayley, J., in delivering the judgment of the Court, says: Under the old Acts of Parliament, the plaintiff would not have been a trader; nor is he under the new Act of Parliament 6 G. 4, c. 16, as a person 'seeking his living by buying and selling.' But this statute has additional words, including those who seek their living by the workmanship of goods or commodities:' but the case of Ex parte Burgess, 2 Glyn & J. 183, has decided that they do not include a person making bricks on his own estate: these words appear to have been introduced to meet the case of persons who do not buy and sell, and yet have other men's goods intrusted to them (so as to bring them within the principle of the bankrupt laws), such as bleachers and fullers, lacemakers, and stocking-makers, who make for others, and the like; but do not include those who use workmanship on goods as part of the profits of land, such as farmers making cheese or cider, alum-makers, &c.; and we concur with the judgment of the present Lord Chancellor in that case, and therefore are of opinion that the plaintiff was not a trader." So, in Ex parte Atkinson, 1 Mont. D. & De Gex 300, A., in conjunction with T., took a lease of certain salt-works and brine-pits,

for the purpose of *manufacturing and selling salt, which was *702] made by them chiefly from the springs and rock-salt upon the premises demised, but some of the brine they obtained by channels from adjoining premises; and it was held that this was not a trading, as a "workmanship of goods and commodities," within the meaning of the 6 G. 4, c. 16, s. 2.

2. The circumstances under which the assignment of the 4th of July, 1860, was executed clearly preclude it from operating as an act of bankruptcy. In all the modern cases, it has been held, that, where the circumstances attending the execution of a deed are such that there was no intention that the delivery should be complete, the deed will have no immediate operation. Thus, in Bowker v. Burdekin, 11 M. & W. 128, it was held that it is not necessary that the delivery of a deed as an escrow should be by express words: if from the circumstances attending its execution it can be inferred that it was delivered not to take effect as a deed until a certain condition was performed, it will operate as a delivery as an escrow only. See the position of the parties here. Barber & Ellis had seized. The bankrupt was anxious to renew the negotiations for a partnership: and this deed was resorted to as a device to prevent their execution from sweeping away all the property,-to be used or not, as circumstances. might make it convenient. If the delivery had been complete, any creditor might have done what Mr. Evans said was intended not to be done. The suggestion made on the part of the plaintiffs would evi

dently have defeated that intention. They were anxious to avoid a bankruptcy.

3. It must be conceded that there was no direct evidence that Arthur Jukes, the petitioning creditor, took any active part in procuring the execution of the assignment: but it is impossible to look at the evidence *without seeing that the bankrupt's two sons [*703 were mere puppets in the hands of the attorney, to carry out the scheme concocted by him. They were both in the bankrupt's employ at weekly wages. When William Henry Jukes went with his father to Liverpool, he did not know what he was going for. And it is equally clear, that, when Arthur Jukes applied for the adjudication of bankruptcy, he was acting by the instructions and under the influence of his father.

4. No doubt there are cases which show that a general notice that an act of bankruptcy has been committed is sufficient. But in Hope v. Meek, 10 Exch. 829, 845,† the notice was not so general as it was here and Parke, B., in delivering the judgment of the Court, expresses himself in a very guarded manner. "Where," he says, "an act of bankruptcy has been in fact committed, any communication which brings to the knowledge of the execution-creditor before the sale the alleged fact that an act of bankruptcy has been committed, in a way which ought to induce him as a reasonable man to believe that the notification was true, is in our judgment a sufficient notice." [Erle, C. J.-We must decide this point in accordance with the current of the authorities.]

5. The letter of the 9th of April, 1860, amounts to an equitable assignment of all the plant to Barber & Ellis, which they might have enforced in equity. [ERLE, C. J.-The strong probability is, that that was written, as the bankrupt suggested, as part of the contemplated arrangement for a partnership. At all events, if Barber & Ellis had looked upon it as an equitable assignment, there was no necessity for their afterwards resorting to the fi. fa. If it had been intended to rely upon this at the trial, the question should have been submitted to the jury.] The construction of that letter could hardly be a question for the jury.

*6. At all events, the plaintiffs can only be entitled to 750, the value of the coals and other things which had been brought [*704 to the premises by the bankrupt. The fixtures and machinery did not belong to the bankrupt. At the utmost, he could only have an equitable charge to the extent of the instalments of the purchasemoney which he had paid: and the assignees only take what the bankrupt was equitably as well as legally entitled to: Mogg v. Baker, 3 M. & W. 195.t

ERLE, C. J.-With respect to all the points except that which relates to the reduction of the damages, we propose to give our judg ment at once, reserving that for a few days to enable us to look into the cases. The first question is, whether the bankrupt was a trader within the meaning of the Bankrupt Act. The facts appeared to be these:-The bankrupt had a lease of certain land together with the veins of coal and iron-stone thereunder; and he carried on the business of smelting'iron there, using about 30 or 35 per cent. of the ore the produce of his own land, mixed with from 65 to 70 per cent. of

Staffordshire ore which was purchased by him for the purpose of meliorating the produce of his own land, which was manufactured and sold by him as pig-iron. Taking these facts, and looking at the authorities on the subject, I incline to think that the bankrupt was a trader, one who got his living by buying and selling. As to all the large quantity which he bought, he bought it to sell again, and in respect of that he clearly was a trader. No doubt, the ore he bought was in some degree purchased for the purpose of improving the produce of his own land. His stock in trade consisted partly of his purchases and partly of the produce of his own mines. I do not think the circum*705] stance of the *infusion of some portion of the produce of his own land with the ore he bought prevents his being a trader in respect of the goods which he so bought and sold. Take the case of a farmer, also carrying on the business of a corn-factor, buying large quantities of corn, and mixing it with the proceeds of his own farm, and selling the whole: he clearly would be a trader in respect of such dealings. I am not aware of any authority which would justify me in holding that Jukes was not a trader subject to the bankrupt law. Then, was the deed of assignment of the 4th of July, 1860, an act of bankruptcy? It is clear that an assignment by a trader of all his stock in trade for the benefit of his creditors is an act of bankruptcy. Much discussion has taken place as to whether that deed was intended to operate as a deed at all, or was only intended so to operate in the event of a certain state of things supervening. It appears to me, however, that the facts show that it was intended to operate as an absolute deed from the beginning. There had been a negotiation for a partnership between Barber & Ellis and Jukes, which had gone off; and Barber & Ellis, who had obtained a judgment against Jukes, issued a fi. fa. thereon, the execution of which it was extremely desirable to prevent. The only course which suggested itself to the mind of Jukes's legal adviser to effect that object, was, to get up an act of bankruptcy, and to give notice of it to the sheriff, so as to prevent a sale under the execution. The intention that the deed should operate at once as a transfer or assignment was therefore of the very essence of the transaction; for it was impossible to defeat the execution, except by an act of bankruptcy prior to the sale, and notice. thereof. Accordingly, on the 4th of July, 1860, the assignment from Jukes to his son was made, and notice was immediately given both to Barber & Ellis and to the sheriff *that an act of bankruptcy *706] had been committed. Mr. Evans, Jukes's attorney, thoroughly explains what passed with reference to this deed, and what was the intention of the parties regarding it. He says: "I thought first of a declaration of insolvency, but finally decided on this deed of assignment, because I did not wish to have a general act of bankruptcy of which every one could take advantage." It was possible that Messrs. Barber & Ellis might come to terms; in which case the deed would have been kept in the office. If nobody had notice of it, all subsequent transactions would be valid, and practically that would be tole rably safe, the deed being known only to the father and the son. It seems to me that it was intended to be a perfect deed. It was in all probability meant to be used for the purpose of winding up the affairs of Jues, if need should be. But, at all events, it would operate as

an absolute assignment of the property. It was not void because concerted between Jukes and his son; for, the statute prevents that from being an objection: nor was it void upon ordinary principles, as a colourable deed for the purpose of defeating creditors. But, as between the parties to it, it was a valid deed: it would be valid also, as to any other creditor who might choose to make use of it for the purpose of getting a division of the assets. It seems to me, therefore, that it operated as a valid act of bankruptcy. The petitioning creditor is not shown to have been privy to the execution of the deed. It appears that the bankrupt went with his son William Henry Jukes to Liverpool to consult Mr. Evans, the attorney, and nobody then knew that a deed of assignment would be resorted to. That Arthur Jukes, the petitioning creditor, was privy to the assignment, there is no evidence. Upon the whole, therefore, I think there was a valid act of bankruptcy, and that a general notice, according to *the [*707 current of the authorities, was sufficient. If any doubt be entertained on that point, the parties may take the opinion of a Court of error.

As to the remaining point, on the reduction of damages, which depends upon the rights of Cooke, I should desire time for further consideration.

WILLIAMS, J.—I am entirely of the same opinion. In the first place, I am clearly of opinion that Joseph Jukes was a trader within the bankrupt laws. Adopting the view of the facts which has been submitted to us on the part of the defendant, the result seems to be, that, in order to make the produce of his own land profitable in the greatest degree, it became necessary for the bankrupt to become a trader, by buying ore the produce of other mines, in the proportion mentioned by my Lord, to smelt with his own. He is not the less a trader because he was induced to become so in order to make the most of the produce of his own mines. Then, as to the act of bankruptcy, -again adopting the view of the facts submitted to us by the counsel for the defendant, the plan which the parties seem to have adopted, was, to be doubly armed, viz. with a declaration of insolvency and a deed to which they might resort as a complete act of bankruptcy should circumstances render it desirable. To secure that object, it was necessary that there should be a present act of bankruptcy, which could only be by giving the deed of assignment a complete and efficient operation from the time of its execution. It is true, that the effect of that would be to enable any creditor, if it were known, to avail himself of the deed, and so deprive the parties of that option. It was therefore part of the plan that the deed should be kept dark. But it was essential that the act of bankruptcy should have been perfected by the execution of the deed. The remaining points *have been disposed of by the observations of my Lord. The sufficiency of the general notice is affirmed by the authorities [*708 referred to in the course of the argument. As to the validity of the deed being affected by the fact of the petitioning creditor being a party assenting to it, the evidence disposes of that point. I do not, however, wish to be understood as admitting, that, if the facts did raise the point, it is anything like a clear one. Assuming that the petitioning creditor was a party to it, I by no means admit that the

assignees would have been precluded from setting it up as an act of bankruptcy. Without, however, giving any opinion upon that point, I must not be understood as at all sanctioning the notion that they might not so have acted upon it.

WILLES, J.-If I ought to express any opinion, without having heard the whole of the arguments, I do so in concurrence with what has been stated by my Lord Chief Justice.

KEATING, J.—I also concur with what has fallen from my Lord, and do not desire to add anything. Cur, ade, vult.

ERLE, C. J., now said:-The plaintiffs were entitled to the possession of the goods taken, and they had an interest in them increasing in proportion as the instalments mentioned in the mortgage-deed should be paid off till they should become owners, on assignment from Cooke when all the instalments should be paid.

The defendant is a mere wrongdoer, having no right either under Cooke, the mortgagee, or any one else. The defendant, therefore, is liable to the plaintiffs for the full value of the goods; and the plaintiffs are liable to Cooke for his proportion.

*709] *If Cooke or any one claiming under him had been sued for converting the goods, then the plaintiffs would only have been entitled to the value of their interest therein, the defendant being entitled to keep the residue. This is laid down in Brierly v. Kendall, 17 Q. B. 937 (E. C. L. R. vol. 79). The same rule is laid down in respect of the measure of damages in trover by a bailee against a stranger, as contradistinguished from an action against a party having an interest in the goods, in Mr. Maine's book on Damages, p. 214, where the authorities are collected.

The verdict will therefore stand for the full amount.

Rule accordingly.

PENNELL and Another, Assignees of CHEESEMAN, a Bankrupt, v. REYNOLDS. July 8, 1861.

An assignment by a trader of all his property and effects for a present advance of part of their value is not necessarily an act of bankruptcy.

It is for the jury to say whether under the circumstances the effect of the assignment is to defeat and delay creditors.

THIS was an action brought by the assignees of one Cheeseman, a bankrupt, to recover the value of certain goods of the bankrupt which had been seized by the defendant under a bill of sale executed by the bankrupt before his bankruptcy, and sold.

The cause was tried before Wightman, J., at the last Spring Assizes at Lewes, when a verdict was, under the direction of the learned Judge, entered for the plaintiffs for 3291., the agreed value of the goods, subject to the opinion of the Court upon the following facts,-the Court to draw such inferences as a jury might have drawn:

Cheeseman, the bankrupt, was a contractor. The defendant Reynolds was his surety for the performance of certain contracts, and was also under liability for him in respect of several outstanding

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