1856. Jan. 15. In October, 1852, E., a trader, assigned to the CARR v. ACRAMAN and Others. TROVER for certain machinery and stock in trade of a woollen factory, and household furniture &c.-Pleas: Not plaintiff all his guilty; and that the machinery, stock in trade, &c., was not the property of the plaintiff. household ment, to seize session of the by assigned, and all other goods,chattels, and effects which might be found on the premises. In January, 1855, At the trial, before Williams, J., at the last Bristol Assizes, the following facts appeared:-The defendants were the assignees of one England, a bankrupt, who had carried on the business of a wool-stapler, at Trowbridge. By indenture of the 11th October, 1852, England assigned, by way of mortgage, to the plaintiff, all his household property there- furniture, utensils, and effects then on the premises, as a security for money lent. This indenture contained a power enabling the plaintiff, in default of payment of the sum thereby secured, to seize and take possession of the property thereby assigned, and also any other goods, chattels, and effects of England which might be found on his premises. On the 23rd January, 1855, England assigned all his estate and effects to trustees, for the benefit of his creditors. On the 23rd February, the plaintiff demanded the mortgage money, which not being paid he took possession of all the effects then on the premises, under the power contained in the deed of the 11th October, 1852. Part of these effects were not conveyed by the deed of assignment. On the 20th March, 1855, a fiat in bankruptcy in bankruptcy issued against England, the act of bankruptcy being the issued against E., the act of above-mentioned assignment; and the defendants, as his bankruptcy assignees, sold the property in question. E. assigned all his estate and effects to trus tees, for the benefit of the In creditors. March a fiat being the above assign ment of his estate and effects to trustees. In an action by the plaintiff against the assignees for selling the goods so seized by him:--Held, that though the assignment by E. of his estate and effects to trustees was void as against creditors, yet it operated to transfer to the assignees the property not included in the assignment to the plaintiff, and so defeated his title, which would otherwise have been valid by the seizure. It was submitted on behalf of the defendants, that the plaintiff could not recover in respect of the goods not included in the deed of the 11th October, 1852. It was contended on the part of the plaintiff, that, as the assignment of the 23rd January, 1855, was an act of bankruptcy, and void as against creditors, the plaintiffs were entitled to recover in respect of the whole of the goods seized. The learned Judge left it to the jury to say whether the plaintiff had notice of the act of bankruptcy; and the jury found that he had not: whereupon a verdict was entered for the plaintiff for 271., the entire value of the goods, leave being reserved to the defendants to reduce the amount to 90%., being the value of the goods included in the deed of assignment. Kinglake, Serjt., in the following Term, obtained a rule nisi accordingly; against which Montague Smith and Coleridge now shewed cause.— According to the authority of Congreve v. Evetts (a), the execution of the power by taking possession of the goods on the bankrupt's premises, though not assigned by the mortgage deed, would give the plaintiff a valid title to the goods, unless the bankrupt had previously conveyed them to some other person. The defendants seek to defeat the plaintiff's title by the assignment of the 23rd January, 1855, which they rely on as an act of bankruptcy. But if that assignment be treated as fraudulent and void, it is void as against all the creditors of the bankrupt. The defendants cannot set it up as valid against a particular creditor and as void against the others. If it was void no property passed to the defendants. [Alderson, B.-It might be void as against creditors, but valid as a conveyance to the assignees under the bankrupt law.] If the assignment operated to pass (a) 10 Exch. 298. 1856. CARR V. ACRAMAN. 1856. CARR V. ACRAMAN. the property to the trustees, then the assignees have no title; if the assignment is void, the seizure of the goods by the plaintiff is a transaction with the bankrupt protected by the 133rd section of the 12 & 13 Vict. c. 106.—They also referred to Butler v. Hobson (a), Goldschmidt v. Hamlet (b), and Graham v. Witherby (c). Kinglake, Serjt., and Barstow appeared in support of the rule, but were not called upon to argue. ALDERSON, B.-The rule must be absolute. The property in question would have passed to the plaintiff if he had seized it whilst it was the property of the bankrupt, and before he conveyed it to trustees for the benefit of his creditors. Then it is argued, that, because that conveyance was an act of bankruptcy, and void as against creditors, the plaintiff is remitted back to his original right. But the only effect of the assignment being an act of bankruptcy and void, is to transfer the title to the property from the trustees to the assignees. PLATT, B.-I am of the same opinion. MARTIN, B. For the purpose of rendering an assignment by a trader of his property an act of bankruptcy, the deed must be invalid as against creditors, and consequently the law transfers the property to the assignees for the benefit of the creditors. The power of the plaintiff to seize future property was a license, and the conveyance by the bankrupt to the trustees operated as a revocation of that license. Rule absolute. (a) 5 Scott, 798. (b) 6 M. & Gr. 187. (c) 7 Q. B. 491. 1856. TRESPASS PETRIE V. NUTTALL Jan. 16. RESPASS for breaking and entering certain land of the A verdict of plaintiff. Plea-That, before and at the said times when &c., there was and of right ought to have been a certain common and public highway, into, through, over, and along the land of the plaintiff, for all persons to go, return, pass, and repass, on foot, and with horses, cattle, carts, and carriages, at all times of the year, at their free will and pleasure: wherefore the defendant, having occasion to use the said way, did, the said times when &c., walk along the said way: quæ sunt eadem, &c. at Replication-The plaintiff joins issue on the said plea. Rejoinder-That the plaintiff ought not to be admitted to take issue on the defendant's plea, and to deny, that, before and at the said several times when &c., there was and ought of right to have been a certain common and public highway into, through, over, and along the said land of the plaintiff, in which &c.; because the defendant says, that before any of the said times when &c., and before and at the time of the taking of the inquisition and of the finding the verdict hereinafter mentioned, John Petrie, William Petrie, James Petrie, and Joseph Petrie, some or one of them, were or was seised in their or his demesne as of fee of and in the said land in which &c., and were possessed of the said land; and that thereupon, on the 29th of August, A. D. 1853, at the general sessions of the peace of our lady the Queen, holden at Salford, in and for the county Palatine of Lancaster, it was by the oath of twelve jurors, good and lawful men &c., then and there sworn and charged to inquire for our said lady the Queen and the body of the said county, presented that theretofore, and before the committing of guilty, and judgment thereon in an indictment for obstructing a public highway, cannot be pleaded as an estoppel in an action brought by the party convict ed against a third person for using the way. 1856. PETRIE v. NUTTALL. any of the offences in that indictment charged and stated, to wit, on the 1st of June, A. D. 1848, there was and thence hitherto has been and still was a certain common Queen's highway called, to wit, Rope-street, situate at the parish of Rochdale, in the county of Lancaster, for all the subjects of our said lady the Queen to go, return, pass, repass, ride, and labour, on foot and on horseback, and with cattle, carts, and carriages, at their free will and pleasure, without any impediment or obstruction whatsoever; that afterwards, and whilst the said common Queen's highway was such common Queen's highway as aforesaid, to wit, on &c., at the parish aforesaid &c., the said John Petrie, William Petrie, James Petrie, and Joseph Petrie unlawfully, wilfully, and injuriously did erect, build, put, and place, and cause to be erected, built, &c. in, upon, and across the said common Queen's highway, to wit, at the easterly end thereof, a certain wall and building made of, to wit, bricks, stone, and mortar, and being of great length and height, to wit, &c.: By means whereof the said common Queen's highway, then and during all the time aforesaid, was greatly obstructed, and the subjects of our lady the Queen then and during all the time aforesaid could not go, return, pass, repass, ride, and labour, on foot and-on horseback &c., in, by, through, and over the said highway, as they were wont and accustomed and of right ought to do, to the great damage and common nuisance of all the subjects of our lady the Queen, in, by, and through the same highway, to wit, Rope-street, going, returning, passing, repassing, &c.: contra pacem, &c. -The plea then stated that the indictment was removed into the Court of Queen's Bench; that the defendants pleaded not guilty, upon which issue was joined; that, on the 9th of August, 1854, at the Liverpool Assizes, the issue was tried by a jury, who found that the defendants were guilty of the matters contained in the indictment; that a day was given by the Court until the 7th of May, 1855, to hear judgment-At which day (the parties being present), |