utes 5 W. & M. c. 21, § 11; 13 & 14 Vict. c. 97, § 12; 17 & 18 Vict. c. 125, §§ 28, 29) be removed or obviated by a subsequent stamping accompanied by the payment of a penalty. He contended that as the bankrupt had in this case parted with all his estate by a deed effectual at common law, he had thereby committed an act of bankruptcy.

Mr. Sargood, for the bankrupt, and Mr. W. F. Robinson, for Messrs. Cornelius Turner and George Whitehouse (who were coassignees with the appellant Mr. Francis Taylor, but dissented from the present proceedings), were not called on.

THE LORD CHANCELLOR. The act of bankruptcy alleged as the foundation for this petition is an assignment by the debtor of all his property for the benefit of his creditors. That assignment, it is said, had been intended to have the character of a trust-deed, and to be registered under the provisions of the Bankruptcy Act, 1861. It has not, however, been proceeded with, inasmuch as the requisite assents of creditors were not obtained, and the deed has never been stamped. It must be treated, therefore, as a blank sheet of paper signed by the debtor.

The proposition undertaken to be maintained by the * 245 counsel for the appellants before me, and urged before the learned commissioner, was, that an instrument in this condition operated as a conveyance, and that this deed in its blank state was a complete assignment of the bankrupt's property anterior in point of date to the existing adjudication.

The law on the subject is clear. The law, it is true, allows an unstamped deed to be admitted in evidence upon certain things being done. But the question here is, whether this was a valid deed prior to the adjudication of bankruptcy.

The statute of William & Mary (a) enacts, and the provision is repeated by the subsequent statutes, that no unstamped deed shall be pleaded or given in evidence in any Court, or admitted in any Court to be good, useful, or available in law or equity, until as well the duty imposed by the statute as the sum of 51. shall be first paid, and until the stamp be affixed. The statute of George 1st (b) is in similar terms. The subsequent statute of the Queen (c) enacts,

(a) 5 W. & M. c. 21, § 11.
(b) 12 Geo. 1, c. 33, § 8.

(c) 13 & 14 Vict. c. 97, § 12.

that no deed or instrument requiring a stamp, but actually unstamped, shall be pleaded or given in evidence, or admitted to be good, useful, or available in law or equity until the same shall be duly stamped as required by the Act.

Whether the parties in the present case might have gone with this instrument and got it stamped, and brought it back to the commissioner, and if they had done so what the commissioner would

then have done, are questions which I need not consider. *246 For what was actually done was this, the instrument was produced to the commissioner as having been an effectual conveyance of the debtor's property, and consequently as proof of an act of bankruptcy committed by him anterior to the adjudication which the commissioner had made.

But under those circumstances, and by virtue of the statutes to which I have referred, the absence of the stamp deprived the commissioner of the power of looking at the instrument; and upon the proposition submitted to him, I think he was right in refusing to recognize any such conveyance, or any such effect or operation, and in ignoring the instrument.

The appellants consequently failed in limine in proving any act of bankruptcy. And it is, therefore, unnecessary for me to refer to the language of the Bankruptcy Act, 1861, §§ 192, 194, in connection with this subject. I am not, however, satisfied as to the correctness of the decision in Ex parte Wensley which has been cited. I think that I should require considerable argument before I should be prepared to support it. (a)

The present appeal must be dismissed with costs.

(a) See, however, Ponsford v. Walton, L. R. 3 C. P. 167, where Ex parte Wensley was followed, although Ex parte Potter, above reported, was referred to. See also Hobson v. Thelluson, L. R. 2 Q. B. 642.

[186]

*Ex parte KING.

In the Matter of KING'S Trust-deed.

* 247

1864. December 17. Before the Lord Chancellor Lord WESTBURY. The Court of Bankruptcy has no power to dispense with the execution of a deed intended for registration under the Bankruptcy Act, 1861, § 192, by one out of several trustees appointed by the deed. A deed imperfect in that respect does not fulfil the statutory requirements of the section, and cannot be registered thereunder.

THIS was an appeal from the refusal of Mr. Registrar WINSLOW, acting as commissioner, to direct the registration of a trust-deed for the benefit of creditors under the Bankruptcy Act, 1861, § 192, although only executed by two of the three trustees appointed by the deed.

The deed had been executed by debtors in pursuance of the resolution of a meeting of their creditors, and the name of a Mr. Booth had been inserted in the deed as that of one of the trustees, in consequence of a suggestion to that effect made by his solicitor in his absence at and adopted by the meeting.

Mr. Booth, however, had not given his solicitor any authority to make the suggestion in consequence of which his name was so inserted in the deed as that of a trustee, and he refused to execute the deed when presented to him for the purpose.

Two other gentlemen whose names had been associated with that of Mr. Booth in the deed as those of trustees had both executed the deed.

In that condition, so far as regarded the persons appointed by it trustees, the deed was presented for registration under the 192d section of the Act. The officer, however, whose duty it was to receive it, conceiving that the 2d condition of the 192d section *had not been complied with, declined to receive it; and 248 the deputy commissioner, on application made to him to dispense with Mr. Booth's execution of the deed, took the same view of the matter, and refused to accede to the application. From this refusal the present appeal was presented.

Mr. Reed appeared in it on behalf of the debtors, the two trustees who had executed the deed, and certain creditors.

THE LORD CHANCELLOR.I cannot do any thing in this matter. It is unfortunate that the creditors entertained the suggestion made to them at the meeting by Mr. Booth's solicitor, without first ascertaining whether that gentleman had given his assent. As it is, they merely assumed that something would be done which has not been in fact done.

The provisions of the Act of Parliament must be followed expressly, and were I to accede to this application I should be simply repealing one of those provisions. Under them, until a trustee or trustees appointed by a deed intended for registration under the 192d section has or have executed the same, it does not fulfil the requisites imposed by the legislature. The deed, therefore, in the present case is not such a deed as the legislature contemplated; it has not been registered, and its registration would have been improper.

I must refuse this application, but the deposit will be returned.

* 249

* Ex parte GROOME.

In the Matter of GROOME'S Trust-deed.

1864. December 17. Before the Lord Chancellor Lord WESTBURY.

The affidavit required by the Bankruptcy Act, 1861, § 200, should state with particularity the matters to which it is directed.

THIS was an appeal from the decision of the commissioner refusing to allow as sufficient an affidavit stating the circumstances relied upon as grounds for dispensing with the assent of the whole statutory three-fourths of the creditors to a trust-deed for the benefit of creditors executed by a debtor in the form given in schedule (D) to the Bankruptcy Act, 1861. The affidavit is required by the 200th section of that Act to state the circumstances of the case whereby the debtor cannot obtain the assent to the deed of the statutory majority of creditors prescribed by the 192d section. The affidavit in the present case stated that the debtor was unable to obtain that majority by reason of his being unable to ascertain by whom bills

of exchange accepted by him were holden, but did not give the particulars of the bills.

Mr. Bacon, on behalf of the debtor.

The Lord Chancellor held that the affidavit was insufficient, and dismissed the appeal. (a)

*Ex parte PHINEAS ALEXANDER RYRIE OLDFIELD, HAROLD LITTLEDALE, and EDWARD GREY.

In the Matter of PHINEAS ALEXANDER RYRIE OLDFIELD, a Bankrupt.

1865. January 19. Before the Lord Chancellor Lord WESTBURY.

A trust-deed for the benefit of creditors intended to be executed by debtors in business together as copartners, and to be brought within the provisions of the Bankruptcy Act, 1861, § 192, is properly framed when its terms embrace all possible estate and property which not only does but also may or might belong to the partners jointly or to either of them separately. The non-existence in point of fact of any separate estate of either debtor is no objection to the validity under the Bankruptcy Act, 1861, § 192, of a trustdeed so framed, even as against a non-assentient separate creditor. Semble, that in computing the statutory majority of assenting creditors to a deed under the Bankruptcy Act, 1861, § 192, executed by debtors in trade in copartnership, the separate creditors are not to be consulted separately in respect of the separate estate, but that the whole body of the creditors is to deliberate and decide together, and that separate creditors might constitute a majority even if there were no separate estate.

THIS was an appeal on the part of the bankrupt and Messrs. Littledale and Grey, who were the trustees of a trust-deed which had been executed by him and his partner William Thomson, from the refusal of Mr. Commissioner PERRY to stay all proceedings under the petition for adjudication, and to dismiss the petition.

On the 5th of November, 1864, William Thomson and the bankrupt as partners executed a deed of that date, which was expressed

(a) See Ex parte Dobson, supra, p. 229.