case small versus oudley all at the roll Eq can ab pl a goldsmith after shut  up his shop be great indebt assign his stock in the winetrade in which he be  concern to I S be a particular creditor and to secure his debt but without the  knowledge of I S and become a bankrupt the very next day I S bring a bill to  have the benefit of this assignment and decree for he one Norcourt have long  follow the business of a goldsmith and on Michaelmas day last after he have  shut up shop be indebt to several person much beyond what he be able to pay in  contemplation of his bankruptcy and to give a preference in payment to the  plaintiff small who in friendship peer William have then late advance a  considerable sum of money do in order to secure to the plaintiff small the  money due to he from the say Norcourt make a assignment to he of two lease and  also of two three of his stock in the wine trade which he be concern in with  the defendant oudley be about the value of pound and this assignment be make  without the privity of the plaintiff small Norcourt never open his shop again  but the very next day after make this assignment go off and be afterward find  a bankrupt and to have become such the day after Michaelmas day and all his  estate be assign by the commissioner to the defendant man the plaintiff small  who be the assignee of these two lease and likewise of the two three of the  stock in the wine trade bring his bill against man the assignee in the  commission and against oudley the partner in the wine trade to make they  account object for the defendant this assignment make by the trader when it be  resolve by he that he will be a bankrupt the very next day and in  contemplation of such bankruptcy and to give a preference to this creditor  before other by which the equal distribution of his effect intend by the  statute be prevent must be a void assignment beside it be a assignment in  general of all his stock in the wine trade which be the same as if it have be  of all his stock in trade then this assignment be make without the privity of  small the assignee be therefore fraudulent there be no account state on the  trade for wine to the bankrupt nor from the assignee small to the bankrupt  after all which small the assignee come to have this establish and through  partiality assist in a court of equity which if allow will peer William  effectual set aside such part of several statute as give a equal distribution  of the bankrupt estate to all his creditor master of the roll this be a case  of great consequence as it affect trade in general and as it tend to frustrate  the several statute make for the equal distribution of the effect of bankrupt  but still I think that the assignment by Norcourt to small the plaintiff be  good and the plaintiff be entitle to a account of this wine trade against the  defendant oudley saint as to the matter of bankruptcy that be a term not know  to our commonlaw but introduce by several statute the h cap which be the first  be very imperfect the next of the Elizabeth cap be more large and that statute  since enlarge by several subsequent one peer William er p now these statute do  ascertain what act make a bankruptcy and there can be no such thing as a  equitable bankruptcy it must be a legal one dly there may be just reason for a  sink trader to give a preference to one creditor before another to one that  have be a faithful friend and for a just debt lend he in extremity when the  rest of his debt may be due from he as a dealer in trade wherein his creditor  may have be gainer whereas the other may be not only a just debt but all that  such creditor have in the world to subsist upon in this case I say and so  circumstance the trader honest may nay ought to give the preference peer  William and dly in such case it be not the time when the assignment be make by  the trader that be material provide it be make before the bankruptcy but the  justness of the debt be very material thly what have be object that small the  assignee do not know of this assignment seem rather a advantage to the  assignment for this show there be no fraud no importunity use by the assignee  and oftentimes upon the account of mere importunity a trader have when in  trouble be prevail upon to make such assignment thly as to the creditor the  assignee come into equity I admit that every person who come into equity ought  to come with a innocent and a just cause and the now plaintiff for ought  appear do so however what distinguish the present case in his favour be that  the assignment be of a choose in action he can in the nature of the thing  apply no where else for relief or to have the benefit of the assignment but in  equity by if it have be a conveyance of any legal estate as to the precedent  the same be do in the case of cock and goodfellow Mod where the assignment be  make by mrs cock in contemplation of her bankruptcy and in trust for her own  child and as to part it be but a direction to her trustee to assign her stock  in the bank c and Lord Macclesfield declare that this be so far from be a act  of fraud in mrs cook though it be for her own child that it seem to be just  and commendable so in the case of Jacob peer William and shepherd see this  case state at length by Lord Macclesfield burr where shepherd the trader be  just on the brink of bankruptcy and the deed bring ready ingross to he which  he execute a little before his bankruptcy and in contemplation thereof to give  a preference to some of his creditor indeed I doubt of this but on the a  appeal Lord Macclesfield order a trial to be inform when the trader become a  bankrupt and the execution of the deed be find to have be before the  bankruptcy the decree be in favour of the deed the like happen in sir Stephen  Evans case who have execute a deed immediate before his bankruptcy and with a  view to give a preference to some of his creditor the same prevail so that  this have be settle though it may have a mischievous consequence in prefer  some creditor in hope of favour from they afterward yet accord to these  precedent I must decree in the present case in favour of the deed give a  preference to the plaintiff note his honour say that if the assignment have be  of all his good and effect or of all his estate or of all his stock in trade  as goldsmith c this have be too general and will hardly have stand but here it  be not of the trader own trade as goldsmith but a small branch of a different  trade of a stock in wine the whole not above pound and but two three of that  every act do with a view to defeat the bankrupt law by give a preference among  creditor contrary to the spirit of those law be fraudulent and therefore void  and if by deed in itself a act of bankruptcy Worsley v de Mattos burr Hague v  Rolliston burr Alderson v temple burr Linton v Bartlet will Harman v Fishar  Cowp rust v Cooper Cowp hassel v Simpson bro c c and Doug n S c Devon v Watts  Doug butcher v Easton Doug round v bide cook bank law so ex part Scudamour Ves  hartshorn v Slodden b p Dixon v Baldwen east Dutton v Morrison Ves rise Morgan  v horseman taunt so a assignment by deed of all or near all a trader even for  the benefit of all his creditor and without a view to any fraudulent  preference be a act of bankruptcy unless all the creditor assent to it kettle  v Hammond cook b l Tappenden v burgess east because it put peer William er p  the property in a course of distribution different from that ordain by the  bankrupt law ex part bourn Ves but by stat g c S a assignment of all a trader  property for the benefit of all his creditor by deed execute accord to the  regulation prescribe by the statute shall not be deem a act of bankruptcy  unless a commission issue within six calendar month after the execution of the  deed by the trader a conveyance of part or the whole of a trader property to  trustee to raise money by sale or mortgage for the purpose of his trade be not  a act of bankruptcy Bernee v Davison I Brod b Bernee v viner ib peer William  de term S HILLARII