Barnardiston bourn and Dodson December peel who be a merchant trade to new  England at different time borrow several sum of money of Dodson on the that of  September the security for those sum of money be cancel and one bind and  warrant of attorney to confess a judgement be give in the room of they for  pound on the d of October follow peel make a assignment to Dodson of a certain  part of his effect by way of security for pound on the that of January follow  there be a endorsement make on the back of that deed that it shall and as a  security for pound and at the same time it be agree that it shall far stand as  a security for pound more if that sum shall afterward be advance on the saint  of April a memorandum be make that that sum be advance accordinaly on the  saint of June follow another assignment be make by way of security for in may  these security be cancel and a new assignment make by way of security foe  pound to carry interest from the December follow this assignment contain among  other thing two ship and some other effect belong to peel which be all of they  then in new England Dodson swear by his answer that the sum of pound be make  up in the manner follow pound part thereof be due as he swear the December  precedent at the time execute the deed there be pound due for interest and the  remain part of the sum be make up of interest compute to be due the December  follow his answer indeed be not very clear in set out the consideration of  this deed to have arise in this manner but this be the most natural  construction of the answer that can well be make however upon the face of the  deed it be say to be make in consideration of pound then in hand pay and there  be a receipt on Barnardiston the back of the deed purport that that sum be  then receive on this deed there be a endorsement of there be pound more  advance grow and Harrison be the subscribe witness to this Barnardiston er p  deed and likewise to the former security Harrison be dead at the time that the  present suit be commence grow be examine in relation to the consideration of  these several deed upon his examination he swear that he remember particular  that at the time the deed of october be make at the time the deed of April be  make and at the time the last mention deed of may be make peel acknowledge the  receipt of all the several sum for which those deed be make a security in one  of the ship return home and in December follow the other ship do so likewise  as soon as these ship be so return Dodson give a letter of attorney to peel  empower he to dispose of the effect that be on board these ship for the  benefit of Dodson and peel agree by the same instrument that he will account  to Dodson accord under this letter of attorney peel all along act as if he be  the owner of the ship and cargo a servant of peel be examine in this Cause and  he swear that on the that of February peel leave his house and never return  again on the that of that instant peel go to the house of Latham and tell he  he be force to hide and desire he to carry two banknote of pound each to  Dodson towards payment of part of his debt on the that of that instant Latham  carry the note to Dodson but it do not appear that Dodson at the time he  receive they have any notice that peel be become a bankrupt the present bill  be bring by the assignee under the Commission of bankruptcy against Dodson and  peel pray that the deed of may may be set aside as be void against the  plaintiff or at least that it may only stand as a security for so much money  as shall appear to be good fide advance Barnardiston Lord chancellor say there  be three question in the present case proper for his consideration saint  whether that part of the assignment of may which relate to the ship be not  void by the statute of James c see dly suppose the whole of the assignment be  good in point of law notwithstanding that statute for what sum that assignment  shall stand a security and dly whether Dodson be entitle to the banknote that  be send to he with regard to the first of these question his lordship say it  be a point of great consequence and he do not remember any one case that be  ever determine upon that statute the only case that have be cite by the  counsel be that of Stephens and sole determine by Lord Talbot the word of the  Act be and for that it often fall out that many person before they become  bankrupt do convey their good to other man upon good consideration yet still  do keep the same and be repute the owner thereof and dispose of the same as  their own be it enact that if at any time hereafter any person or person shall  become bankrupt and at such time as they shall become bankrupt shall by the  consent and permission of the true owner and proprietor have in their  possession order and disposition any good or chattel whereof they shall be  repute owner and take upon they the sale alteration or disposition as owner  that in every such case the commissioner or the great part of they shall have  power to sell and dispose the same to and for the benefit of the creditor  which shall seek relief by the Commission as full as any other part of the  estate of the bankrupt it have be insist that a assignment by way of mortgage  be within the meaning of this clause of the Act but his lordship say he very  much doubt whether it be the word of the recital be for that it often fall out  that many person before they become bankrupt do convey their good to other man  and it have be Barnardiston true observe at the bar that these word rather  seem to import a absolute assignment than a assignment by way of mortgage a  mortgage in this court be consider mere as a pledge and the enact clause speak  of the bankrupt retain the possession of the good with the consent of the  proprietary who be the proprietary be it the pawnor or the pawnee in  consideration of this court it must be the pawnor the other have only a  special property for a particular purpose subject to a redemption so even at  law the person that pledge good be consider as have the absolute property if  these thing be so peel in the present case must be consider as the owner of  the ship himself and he enjoy the possession of they by the consent of another  who have only a special property in they be that the true construction of the  Act which be contend for on the part of the plaintiff the question must often  have be determine in their favour for nothing be more common than to make  Barnardiston er p security of ship and notwithstanding that for the party make  the security to retain the possession of they so likewise bill of sale be  often make of good beyond sea and yet the possession of those good continue in  the hand of their factor in Trinity vacation there be the case of Jacob and  shepherd to the follow effect that be a bill bring by assignee under a  Commission of bankruptcy to set aside a deed on the head of fraud which be  execute by the bankrupt the fact of that case be to the follow effect lee a  short time before his bankruptcy make a bill of sale of part of his effect to  two or three of his creditor in trust that out of the money arise therefrom  they shall pay themselves and such other creditor as lee shall appoint a bill  be bring in order to set aside this bill of sale two question there arise one  whether the deed can be set aside on the head of actual fraud the other  suppose there be not actual fraud whether Barnardiston it can not be set aside  on the account of its be make in fraud of the law concern bankrupt by reason  of its tendency to prevent that equitable distribution of the bankrupt estate  which those law require this Cause be first of all hear at the roll and his  honour be of opinion that there do not appear to be actual fraud but that the  deed ought to be set aside by reason of its trade to prevent that equitable  distribution of the bankrupt effect which the law relate to bankrupt require  and for that reason his honour set aside the deed from this decree there be a  appeal before Lord king in the Michaelmas term follow that chancellor be of  opinion that there be no ground for a court of equity to interpose in relation  to the set aside that deed that it ought to take its fate here as it will at  law namely if a court of law will adjudge the deed to be void that it ought to  be adjudge to be void in equity but if a court of law will adjudge it to be  good that it ought to be adjudge good in a court of equity likewise but that  chancellor say far that consider lee have by this bill of sale dispose of so  great a part of his effect and that with a intention of defraud severe of his  creditor possible the execution of that deed may of it self amount to a Act of  bankruptcy for which reason a issue be there direct to try whether by the  execution of that deed the party do not become a bankrupt from this case his  lordship say this inference may be draw that if the court have any notion at  that time that the direction that be there give will have be out of the case  for which reason his lordship say he do believe that till the case of Stephens  and sole which have be cite it be never imagine that such a case as the  present one can be within the relief of this Act of parliament and his  lordship say it be not fit that so considerable a question as this arise upon  such a Act of par Barnardiston liament shall be determine in this court but it  ought to be try at law for which reason a issue must be direct to try this  point and the proper method of try it will be in a feign action and not in a  action of trover the next question proper to be consider arise upon the deed  of may and the question be whether the objection make by the counsel for the  plaintiff to this deed be of such a nature as to make it proper to inquire  into the consideration of that deed and his lordship opinion be that the  objection to it be so strong as to make it proper that a inquiry shall be make  concern the quantum of the consideration upon which that deed be make consider  the nature of the present case here be debt insist to be grow for a great  length of time from peel to Dodson No one account be pretend to have be state  this deed of may recite that pound be then in hand pay which be contrary to  the fact as be agree on all hand and therefore there be a necessity to enter  into the case to see what the true consideration real be on the that of  September the security for the sum that be then due be cancel and one bind and  letter of attorney to confess a judgement be give in the room of they for  pound on the d of October follow peel make a assignment to Dodson of certain  part of his effect by way of security for pound on the that of January follow  there be a endorsement make on the back of that deed that it shall stand as a  security for pound and at the same time it be agree that it shall far stand as  a security for pound more if that sum shall afterward be advance on the saint  of April a memorandum be make that that sum be advance accord on the saint of  June follow another assignment be make by way of security for pound the  suddenness of these security one Barnardiston er p upon another the growth of  the sum the very act themselves speak that there be a necessity here that the  consideration of they shall be inquire into and where security have be  accumulate so frequent Barnardiston one upon another that have be a reason for  direct such a inquiry and what be the proof that be make here of actual  payment of the ConsiderationMoney grow and Harrison be the subscribe witness  to this deed and likewise to the former security Harrison be dead at the time  that the present suit be commence grow be examine in relation to the  consideration of these several deed upon his examination he swear that he  remember particular that at the time the deed of October be make at the time  the deed of April be make and at the time the last mention deed of may be make  peel acknowledge the receipt of all the several sum for which those deed be  make a security but that be impossible to be true for at the time the deed of  may be make accord to dodson own account of the matter half a year interest be  add to the principal which half year interest be not due till the December  follow and that circumstance of interest be accumulate before it become due  have be a ingredient for inquire into the consideration of a security though  it be true in the present case that the whole sum of pound be not to carry  interest till the December follow in the case of sir Thomas Meyrs before Lord  Harcourt a circumstance of this sort be lie hold of and as this observation  may be make on the deed of may consider how this operate on the former  security it be a argument that great part of the consideration of those  security be make up of accumulate interest and when the present case be attend  with the other circumstance likewise of there never be any account make up the  court must direct a inquiry to be make to see what be real due on those  security however his lordship say he will not require proof to be make of  actual payment of every sum though that have sometime be require in these sort  of case but will Barnardiston allow the party to give such evidence of payment  as can be give consider the nature of the case the remain question to be  consider relate to the two banknote it appear that peel leave his house the  that of February and never return again on the that of that instant peel go to  the house of Latham and tell he he be force to hide and desire he to carry two  banknote of pound each to Dodson towards payment of part of his debt on the  that of that instant Latham carry the note to Dodson but it do not appear that  Dodson at the time he receive they have any notice that peel be become a  bankrupt it have be say that this payment to Dodson be a void payment and it  be indeed true that if the Act of bankruptcy be commit on the that of February  the payment can be good though Dodson have no notice of the bankruptcy at the  time the payment be make but that be often very hard upon creditor and the  court of law in such case will hold the party to the strict rule for which  reason assignee under a Commission of bankruptcy can bring such a action for  the money by which they can consider it as money receive to their use but must  bring a action of trover for it and the reason be that they can insist upon  have the money by way of contract but as a Tort this be like the case where a  action be bring for money win at Play which must be a action of trover his  lordship say in the present case he will direct a issue to try at what time  peel become a bankrupt by reason that there must be another issue direct in  this Cause as have be before mention though otherwise he will not have do it  and so his lordship be please to decree accord