1834. A capias di JACKSON against JACKSON. rected to the JERVIS had obtained a rule to set aside a ca of Middlesex, was set aside for irregulari sheriffs, inpias for irregularity in being directed to the stead of sheriff sheriffs of Middlesex, citing Barker v. Weedon (a), Nicol v. Boyn (b). Butt showed cause, citing Clutterbuck v. Wildman (c), decided before the stat. 2 W. 4. c. 39. came into operation, in which the court refused to set aside the service of a writ of quo minus directed c. 39. schedule to the sheriff of London, saying, the two sheriffs of London and Middlesex make but one officer. ty; for the form being provided by statute 2 W. 4. No. 4. must be strictly pursued. But per Curiam (d)—We have held, that this being a writ of which a form is prescribed by statute, that form must be pursued (e), and we must abide by the recent decisions. (a) Ante, Vol. IV. 860. Rule absolute. (b) 10 Bing. 339. (e) Ante, Vol. II. 276. (d) Lord Lyndhurst C. B., Parke, Alderson, and Gurney Bs. (e) See Pybus v Bryant, Ante, Vol. IV. 994. soap manufac CARR and Others, Assignees of ANTHONY CLAPHAM a A trader and TROVER, by the assignees of 4. Clapham a bankrupt, for goods, chattels, and fixtures. The first turer being indebted to his bankers in a sum of 13,1477. 7s. 5d. assigned to them his leasehold property, with all his engines, machines, &c. stock in trade and effects upon the same, in order to secure as well money then due, as money to be thereafter due from him to them on the balance of his account. The bankers had a power to sell the whole property assigned, including a policy of insurance on the life of the trader; but he was at liberty to remain in possession till default made in payment. At the time of executing the assignment, the trader was possessed of other property worth 13,000l. which was not covered by it. The trader having become bankrupt, his assignees sued to recover the property as signed; but the jury found that the deed was executed, not in contemplation of bankruptcy, but with intent to give the defendants the means of taking possession of the property in the event of bankruptcy. Held, that the assignment was good, and did not amount to an act of bankruptcy. plea was, that A. Clapham was not nor is a bank 1834. CARR v. BURDISS rupt according to the true intent and meaning of the statute concerning bankrupts, in manner and form as in the declaration alleged. Issue thereon. The other and Others pleadings will be better placed in the report of this case on other points, which were afterwards decided in and Another. Hilary term 1835. At the trial before Gurney B. at the last assizes for the town and county of Newcastleon-Tyne the following facts appeared. Anthony Clapham the bankrupt had traded in Newcastle to a large extent as an alkali and soap manufacturer, and was one of the directors and trustees of the North of England Joint Stock Banking Company established at Newcastle in December 1832, under 7 Geo. 4. c. 46. The defendants were also directors and trustees of the bank. A. Clapham transferred his banking account to it, and in July 1833 had overdrawn it to the extent of above 13,000. Being applied to for security by the other directors, a deed of assignment was prepared and executed, bearing date July 8, 1833, and made between A. Clapham of the first part, J. Backhouse and Others of the second part, and the defendants of the third part; and after reciting the title to certain leasehold property of A. Clapham, and the incumbrances thereon, and also an insurance upon his life of 1000l., proceeded as follows:-" And whereas the said A. Clapham has, in his own name alone and in the name of A. Clapham and Co., for some time dealt with the said North of England Joint Stock Banking Company, and in order to induce them to continue their dealings with him, hath agreed to secure, in manner hereinafter expressed, as well such sum and sums of money as he the said A. Clapham shall for the time being, or at any time or times hereafter, be due from him on the balance of his account with the said North of England Joint Stock Banking Company, of whatsoever persons the same shall for the time being be constituted, as also such sum 1834. CARR v. BURDISS and Another. and sums of money as he the said Anthony Clapham shall for the time being, and at any time or times hereand Others after, be indebted or liable to pay to such banking company upon or in respect of any bill of exchange, &c. and whether the same shall be actually due or not, together with interest at the rate of &c." The parties to the deed of the second part being the prior mortgagees of the leasehold premises, then conveyed them to the defendants, their executors, administrators and assigns, in trust for the joint stock banking company, subject to a proviso for redemption on payment of the sums of money aftermentioned; the same parties and A. Clapham then bargained, sold, assigned &c. to the defendants, their executors, administrators and assigns, all and singular the engines, machines, vats, coppers, boilers, and other articles and things, and stock in trade and effects belonging to the said A. Clapham, and in, upon, and about the said leasehold premises hereinbefore-mentioned, and intended to be hereby assigned, or any part thereof. The policy of insurance was then assigned in the same manner. Then followed a power of attorney to the defendants to receive monies due upon the policy. A. Clapham also covenanted to pay to the trustees of the joint stock banking company, on request, all such sums of money as he should be indebted to them in, whether the same should be actually due or not. a power of sale to the defendants, authorizing them to sell the leasehold premises and policy of insurance, and the other premises thereby assigned. It was also provided, that until default should happen to be made in payment of the monies by the deed agreed to be secured, it should be lawful for A. Clapham, his executors, &c. to possess and enjoy the hereditaments and premises by the deed assigned, and to receive and take the rents, issues, and profits thereof, for his own use Further, the deed gave 1834. CARR v. BURDISS and benefit, without the lawful eviction or denial of the covenantors, their cestuis que trust, executors, &c. It was then recited that A. Clapham had deposited and Others with the defendants the lease of a soapery, and assigned to them "all the machines, vats &c. stock in and Another. trade and effects of the said A. Clapham, upon or about the last-mentioned premises." At the time the deed bore date, A. Clapham was possessed of three ships, which in the December of the same year he also transferred to the joint stock banking company, as a security for a further loan of 13,000%. On 8th January 1834 the defendants took possession of the premises under the assignment, and on 9th January A. Clapham executed an assignment for the benefit of his creditors. On the 11th a fiat was issued, and A. Clapham was duly declared a bankrupt. The plaintiffs relied on this assignment at the trial as an act of bankruptcy. The jury, in answer to questions put to them by Gurney B. found, first, that the deed was executed not in contemplation of insolvency or bankruptcy, but with intent to give the defendants the means of taking possession of the property in the event of bankruptcy. The learned baron then put this question to themWhether the possession taken by them on 8th January was bonâ fide? i. e. whether they took possession with intent to keep it? To which it was answered, that they took no possession. For the defendants it was urged, that at all events the fixtures passed to them under the deed. Verdict for the plaintiffs for 12,8891. 12s. 3d. the amount of the goods and chattels, with leave to move to increase them, by adding to the verdict the sum of 42547. 12s. 5d., being the value of the fixtures on the premises. F. Pollock moved accordingly. The deed by which Anthony Clapham's whole property was assigned to the defendants, with intent to give them the means of 1834. CARR and Others บ. BURDISS taking possession of his property, in case of his bankruptcy, was a fraud on his other creditors, and of itself an act of bankruptcy. Then not even the fixtures passed to the defendants, who, as parties to the deed, and Another. were cognizant of the act of bankruptcy thereby committed, 6 Geo. 4. c. 16. s. 72. The bankrupt kept possession of all his property till the commission of another act of bankruptcy, but no trader can so deal with his property, by an assignment to a particular creditor, as to put it in his power at any time to hinder the trader from carrying on his business at any time, by acting on the power of sale contained in the deed of transfer, and seizing his utensils, stock in trade &c. Here, after he had executed the deed, Clapham in fact carried on the business, not for his own but for the defendants' benefit. Lord LYNDHURST C. B.-Suppose nothing to be previously due from a trader to parties about to advance him money, a mortgage to them of his whole effects would be valid, the effect of such transfer being only the substitution of one sort of property for another, viz. money for goods (a). Here, however, the assignment of 8th July was executed with a view to cover future advances of money, as well as to pay off a former debt, and the jury have found, that it was not made in contemplation of bankruptcy; nor was it a transfer of the trader's whole property; for at the time it was taken as a security, he had other property in ships of a value nearly equal to the advances previously made. PARKE B.-Before this assignment could be held to (a) So a sale of the whole of an embarrassed trader's goods is not in itself au act of bankruptcy, Rose v. Haycock, 1 Ad. & El. 460, n. And › see Manton v. Moore, 7 T. R. 67; per Lord Kenyon C. J. in Whitwell v Thompson, 1 Esp. 72. and Hunter v. Mortimer, 10 B. & G. 44. |