After some further covenants on the part of Groverman, the charter party proceeds thus: In consideration whereof the said R. T. Hooe & Co. do covenant, &c. to and with the said W. Groverman, &c. that they will well and truly pay the freight stipulated therein."

ERR

RROR from the fourth circuit court sitting at Baltimore.

This was an action on the case for money had and received by Wood to the use of Robb, the bankrupt.

Thus the whole language of the charter party goes to prove that the covenants respecting the voyage are on the part of Groverman, and on that account, as well as on the account of his letting only the tonnage of the vessel, and furnishing the captain and mariners, &c. he is to be considered as the owner of the vessel for the voyage, under the charter party. This opinion is *On the 30th of May, 1800, Robb be- [*240 strengthened rather than weakened by the pro-ing in possession of his household furniture, and visional articles.

99 66

46

Judgment below was entered by consent, subject to the opinion of the court on a case stating the following facts, viz.:

having two vessels and no other property, on The first article stipulates that particular in- the high seas, signed, sealed and delivered, a structions respecting the voyage shall be given deed to Charles Garts and Gabriel Wood, to the captain, by Groverman, before its com- trustees in behalf of themselves and other credmencement. The words are: The captain or itors of Robb, therein particularly named, and commander shall be instructed by his owner, such others of his creditors as should by a cerprevious to his sailing from the port of Alexan-tain time assent to the terms of the trust; by dria, to touch at Falmouth," there to lay off and on twenty-four hours (or longer if desired) in daylight," &c. These orders, then, to the captain were to be given by Groverman, and it was by his authority that the captain was to act on that occasion. This explains the doubt as to the person who was to be considered as covenanting that the vessel should lay off and on, for twenty-four hours, at the port of Falmouth, and tends to show who was responsible for the breach of that covenant. This, too, is in addition to covenants in the charter party, which are plainly Groverman's, and is therefore the more to be considered as a covenant on his part. The act was to be performed by his authority, and the covenant was his covenant.

which deed, Robb, in consideration of five shillings, and towards payment of the debts due to the particular creditors therein named in the first place, and in the next place of such of his creditors as should agree to the terms of the trusts; grants, bargains, sells, &c. to Garts and Wood, all his estate, real, personal and mixed, and choses in action, &c. in trust to sell the same and collect the debts, &c. and on receipt of the money to retain in the first place the amount due to Garts and Wood, for money lent, &c. then to pay the debts due to the other creditors particularly named, and then to pay the debts due to such of his other creditors as should, within a certain time, agree to the terms of the trust; and if there should be a surplus, to pay it over to Robb. That this deed was acknowledged on the 14th of June, 1800. That Robb did not, on the said 30th of May, 1800, deliver to Wood his books, but they remained in Robb's possession. That the vessels were not conveyed to Wood by any other conThat veyance than that before mentioned. Robb continued in possession of his household furniture, books of accounts, and all his papers, until the suing out of the commission of bankruptcy, except the policies of insurance on the vessels, which were delivered to Wood at the time of delivering the deed. That Robb considered Wood as having a right to take possession of the books and papers and personal estate, at any time after the delivery of the deed, but did not then expect to be obliged to stop It is, then, the opinion of this Court, that on business; on the contrary, that he actually went this special verdict, the law is for the defend-on with the hope of retrieving his affairs until the 20th of June, 1800. That Robb was a trader before and after the 1st of June, 1800;

239*] *On a consideration, then, of the whole contract between the parties, the court is of opinion that Groverman remained the owner of the vessel during the voyage, and is answerable for any misconduct of the captain.

The covenant to lay off and on at the port of Falmouth, being the covenant of Groverman, the freighters are not answerable in this action for the breach of it, should the orders of Fox be understood as their orders. It is probable that the course taken by the captain was the most prudent course; but were it otherwise, the orders of Fox might excuse the owner from any action brought by the freighters for loss sustained by them in consequence of going into Falmouth, but could not entitle him in this action against the freighters.

ants.

Judgment reversed, and the circuit court to en- that at the time of signing, sealing and deliverter judgment for the defendants.

ing of the said deed, he was the legal proprietor of a lot of ground in the state of Maryland, as assignee of a term of 99 years, renewable for

Cited 8 Cranch. 50; Abb. Adm. 259; 1 Cliff. 138; 2 Gall. 76; Newb. 530; 1 Sum. 568; 3 Sum. 577; 4 Wash. ever, and was also possessed of personal property, and had debts due to him; that Garts and

122, 119.

94

Wood, and the other persons in the deed par- sold them. The mother brought trover against 241*] ticularly named, were creditors of the assignees, and recovered. Lord Mansfield, Robb; and that there were other creditors be- in that case, said, that a preference to one credsides those particularly preferred in the deed. itor, especially by assigning only part of his That a commission of bankruptcy issued against goods, and to pay only part of the debt, has Robb on the 12th July, 1800, founded on the been frequently held to be good; particularly execution and acknowledgment of the said in the case of Cock v. Goodfellone, (the case of a deed, under which Robb was declared a bank-parent and child,) Small v. Owdley and others." rupt, and his effects were assigned to the plaintiffs, Owings and Smith, by a deed of assignment on the first of May, 1801. And that the action is brought to recover all moneys received by Wood, in virtue of the said deed to Garts and Wood. If on the above state of facts the plaintiff's were entitled to recover, then judgment was to be entered for the plaintiffs for 3,000 dollars; but if, &c. then judgment of non

pros.

By the bankrupt act of the United States, s. 1. it is enacted, that from and after the 1st day of June next," (June 1, 1800,) "if any merchant," &c. "with intent unlawfully to delay or defraud his creditors, shall make, or cause to be made, any fraudulent conveyance of his lands or chattels," "he shall be deemed and adjudged a bankrupt."

Two questions were made by the counsel in the court below, viz. :

1st. Whether this deed can be considered as made at the time of its acknowledgment on the 14th June, 1800, so as to constitute it an act of bankruptcy, under the bankrupt law of the United States, which came into operation on the 2d June, 1800, or whether the acknowledgment shall relate back to the 30th May, 1800, the day on which the deed was signed, sealed and delivered, so that the deed shall be considered as made on that day.

2d. Whether, if made after the 1st of June, 1800, it can be considered as such a fraudulent conveyance as is contemplated by the 1st sect. of the bankrupt law.

Martin, for the plaintiff in error,

Suppose he had sold the goods in question to John or Thomas, and, with that ready money, had paid his mother part of her debt; would that sale or payment have been void?"

The courts of Virginia, Maryland and Pennsylvania have always recognized the same principles. If the bankrupt law had never passed, this deed would have been protected in courts of law and equity.

Is this a fraudulent conveyance under the bankrupt law?

*The acknowledgment is necessary [*243 for some purposes, but not to constitute it a deed.

A deed is defined to be a writing on parchment or paper, sealed and delivered. Suppose a mortgage of lands, containing a covenant to pay money, be not acknowledged, it would not at law convey a legal title to the land, but it would be good as a covenant to pay the money; and would be good to pass an equitable title to the land, Suppose it contained a conveyance of land and chattels; it would be good as to the chattels.

This shows that acknowledgment is not a necessary part of the deed; but only that a deed, not acknowledged, will not pass a legal estate in lands, as to creditors.

But the act of Maryland, November session, 1766, c. 14, s. 2, says, "that no estate of inheritance, &c. shall pass or take effect, except the deed or conveyance by which the same shall be intended to pass or take effect, shall be acknowledged before the provincial court, &c. and be also enrolled in the records of the same county,"

Now waived the second point, and relied en- &c. It must therefore be a deed before the tirely on the first.

This involves three questions: 242*] *1st. Whether the deed, signed, sealed and delivered on the 30th of May, and acknowledged on the 14th of June, is an act of bankruptcy under the law which came into operation on the 2d of June.

2d. Whether the signing, sealing and delivery shall be considered as going forward to the time of acknowledgment; or,

acknowledgment. And by the fifth section of the same act it is declared that every such deed shall have relation, as to the passing and conveying the premises, from the day of the date thereof; thereby evidently contemplating it to be a deed from its date. This section was inserted because, by the former act of 1715, the deed took effect only from the time of its acknowledgment. But the law is the same independent of the positive declaration of this act. 1 Bar. Abr. 277, Bargain and Sale, and 2 Inst. 674, 675, where Lord Coke, in his exposition upon the statute of 27 Hen. VIII. c. 16, of enThe debtor, independent of the bankrupt act, rollments, says, " And when the deed is enrolled may prefer one creditor to another. No cred- within six months, then it passeth from the itor can prevent him, unless by taking out a com- livery of the deed. And, albeit, after the delivmission of bankruptcy. This principle is ac-ery and acknowledgment, either the bargainor knowledged by all the state governments, and by the laws of England, in cases not within the bankrupt law.

3d. Whether the acknowledgment shall refer back to the time of the signing, sealing and delivery.

In the case of Hooper v. Smith, 1 Bl. Rep. 441. one Hooper being bona fide indebted to his mother in the sum of 800l. at 8 o'clock in the morning assigned and delivered to his mother, half his stock in trade, which was taken away immediately to his mother's lodgings. On the evening of the same day he committed an act of bankruptcy. His assignees, by stratagem, got possession of the goods and

or bargainee die before enrollement, yet the land passeth by this act." "And by the words of this statute, when the deed is enrolled, it passeth ab initio." And he cites the case of Mallery v. Jennings, determined in the common pleas, 42 Eliz. which was this: "One Sewster was seized of certain lands in fee, and acknowledged a recognizance *to [*244 Turner, whose executrix brought a scire facias upon the recognizance, bearing date the 9th November, 41 Eliz. against Sewster, and alleged him to be seized of those lands in

But if the assignees are entitled, they must take the bankrupt's estate subject to all the equity of others. 2 Vesey, sen. 585, 633. Cooke's Bankrupt Law, 203. Taylor v. Wheeler, 2 Vern. 564.

Courts of law will protect equitable rights: as in the case of Winch and Keeley, 1 Term Rep. 619, where the plaintiff having assigned his right of action to Searle, and having become bankrupt, was still held able to support the action for the benefit of Searle, notwithstanding the assignment of his effects under the bankrupt laws.

*And by the authority of ex parte [246 Byas, 1 Atk. 124, if the assignees had received the money due to Robb, the bankrupt, they would have been obliged to pay it over to Wood, the plaintiff in error, instead of receiving it from him.

dominico suo ut de feodo, the day of the scire knowledgment; for as to the choses in action, facias brought; and the truth of the case being the deed without acknowledgment is an equitadisclosed by long pleading, was this: Sewster, ble assignment, and if acknowledged it would 7th November, before the recognizance ac- have amounted to nothing more. knowledged, by deed indented for money, had bargained and sold the said land to another, and the deed was enrolled the 20th November following. The question was, whether Sewster was, upon the whole matter, seized in fee the 9th of November, the deed being not enrolled until the 20th of the same November. And it was adjudged, una voce, that Sewster was not seized in fee of the land on the 9th day of November. For that when the deed was enrolled, the bargainee was, in judgment of law, seized of that land, from the delivery of the deed. And it was resolved, that neither the death of the bargainor nor of the bargainee, before enrollment, shall hinder the passing of the estate. And that a release of a stranger to the bargainee, before enrollment, is good. So that it holds not by relation, between the parties, by fiction of law; but in point of estate, as well to them as to strangers also. And that a recovery suffered against the bargainee, before enrollment, (the deed indented being, afterwards, within the six months, enrolled,) is good, for that the bargainee was tenant of the freehold, in judgment of law, at the time of the recovery. And non refert when the deed indented is acknowldeged, so it be enrolled within the six months. And all this was afterwards affirmed for good law by the court of common pleas, Trin. 3 Jac. upon a special verdict given in an ejectione firma between Lellingham and Alsop; and further it was there re-any one of his creditors in full. But making a solved, that if the bargainee of land, after the bargain and sale, and before the enrollment, doth bargain and sell the same, by deed indented and enrolled, to another; and after the first deed is enrolled, within the six months, the bargain and sale, by the bargainee, is good."

In 18 Viner, 289. tit. Relation, it is said, "when two times, or two acts, are requisite to 245*] the perfection of an *act, it shall be said, upon their consummation, to receive its perfection from the first.'

If A. makes a deed to B. on the 30th of May; and another for the same land to C. on the 1st of June, and acknowledges it the same day; afterwards, on the 14th of June, he acknowledges the deed to B. this overreaches the deed to C. and the acknowledgment of the deed to B. is not a fraudulent act.

Suppose A. makes a bona fide deed to B. for valuable consideration, on the 30th of May. On the first of June A. commits an act of treason. On the 14th of June he acknowledges the deed to B. The land is not forfeited by the treason of A.

If an indictment had been found for forging this deed, and to support the indictment, evidence had been given of the forgery of the acknowledgment only, would that have supported the indictment?

If a declaration upon this deed, stating it to have been made on the 14th of June, had been drawn, would it have been supported by producing in evidence this deed signed, sealed and delivered on the 30th of May?

This deed intends to convey choses in action and personal effects as well as lands. As to the former, the deed is good without ac

The deed is not fraudulent in se; and would not now be questioned if the bankrupt law had not been passed. Although it is a deed of all his effects, yet it is not an absolute deed, nor was it made on any secret trust, or for his own benefit. The only thing which can be alleged against it is, that it gives a priority to some of his creditors, and this he had a clear right to do both in law and equity. It was not made in secret; it holds up no false colours; it enables him to receive no false credit. He might have sold the property for ready money, and paid

deed of trust, he has prevented a sacrifice of his property, whereby it is competent to satisfy a greater number of his creditors, and he is himself rendered more able to pay the residue of his debts by his future industry.

The committing an act of bankruptcy is, in law, considered as criminal. The bankrupt law is, therefore, in this respect, to be construed strictly. It ought not to be extended beyond the letter of the law. Cooke's B. L. 67. Cowp. 409, 427,428. 5 Term Rep. 575. 7 Term Rep. 509. Fowler v. Padget.

But however fraudulent the deed might have been, yet it was no act of bankruptcy, under the act of congress; because not executed after the 1st of June; unless the acknowledgment can be considered as the making of the deed. And if it was not an act of bankruptcy, the title of the defendants in error fails.

Harper, contra.

The act of bankruptcy charged, is the making a fraudulent deed after the 1st of June, 1800. The counsel for the plaintiff in error having abandoned the second point which was made, and strongly contended for, in the court below, the only question now to be considered is, whether the deed was made before or after the 1st of June.

*A deed at common law is an instru- [*247 ment in writing, signed, sealed and delivered. If it be signed and sealed, but not delivered, it is no deed; and the reason is, that until the last act of volition is performed, there is still a power of recalling it.

The cases from the English books respecting the statute of enrollments are not applicable to the law of Maryland respecting acknowledg

For the defendants in error it was contended, Fines, forfeitures, and penalties arising from a that, by the laws of Maryland, a deed is not breach of those laws are to be sued for and recov complete until it is acknowledged, and there-red in the same manner as before the change of jurisdiction, mutatis mutandis. fore this conveyance was made on the 14th of June, when it was acknowledged; and not on the 30th of May, when it was sealed and delivered.

The record which came up contains a bill of exceptions, taken by the attorney for the UnitThe 5th section gives the conveyance, so ac-ed States, to the opinion of the court; which knowledged and enrolled, relation to the date thereof.