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John, the son, had the inheritance, and the intervening estate could do no more than prevent an immediate consolidation of the freehold and inheritance.

To prove the cases cited from the chancery books is foreign, it will be necessary to show that the distinction, before hinted at, between trusts and legal estates has been adopted by chancellors and is warranted by the best authorities. In Papil lon v. Voice, where the case was that a sum of money was devised to purchase lands to be settled on B. for life without impeachment of waste, remainder to the trustees &c. to support contingent remainders, remainder to the heirs of the body of B. with power to B. to make a jointure; and by the same will land was devised to B. for life without impeachment of waste, remainder to trustees &c. to the heirs of the body of B. Lord King, on an appeal from the Master of the Rolls, expressly took the diversity and decreed that, in the first instance, B. should take an estate for life only, and in the second an estate tail. In Coleson v. Coleson the diversity was taken. In Bagshaw v. Spencer, Lord Hardwicke took it, allowing that a devise of a legal estate must be governed by legal rules; and he said that as it was the case of a trust, the court would carry the intention into execution, and were not bound by the rules of law that prevail on the construction of devises of legal estates. In Leonard v. the Earl of Sussex, 2 Vern. 526. the decree was expressly grounded upon this diversity: and it was allowed by the Lord Keeper in Legate v. Sewell, 2 Vern. 551. To the same point are Broughton v. Laugley, 2 Lutw. 814. 2 Salk. 679, and Glenorkie v. Boswell, Forres.

There is an argument against this diversity between trusts and legal estates, which at the first blush appears to be material; and that is drawn from the absurdity that would follow a resolution, that two courts having concurrent jurisdiction should adopt different rules of property. But upon considering the matter, it will appear to be without foundation, for the rule of law is not restrained to one court in particular, but it is applied to the cases of legal estates in particular; and in all such cases, the courts of equity are as much bound by it as the courts of law. Besides in the cases of trusts, there is no concurrent jurisdiction, for as to them the courts of law have no jurisdiction at all. When a testator de

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vises a legal estate, he makes a final, conclusive conveyance; and therefore all that can be done is to consider what estates are created by the terms which he has made use of. But in trusts there is no such final conveyance. There is, in fact, no conveyance at all, but an executory direction, by which a subsequent conveyance is to be made or framed, under the inspection of the Court of Chancery, more in the nature of directions given to a conveyancer, to frame a conveyance by, than any thing else; and therefore, though the directions given by the testator are vague, the Court of Chancery will take care that apt words shall be used in the conveyance. Even in the Court of Chancery, there is a distinction between trusts executed, where the testator mentions the particular term of the limitations to be made, and trusts executory, where he only gives general directions, and leaves it to the trustees to form the limitations. In the former instance, the Court of Chancery sometimes determines by analogy to the rules of construction affixed to legal estates, though it has been said, in the cases of trusts, they have no inherent, authoritative weight, but in the latter, the intention is the sole rule of construction.

If the rules of property should be broken, endless confusion would follow. In such circumstances, no lawyer could give an opinion with certainty nor direct a conveyance with confidence. As men could not purchase with security, they would not purchase at all; and all those evils would arise, which are ever to be dreaded from a stagnation of property. Besides, if the rule in Shelley's case be shaken, all the conveyances whose stability depends upon it (of which I have been told there are innumerable) must fall to the ground.

This is a devise of a legal estate: it must be construed by legal rules, and therefore I am of opinion, that John, the son, took an estate tail.

The opinion of the other Judges being that John, the son, took an estate for life only, judgment was entered accordingly.

There was an appeal to the Exchequer Chamber before all the Judges and the judgment of the Court of King's Bench was reversed, and an appeal to the House of Lords where it was settled without argument.

Baltimore County Court.

EJECTMENT, MARCH TERM, 1808.

William M'Mechin's Lessee v. George Grundy and Joseph Thornburgh, Assignees of Aquilla Brown, Bankrupt.

UNDER the late act to establish an uniform system of bankruptcy throughout the United States (vol. 5. p. 45. L. U. S.) all deeds which are made with a view to give a preference to any creditor in exclusion of others, or to delay or defraud any of them in the recovery of their debts, are fraudulent in point of law, and are acts of bankruptcy.

The denial to the sheriff who is endeavouring to arrest a party, is not an act of bankruptcy, if the debt upon which the writ issued was not at the time actually due; but the adjudication of the commissioners of bankrupts, that the party is bankrupt, may be supported by other acts of bankruptcy than that upon which the commission is founded, provided they were committed within six months before the commission was issued.

ICHOLSON, Chief Justice:* The defendants are assignees of Aquilla Brown a bankrupt, and the plaintiff claims under a deed made by the bankrupt on the 20th February 1802.

On that day a writ issued against Brown, at the suit of Nicholas Norris for the recovery of a debt due to him, upon which writ Brown was not taken, but ordered himself to be denied to the sheriff's officer. The denial was consitlered by Norris as an act of bankruptcy, and he, accordingly, on the same day, preferred a petition to the district Judge, praying a commission of bankruptcy to issue against Brown, and proved his debt to the satisfaction of the Judge. On the 22d, a commission did accordingly issue, and on the 23d, the commis

Abs: Hollingsworth and Jones.

sioners declared Brown a bankrupt, and made an assignment of his effects to the defendants as assignees. It is alleged by the plaintiff that the debt to Norris was not payable when the writ issued, and that therefore the denial to the sheriff was not an act of bankruptcy; and it assuredly was not, if the jury should be of opinion that the writ was taken out before the day of payment had arrived.

To support the commission, however, and the declaration of the commissioners, other acts of bankruptcy are insisted on. The first of these was the conveyance to James Clarke of two vessels on the 17th of February, 1802, made by Brown for the purpose of securing Clarke on account of sundry pecuniary engagements which Clarke had entered into for him. It is stated and proved, that on the 16th of February, Brown called on Clarke to request him to indorse a bill of exchange for Brown's accommodation, which he peremptorily refused to do: upon which Brown declared that he could not go on if Clarke refused to assist him, and that he was ruined. Clarke persisted in his refusal, and inquired of Brown how he (Clarke) was to be secured for sundry engagements of a similar nature, which he had already entered into for Brown's use. Brown then made an offer of the vessels to secure Clarke, and not to uphold, nor to procure an extension of his own credit. It was not to procure any assistance which would enable him to proceed in his business, and was not therefore either for his own benefit or for the benefit of his creditors generally, but with a view to give Clarke à preference. It was in fact taking the amount secured by the transfer of the two vessels out of the general mass of his property to give it to one creditor in exclusion of all the others, when he well knew that he could not satisfy the just demands of all; and it was accompanied with no circumstances whatsoever, which, in a legal view are considered as furnishing a justification. It was not the payment of a debt in the ordinary course of business; there was no threat nor pressure by Clarke of an extraordinary nature, but a mere common place question, after Brown had declared himself ruined, of how he (Clarke) was to be secured, not for

a debt already due by Brown to Clarke, and which Clarke had a right to demand, but for debts of Brown's to other persons, for which Clarke supposed he should eventually be responsible. If therefore the jury should be of opinion that the deeds to Clarke, or to either of the other creditors, were made with a view to give a preference to some of the creditors in exclusion of the others, or to delay or defraud any of them in the recovery of their debts, the deeds were fraudulent in point of law, and do amount to an act of bankruptcy; and though Brown's denying himself to the sheriff might not have been an act of bankruptcy, because that Norris's debt was not payable when the writ issued, or because of any preconcert between Norris and Brown, yet other acts of bankruptcy committed within six months previous to issuing the commission, will support the commission and the adjudication of the commissioners that Brown was a bankrupt.

If the jury should be of opinion, that the deeds, or any of them, were made in contemptation of bankruptcy with a view to secure certain creditors in exclusion of others, such deed so made is void as against the assignees, and the act of making it, is an act of bankruptcy.

It is urged that the peculiar circumstances, under which the deed to Mr. M'Mechin was made, excepts it out of the general rule which has been before laid down. I should have felt very great satisfaction, if I could have formed such an opinion, but with all my inclinations, the best judgment which I can form leads to a contrary decision. The Messrs. Pleasants had previously been Brown's indorsers to a considerable amount, and on the 29th of December, 1801, he applied to them to lend him their names again. This they refused to do unless he would point out some fund from which they could be secured. He engaged to secure them by promising to deposit in their hands bank stock to meet any loss they might incur on his account. Whether he had such an amount of bank stock, at the time does not appear; but it was their duty, if they relied on that kind of security, to have it completed. This they did not do, but lent their names for 14,000 dollars more, resting them

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