the one all was law, as with the other all was poetry. Coke's felicitous exuberance on his own themes,1 gives an air of meagreness and sterility to the legal compositions of Bacon himself, who reluctantly confesses the wonderful transcendency of his hated rival. Yet partial as we are to the First Institute, and persuaded that he who wishes to become that rare unfashionable being, a deep real-property lawyer, must devote his days and nights to its pages, we would not give it to the pupil, until he has received a clearer insight into conveyancing than he can obtain from Blackstone. We therefore think that there is still a chasm; and we, it is hoped, shall not be deemed presumptuous in attempting to fill it up. For this purpose we shall give in our successive numbers, a series of papers on conveyancing, in which we shall aim, in an easy and familiar style, to develope its principles and explain its practice. Our plan will be simple and popular; we trust it will be found useful. We shall proceed at once to the system in its present modification, and shall consequently presuppose that the reader has crossed its threshold, though he may not have explored its dark and intricate interior.

AN INQUIRY INTO THE OPERATION OF THE LATE BANKRUPT ACT, 6G. IV. C. 16. WITH EXCLUSIVE REFERENCE TO REAL PROPERTY.

THE present bankrupt laws seem at length to have acquired some degree of stability, and their latest modification with respect to land is deserving of serious attention. We do not, however, profess to descend into all the detail which this extensive topic admits of: our proposed limits would be inconsistent with such an attempt, and the multitude of works which have lately

1 To appreciate this we must read his reports.

* We allude to the admonitory letter with which Bacon insulted Coke, immediately after the latter's removal from the situation of Chief Justice. "While you speak in your element, the law, no man ordinarily equals you; but, &c."

appeared on the bankrupt laws, render it unnecessary. Our particular, if not our only endeavour, will therefore be to evince the peculiar effects of the last bankrupt act1 on real property, and to correct the errors into which we presume to think some modern writers have fallen into on this department of the doctrine.

I. It is laid down by a popular writer on this subject as a general rule, that all the property of the bankrupt, real and personal, in possession, remainder, or reversion, to which he was entitled at the act of bankruptcy or afterwards, is vested in the assignees by the assignment and bargain and sale; and his acts thenceforth, with reference to this property, are considered, to all intents and purposes, as the acts of a stranger. To which rule (he continues) some exceptions have been made by the statute ; which he accordingly proceeds to notice.

The learned author cites no authority for this position, which, however, is in conformity with the opinion which, it is believed, very generally prevails in the profession. But since the late changes in the bankrupt laws, that opinion requires consideration. It is observable, that the doctrine of relation to the act of bankruptcy, so as to vest the bankrupt's freehold in the assignees from that time, has been negatived by an express decision, in which, upon a question arising whether an ejectment by the assignees on a demise laid between the act of bankruptcy and the bargain and sale could be maintained, the court held that it could not, and that the freehold remained in the bankrupt, though not beneficially, until taken out of him by the conveyance. This is an extremely important case; but from the manner in which some modern writers have expressed themselves, it seems to have escaped their notice. Mr. Preston, for instance, says that the relation of the title of the assignees is, generally speaking, to the time at which the act of bankruptcy was committed. Therefore, says he, if a man commit. an act of bankruptcy, and afterwards marry or sell, the dower of the wife, or title of the purchaser, will be defeated. As

2 Archbold's B. Law, 124. 2d edit.

16 G. 4. c. 16. Doe v. Mitchell, 2 Maule & Sel. 446. See also T. Jon. 196. 1 Vent. 360, 12 Mod. 3. 5 Mad. 282.

1 Prest. Abstr. 168.

the judges who decided the cases subverting the premises from which these and other conclusions might be drawn, positively negatived the retrospective operation of that assurance as to the legal estate, it should seem to follow, that the bankrupt holds the freehold during the intermediate period as a trustee ; and if equity adopted this doctrine without giving it a specific modification, and no statutory provision, either expressly or impliedly, met the case, it is evident that there would be some acts by which the bankrupt may defeat the prospective right of the assignees. For if he is a trustee, and might exercise over the legal estate the same powers which belong to any other trustee, he might at any time before the conveyance to the assignees, give a good title to a purchaser for a valuable consideration, and without notice of the act of bankruptcy, &c. When Blackstone lays it down that "all transactions of the bankrupt, with regard to the alienation of his property, are absolutely void;" he expressly grounds his proposition on the assumption that the "commission and the property of the assignees shall have a relation or reference back to the act of bankruptcy ;" and therefore that principle, if it ever existed, being now subverted as to the real estate, it is certain that the conveyance of the bankrupt before the conveyance to the assignees, will pass the legal, and (if equity has not made the case an anomaly) the beneficial interest also, under the circumstances above adverted to, unless, as we have already hinted, the statute law has deprived it of this power. This draws our attention to the language of the late bankrupt act with reference to the present point; for as it expressly repeals all the previous acts, it is now unnecessary to inquire what peculiar effect any of those may be supposed to have produced. The criterion by which we must determine the validity of the bankrupt's conveyance to a bona fide purchaser without notice, when the question arises whether, not being within the special protection of a statute, it is supportable as a conveyance from a trustee under the general doctrines of the courts of equity, is the eighty-first section of the 6G.4. c.16. Now that clause enacts that all conveyances, &c. by the bank1 2 Comm. 485., citing 4 Burr. 32.

2 Mr. Sugden (Vendors, 667-9.) seems to be against us here; but we are at a loss to account for his opinion. In the 5 G. 4. c.98. as well as in the last, 6 G. 4, c.16. the repeal is express.

rupt, bona fide made more than two calendar months before the date and issuing of the commission against him, shall be valid, notwithstanding any prior act of bankruptcy, provided the purchaser had not, at the time of such conveyance, notice of such act of bankruptcy. The statute then proceeds to declare what shall henceforth constitute notice. Now the language of this statute, we must observe, is merely affirmative: it gives validity to any conveyance by the bankrupt when made according to its provisions; but it does not expressly nullify any conveyance by him which would be valid otherwise, and without reference to any antecedent statute. Its terms are not exclusive; and, as there can be no doubt of the intent of the legislature, the act was probably framed under an erroneous impression of the doctrine to which we have adverted. It adopts the language of Romilly's act; but that statute was correctly expressed, because its provisions have relation to the statute of Elizabeth, which made any assurance by the bankrupt after bankruptcy (that is, after the act of bankruptcy) void, though to purchasers bona fide and without notice. And as it was by virtue of this positive enactment, and not of any principle, that the conveyances of a bankrupt after the act of bankruptcy were nullities, it should seem to follow, that on the repeal of that statute, it again became necessary to annul the conveyances of the bankrupt by a legislative declaration. Still, however, as the intent of the new statute plainly appears, we may perhaps conclude that, were the point to be raised and agitated, the courts would hold, that a conveyance by a bankrupt within two months of the date and issuing of the commission, would be void, notwithstanding the sale were perfectly bonâ fide, and the purchaser had no notice. But assuming the soundness of the foregoing data, the statute to have been accurate on this point, should not only have expressly affirmed conveyances made a given time before a certain event, viz. the issuing of the commission, but should likewise have expressly nullified all conveyances of the bankrupt, which were not in conformity with its requisitions.

II. We shall now proceed to the mode of conveyance by the commissioners to the assignees. The assurance which

1 13 El. c. 7.

2 See For. 66, 67.

3

the statute requires is "a deed indented and enrolled in any of his majesty's courts of record." It is, we must observe, altogether sui generis; the execution of a statute power, equally differing from conveyances at common law, and those which are derived from the statute of uses, on the one hand, and from appointments in pursuance of powers contained in common assurances and operating by way of use, on the other. Thus neither of the former can transfer any contingent or executory interest, but the deed of the commissioners includes not merely estates in reversion and remainder, as well as in possession, but even possibilities. And it is observable that the decisions have not merely established that a contingent interest in realty will pass under the deed of the commissioners, when the event only is contingent, and the person is ascertained, but likewise an interest contingent on account of the uncertainty of the person (as in the instance of a limitation to two persons for their lives, remainder to the survivor of them in fee) without respecting the analogy to the settled distinctions on this point, with reference to the descendability and devisability of contingent and executory interests.5 Thus, in an early case, where an estate was devised by a father to such of his children as should be living at the death of their mother, and during the mother's life the son became a bankrupt, the court held that the son had such an interest as would pass by the assignment of the commissioners. 6 Still, however, the possibility of a descent, or what (in a case on another branch of law) Lord Kenyon once called the hope of a succession, is not assignable by the commissioners. 8

III. From not understanding the precise nature of the assignment of the commissioners, and from attaching an undue importance to the title which it generally bears of a bargain and sale, some modern writers have said, that if the commissioners convey by bargain and sale, an enrolment within six months is

1 Sec. 64.

2 Fearne, 366. 1 Sand. Uses, 108.

3 Mr. Deacon (Law of Bankruptcy, vol. i. 361.) says, "this seems to follow from the language of the sixty-fourth section of the new act." The language of the act is lands, tenements, and hereditaments. Consequently reversions and vested remainders being included under both the latter words, are expressly comprised in it.

4 3 P. Wms. 132.

5 Hen. Bl. 30. ibid. 33. 3 T. Rep. 88.

• Higden v. Williamson, 3 P. Wms. 132. 7 In Roe v. Jones, 1 Hen. Bl. 30.

8 Moth v. Frome, Amb. 394.