
    * Edward St. Loe Livermore, Assignee of Edmund Bartlet, Jun., a Bankrupt, versus Philip Bagley.
    A colorable sale and transfer of personal property, although void as against the creditors of the vendor, do not amount to an act of bankruptcy within the bankrupt law of the United States, unless executed by a fraudulent deed or conveyance.
    
    The concealment of goods to prevent their being taken in execution, to be within that law, must be an actual, not a constructive concealment of them, by the bankrupt himself, or by his procurement, while they continue, in his intentions, his own goods.
    If a sheriff sell goods upon an execution, without legally advertising the sale, he is liable in an action of the case for a false return; but not in an action of trover brought by the judgment debtor.
    This was trover for sundry articles formerly the property of the bankrupt, and which the plaintiff charges the defendant with having converted to his own use.
    The cause was tried at the sittings after November term, 1806 before Seivall, J., whose report follows.
    “ The Newburyport Marine Insurance Company, in the Court of Common Pleas for the county of Essex, July term, 1802, recovered a judgment against Edmund Bartlet, since declared a bankrupt, and on the 10th day of the same July sued out an execution thereupon. In the same month, Richard Bartlet was employed by the said Edmund, and his father, William Bartlet, to settle Edmund’s books, and having ascertained, among others, the balance due from him to his brother-in-law, George Jenkins, a negotiable note was given therefor by the said Edmund, to the said George, dated August 2d, 1802, for the sum of 2556 dollars, 75 cents. About this time, also, the said Richard prepared a list of Edmund’s debts generally, which, with a statement of his affairs, were laid before his creditors at a meeting called for the purpose. At that meeting, a Mr. Cartel and another person being present for the Insurance Company. Edmund requested to have the advice of his creditors; to which the said Carter replied that the company had no opinion or advice to give, but came to hear his proposals. At a second meeting of the creditors, holden a few days after the first, Mr. Stocker, president of the company, being present in their behalf, certain proposals by W. Bartlet, the father, for the settlement of his son’s affairs, were laid before the creditors; with which they declared [ * 488 ] themselves satisfied, * and ready to accept them. At a third meeting of the creditors, after writings had been prepared pursuant to the proposals of W. Bartlet, Mr. Jackson, counsel for the Insurance Company, attended in their behalf, and gave notice that the company would not accede to the intended compromise, unless there could be a previous adjustment of a dispute between them and the said Edmund respecting a loss claimed by him upon a certain policy of insurance.”
    “ It being thus understood that Edmund Bartlet was in doubtful circumstances, and there being in the hands of the defendant, a deputy sheriff for the said county, the execution sued out by the-Insurance Company as aforesaid; the said Edmund being at the counting-house of his father on the 17th of September, 1802, the father inquired whether there were not several articles belonging to the new vessel (referring to a vessel then lately built by the said Edmund), which lay exposed to be taken by an attachment or execution, and said, if so, they ought to be secured by a bill of them to him, and he would take care of them. A bill of parcels without seal was then made of a quantity of rigging and two boats, articles which had been provided for the said new vessel, which was signed by the said Edmund, and thereby the articles mentioned therein were transferred to the father as bought by him ; but no money was then paid, nor any credit given for the amount, although he was at that time a creditor to his son for a very large amount. The father had the rigging removed immediately from Edmund’s warehouse, or one occupied by him, to a warehouse of the said William, near where the said new vessel lay at that time ; and it appeared that the whole of the rigging was soon afterwards put upon that vessel; but the boats mentioned in the bill were never obtained, the builder, who had not been paid for them, refusing to deliver them.”
    “ On the 21st of September, the defendant, Bagley, by virtue oí the execution in his hands in favor of the said Insurance Company, took the articles mentioned in the plaintiff’s declaration, being the goods of the said Edmund.”
    
    Afterwards, on the same day, the said Bagley received of Mr. Hodge, an attorney at law, a writ against Edmund * Bartlet at the suit of Oliver Osgood, which had been [ * 489 ] prepared in the July preceding at his request, and by concert between him and tne said Edmund, with the intention of making him a bankrupt. The service of it was deferred at the request of Edmund Bartlet, because, as he said, he was not then ready. But September 21st, Edmund Bartlet requested Bagley to apply for the writ; and by agreement and concert between them, the said Bagley, at the hour of nine or later in the evening, applied at the dwelling-house of Edmund Bartlet, and endeavored to serve the writ upon him, but was denied admittance by the said Edmund, then in the house.”
    “ On the 24th of the same month, the district judge granted a commission of bankruptcy against the said Edmund Bartlet, at the suit and upon the petition of the said George Jenkins, and under that commission Edmund Bartlet has been since declared a bankrupt, and the said Jenkins’s debts, viz., the said note of 2556 dollars, 75 cents, given in the August preceding, and another note of 400 dollars, dated June 22d, 1801, have been proved and allowed. The defendant admits that Edmund Bartlet was a trader within the meaning of the statute of bankruptcy.”
    “ On the 25th of September, William Bartlet notified the defendant that a commission of bankruptcy had been taken out against the said Edmund, and forbade any sale of the goods taken by force of the said execution; but the defendant proceeded notwithstanding, and on the same day sold the said goods at public auction for the prices, and according to the return of the said execution, a copy of which is in the case. The sale was pursuant to advertisements made as the law requires, excepting that certain articles, taken and sold under the execution, had not been spe cifically mentioned in the previous advertisements.”
    “ There was no evidence that Jenkins, the petitioning creditor, .had any knowledge of the concert and agreement between Edmund Bartlet and the said Osgood and Bagley respecting the writ, which the latter attempted to serve on the 21st of September; and it appeared that in the petition, upon which the said commission issued, there was no specification of any act of bankruptcy, | * 490 ] biit several acts of * bankruptcy, such as the statute requires to be proved, were alleged in general terms.”
    “ It also appeared that upon certain allegations of the said Insutanee Company, and their prayer against the said commission, and to have the same superseded, certain proceedings and a verdict of a jury thereon were had before the said district judge, copies of which are in the case.”
    “ It also appeared that the new vessel, upon which the rigging transferred by the said Edmund to his father was finally put, had been, before the said transfer, mortgaged to one Pierce to secure a debt of the said Edmund, and he had assigned her to the said William, upon receiving his personal security for the same debt. And after the said rigging was put upon the vessel, the said William sold the same, and accounted with the plaintiff for the proceeds, and deducting the sum due to the said Pierce, and some other sums due to himself, the said William paid a balance to the plaintiff as assignee of Edmund Bartlet.”
    
    “Upon this evidence the jury returned a verdict for the plain tiff, and assessed his damages at 4171 dollars, 55 cents, which was taken subject to the opinion of the Court upon the case.”
    
      The principal question which came on at this term to be argued was, whether Edmund Bartlet, the supposed bankrupt, had committed an act of bankruptcy before the 21st day of September, 1802, the day when the defendant’s qualified property in the goods commenced by his seizing them upon the execution which he then held in favor of the Neioburyport Marine Insurance Company
    
    
      Livermore said he should contend that the sale by the bankrupt to his father, on the 17th of September, was a complete act of bankruptcy, within the description in the statute for establishing a uniform system of bankruptcy throughout the United States. 1st. It was making a fraudulent conveyance of his chattels, and if he should fail in establishing this point, he should argue, 2. That it was a concealing of his goods to prevent their being taken in execution.
    
    He was aware that an opinion was prevalent that a fraudulent conveyance, within the meaning of this statute, must be * by deed under seal. This opinion, he hoped to show, [ * 491 J was founded neither in principle nor precedent, but has obtained a currency merely from an obiter opinion that dropped from Lord Mansfield, while reporting the evidence at the trial of the action Martin & Al., Assignees, vs. Pewtress & Al. 
      . As he should have to contend against the opinion of a very great man, ivhose most hasty sayings had been always viewed with respect, Livermore prayed permission to treat the subject much at large.
    The common idea attached to the word conveyance is no more than transfer, and that this is also the correct and legal meaning of it will appear from an examination into its origin, and its constant use by writers on law.
    Before the time of Lord Chief Justice Cake, all the reports and treatises upon law were written either in Latin or French; and most of the reports continued to be written in the old French down to the latter part of the reign of Charles the Second. The word convey is manifestly derived from conveho, to carry. The word conTiyer, in the Norman French, although derived from the same root, was never used to signify the alienation of estate. This word is not to be found in the abridgments of Fitzherbert or Brooke. In Perkins’s treatise, said to be first published 24th of Hen. 8, the word conveyer is used to signify the carrying water in pipes, and it is found in no other sense, though the book is entitled by its translator, “ A treatise on the laws of England on the various branches of con veyancing.” Littleton uses the word in a different sense, viz. to derive or transmit title by descent . Since the time of Lord Coke, the word has come into very extensive use.
    
      The word graunte [now grant] was generally used to denote the transfer of estate. Fitzherbert, Brooke, and every one who has published a digest or abridgment of the law down to the present day, place the law relating to the transfer of real or personal estate under this head. Grant is used as synonymous with gift, and also with transfer, and sale 
      . Littleton 
       speaks of granting [ * 492 ] by deed and without deed; * and he says  the opera tive words in a deed of alienation, or as is commonl} said, conveyance, are dedi, concessi, conftrmavi. But the word convexi was never used, and indeed would be absurd.
    Lord Coke having first used it in English to signify the alienation of estate, the sense in which he used it is to be attended to. In pages 9 and 10 of his commentary, he uses it as synonymous with feoffment, grant and alienation, so also 247, b. 336, a.; but he does not appear to consider it as technical, which may be further argued from his giving no etymology of it, which he seldom fails to do, vhen he first uses a word as technical. A man, says he (page 10), may purchase lands by ten manner of conveyances, among which he specifies feoffment, fine, common recovery, exchange and devise, all of which may be without deed. Surrender is called a conveyance ; yet copyhold estates did not pass by deed, but by surrender .
    Lord Chancellor Bacon, in his reading upon the statute of uses, speaks of conveyances by deed, by livery, and by word.
    
    
      Comyns (Bankrupt, C. 8), in construing the stat. 1 Jac. c. 15, says, “and, therefore, if he makes a grant, or conveyance fraudulent within the stat. 13 El. or 27 El., it makes him a bankrupt; and as to what conveyances are fraudulent, refers to Covin, B. 2, &c., where are mentioned a great variety of conveyances which were not by deed. And from any thing to be found in Comyns, no idea can be entertained that he conceived a fraudulent grant or conveyance, to constitute an act of bankruptcy, must necessarily be a deed, or instrument under seal.
    
      Bacon (Abr. title Fraud, B.), speaking of fraudulent conveyances, mentions a sale in market overt, which certainly is not to be supposed by deed.
    
      Dalrymple, in his essay on feudal property (page 238), speaks of parole conveyances of lands, which remained until abolished b) • stat. 29 Car. 2, c. 3.—Saunders 
      , speaking of conveyances by feoffment, says the charter of feoffment was by no means a necessary part of the conveyance. Finer 
       says, “ By sale a [ * 493 ] .non may convey his goods to * another,” and “ all chattels may be granted or given without deed, except in special cases.”
    Sir William Blackstone treats the subject of passing estates from one to another under the head of alienation, and it is certain he considers the word conveyance to have no other import than transfer. He enumerates and describes several species of conveyances, which cannot be by deed. In discussing the subject of title to things personal by gift, grant and contract, he says such gift, &c., may be done by writing, or by word of mouth, attested by sufficient evidence. And he immediately adds, “ but this conveyance, when merely voluntary, is somewhat suspicious,” &c.
    As far then as common sense, and the authority of the most eminent lawyers from the time of Edward the 4th, to the time of Justice Blackstone, can be a rule, nothing more is meant by a fraudulent grant or conveyance, than a fraudulent alienation or transfer; and this according to the subject matter.
    An examination of the statutes bearing on this point will lead to the same conclusion. To this effect, the statute of uses, 27 H. 8. c. 10 ; the statute against fraudulent deeds and alienations, &c.. 13 Eliz. c. 5. § 2, 3, 6 ; the statute of bankrupts, 1 Jac. 1. c. 15. <§> 2, 5, may be referred to.
    When the last-cited statute was enacted, all estates real and personal, except such as lie in grant, might be alienated or conveyed without deed. Now the 5th section of that statute gives power to the commissioners to sell and dispose of any manors, &c., goods or chattels conveyed by the bankrupt to his children or other persons, not bona fid.e purchased, conveyed or transferred. There is a similar provision in the 17th section of the act of the United States. If the construction now contended for is not the true one, it must follow, that in England, at the time of passing the statute of James 1; a man might wholly evade this provision by taking care not to make the transfer by deed; and in this country might have done the same as to personal chattels. In this place it may be pertinent to notice that by the additional statute of 21 Jac. 1, it is provided that all the statutes of * bankruptcy shall be [ * 494 J largely and beneficially construed and expounded for the aid, help and relief of the creditors, &c. To give the statutes a construction, which would enable the bankrupt to make away with hi property, can hardly be said to comport with the intention of th legislature.
    The 7th section of this last statute inflicts a punishment upon bankrupt, who shall be found to have fraudulently conveyed away his goods, chattels, land or tenements to the value of twenty pounds, it would have been a singular circumstance, that a person indicted upon this section, and on trial before Lord Mansfield, should avail himself of his lordship’s doctrine, and say he had made no con veyance, because it was not done by deed, or writing under seal, but merely by a bill of parcels. And the bankrupt laws, being penal, must be construed strictly, for which also he would have his lordship’s authority.
    As it will doubtless be contended that the statute of James has had a different construction from that which the plaintiff in the case at bai insists on, it will be allowed to trace the opinion to its origin, beginning with the last case that bears upon the question, and thence proceeding upwards.
    
      Manton & Al. vs. Moore 
       was a case of a bill of sale under seal, for it is called a deed; consequently this point could not have been decided, and nothing was said on the subject, except by Lord Kenyon, who observed “ that a conveyance of goods without deed is fraudulent, unless possession of the goods be given; if it be by deed, it is fraudulent and an act of bankruptcy. Here at least we have his lordship’s opinion that there may be a fraudulent conveyance of goods without deed; and the statute says that a fraudulent conveyance of goods shall0be an act of bankruptcy.
    In Whitwell & Al. vs. Thompson 
      
      , the act of bankruptcy proved, and so decided to be by Lord Kenyon, was a deed executed May 30th, 1789. But a certain agreement, in its nature fraudulent against creditors, dated May 24th, was admitted by counsel not to be an act of bankruptcy; and the obvious reason of the admission was, that the deed of May 30th answered all their pur- [ * 495 ] pose. The question on * the first paper never came before the Court; and if it had, the admission of counsel at a trial does not prove the law.
    The question in the case Ex parte Cockshott 
       was whether an act of bankruptcy had been committed by the fraudulent surrender of a copyhold estate. It was contended by Cook, as counsel, that this could not be an act of bankruptcy, because not by deed ; and he cited the case of Martin 8f Al. vs. Pewtress Al. to show that Lord Mansfield had so determined. But the lord chancellor decided upon a very different point, without noticing the argument of Mr. Cook, viz. that- a copyhold estate was not liable to an elegit or fieri facias; consequently such surrender could not delay creditors, and therefore was no act of bankruptcy.
    In Hassells & Al. vs. Simpson 
      , the assignment was by deed; there was therefore no occasion for the observation of Lord Mansfield, that “ a fraudulent disposition of a trader’s property is void against creditors; and if it is done by deed, it is, by force of the statute of James, an act of bankruptcy.” There could be no decision upon this point, and no other person made any observation upon the subject.
    The question in Rust & Al vs. Cooper 
       was, whether a certain bill of parcels made by the bankrupts to the defendant was fraudulent. Whether it constituted an act of bankruptcy or not, was wholly immaterial. If it was not fraudulent, it could not be an act of bankruptcy; if it was, the plaintiffs would recover, as there had been a clear act of bankruptcy independent of this transaction. It was determined to be fraudulent, and the plaintiff recovered. Lord Mansfield, in the course of a long argument, said, “ But I am of opinion, that no fraudulent transaction, which is not a deed, is in itself an act of bankruptcy.”
    
      Clavey & Al. vs. Haley Al. 
      . The case was the fraudulent admission of a debt, and suffering judgment and execution to issue, whereby the bankrupt’s goods were taken.
    The counsel stated the questions to be, 1. Whether the execution was a fraudulent attachment, &c. 2. Whether it was * a fraudulent conveyance. Lord Mansfield interrupted [ * 496 ] the counsel, and said, “A fraudulent conveyance,to constitute an act of bankruptcy, must be by deed.” Mr. Cowper then confined himself to the first question. The second point was not argued, nor did the Court give any opinion upon it.
    The case of Harman & Al. vs. Fisher 
       was trover for two promissory notes. The question arose upon the time when the notes were delivered to the defendant, and this was necessarily the only matter under consideration; yet Lord Mansfield says, “If it had been oy deed, it would itself have been an act of bankruptcy.” The case of Linton vs. Bartlet, cited by Lord Mansfield,, was of a transaction by deed, which was decided to be an act of bankruptcy; but the question whether, if the same transaction had been by writing without seal, it would have been an act of bankruptcy, was not and could not be agitated or determined.
    
      Martin &/• AL vs. Pewtress &/■ AL, before referred to, is the first case, in which the distinction was attempted to be made, and that solely by Lord Mansfield. The case was decided in favor of the plaintiffs, upon the ground of fraud in the transaction, which rendered the sale of the goods a nullity; and there having been a clear act of bankruptcy proved, it was quite unnecessary that this transaction should be considered an act of bankruptcy in itself. It was argued for the plaintiffs by three very eminent lawyers, who contended that it was a fraud, and a conveyance of the goods (here was no deed) without i valuable consideration, and amounted to an act of bankruptcy. The defendant’s counsel say not a word whether it was a conveyance or not,, but confine themselves to two other points, which were the only points adjudged. Lord Mansfield seems the only person, who had formed an opinion that there was no conveyance, so as to constitute an act of bankruptcy. Yates, J., confines himself to the real points before the Court. Aston, J., adopts the opinion of Lord Mansfield implicitly. No authorities are cited, nor any reason given by Lord Mansfield for his opinion, except that, having dropped it at nisi prius, he is determined to adhere [ * 497 ] to it. He thinks deeds and conveyance merely * synonymous, against the whole current of legal, judicial and parliamentary authorities.
    
      Alderson & Al. vs. Temple 
      . A note sent by post to the defendant on the eve of bankruptcy. The transaction was adjudged fraudulent. Yates, J., says, “I doubt whether this was not itself an act of bankruptcy.” Aston, J., says, he did not conceive the statute reached choses in action; in all the rest he concurred.
    From the strictest examination of the books it appears, then, that there never bad been a serious adjudication, upon argument, that a fraudulent conveyance of a bankrupt’s estate or goods must necessarily be by a deed or sealed instrument, in order to constitute il an act of bankruptcy.
    If, after this collection of cases, which seem conclusive, the Court should be of opinion against the plaintiff on the first point, it was still to be contended, secondly, that here was a concealing of the bankrupt’s goods, to prevent their being taken in execution. This can hardly be made more plain or apparent than the report of the judge has made it. The bankrupt’s father inquires of him if there were not certain pieces of his property exposed to be taken in execution, and proposes to him to make a bill of them to him, and he would take care of them. This was accordingly done, and the articles were immediately conveyed to the warehouse of the father, and there, it may be presumed, were mixed with others of the same description, in which the father was a large dealer.
    
      Jackson, for the defendant,
    observed that the Newburyport Marine Insurance Company were the only party really interested in the defence of this action. It was on their execution that Bagley, as a deputy sheriff, took the goods for which the action is brought. They are fair creditors, pursuing their remedy with legal diligence; their title is perfectly equitable, and it is good against all the world, unless othe creditors, by pursuing their remedy in another mode, acquired a lega title to the goods in question prior to the levy by the defendant.
    
      There is no superiority, either at law or equity, in the kind of title relied on by the plaintiff. A commission of bankruptcy * is a statute execution against all the estate of [ * 498 ] the bankrupt, and is no more to be favored than any other execution. The defendant is in possession under a clear legal title, which cannot be divested but by a better and elder legal title in the plaintiff. ,
    There is much more reason in England to protect and favor a title under a commission of bankruptcy in preference to an execution, than there has ever been in this country; because there the system has been established for centuries; is incorporated with the whole body of their law; is deemed essential to their welfare as a commercial people; and from long use is as well understood by every merchant as any other part of their law. Yet there, a commission is so little favored in opposition to a common law title under an execution, that even where there is a clear, undisputed act of bankruptcy, if it appear that the commission was taken out with improper views, it will not prevail against a creditor upon execution .
    Here the bankrupt system must be considered as an innovation ; it was in. derogation of the common law and usages of the country; and whatever we may think of its utility, the legislature have seen fit to repeal the law. In the short period of its operation it was little understood, badly executed, and productive of no ad vantages that should entitle it to the favorable consideration of the Court. The present plaintiff, claiming under this law, in opposition to a valid and sufficient common law title, has the burden of proof, and should be held to bring himself strictly within that law, and to establish a perfect legal title under it.
    The first position taken by the plaintiff is, that here was a fraudu lent conveyance of the bankrupt’s goods and chattels; for proof of which he relies on a bill of parcels made by the bankrupt'of certain articles to his father, for which he signed a receipt.
    The statute of the United States, establishing the system of bankruptcy, is obviously penned with great care and attention. Instead of avoiding technical language and making use of * common words in the popular sense, as has been said [ * 499 ] to be generally the case in the acts of congress, this statute is made with a constant and studied reference to the English statutes of bankruptcy, and to the judicial constructions upon them. Thus in the case of Clavey & Al. vs. Haley (which was cited by the plaintiff, and in Harman vs. Spotswood 
      , an execution having been held not to be included under the words “ attached or sequestered,” used in the English statute; our legislature, in contemplation of those decisions, added to the words in the English statute. “ or taken in execution.” So in Thompson & Al. vs. Councell 
      , it was resolved that the bankrupt was not entitled to any maintenance out of his effects. Lord Mansfield, made the decision with reluctance, saying that it was a very hard case. Our legislature were of the same opinion, and made provision for it in the fifty-third section of the act. Under the statute of 21 Jac. 1, as to goods in possession of the bankrupt as reputed owner, &.C.. it had been doubted whether the preamble did not restrain the enacting words to goods which had formerly belonged to the bankrupt ; it was finally decided that it did not . But this having been questioned, our statute has omitted the preamble and preserved the enacting clause, 27, and thus obviates all doubt. In Cole vs. Davies &f Al. 
      , cited by Cooke (page 89), it was resolved, that “ conveying his goods out of his house, or concealing them,” &c., was not an act of bankruptcy. Our statute makes it so, and uses the precise words of Cooke.
    
    In all these cases, and many more, which might be instanced, it is impossible not to see that those who composed our statute were perfectly acquainted with the English statutes, and with the judicial constructions that had been made on all doubtful expressions. Where those constructions did not comport with their views, they altered the language ; but when they were satisfied with the interpretations, they adopted the same words, and undoubt- [ # 500 ] edly adopted the same construction, *whether technically strict, or broad and comprehensive.
    By the statute of 1 Jac. 1, c. 15, § 2, “making a fraudulent grant or conveyance,” &.C., and by our statute “ making a fraudulent conveyance ” is an act of bankruptcy. The English statute adds “ to the intent, or whereby his creditors may be defeated or delayed ; ” our statute prefaces all the acts of bankruptcy “ with intent unlawfully to delay or defraud his creditors.” If the word grant has any operative meaning distinct from conveyance, then by their law, making a fraudulent grant is one act of bankruptcy, and making a fraudulent conveyance is another; and our law has omitted the first, and adopted the second, in the enumeration of the several facts constituting an act of bankruptcy.
    But it is believed that these words are used in the English statute as synonymous, and that there is no case in which a distinction is made between them, or any consequence deduced from the use of the word grant in addition to conveyance. Lord Mans* 
      field, not less distinguished for his technical accuracy than for his wonderful acumen, seems to consider grant as superfluous. His words in the case of Alderson & Al. vs. Temple 
       are, “ The statute says—Fraudulent conveyances shall be an act of bankruptcy.”
    
    In England the judicial decisions have been uniform, that a fraudulent conveyance within this statute must be by some instrument under seal. Besides the cases referred to by the plaintiff, to which we also ask the attention of the Court, we mention Gayner’s case, cited 1 Burr. 477. Jacob vs. Shepherd, ibid. 478. Unwin vs. Oliver, ibid. 481. Small vs. Oudley, 2 P. Will. 427. Ryal vs. Rowles, 1 Atk. 175.—1 W. Black. 362. 441. 660.—2 W. Black. 996—3 Wils. 47.-3 Vesey, jun. 85.—1 Atk. 93. 154.—1 Sir. 165.—10 Mod. 431. 489.— Cowp. 629.—Doug. 86. 89. n. 39. 282. -—2 Ves. sen. 19.—Bul. N. P. 40.—1 Term R. 155.—2 Term. R. 594. in notis.—5 Term R. 530.—7 Term R. 67.—8 Term R. 140 ; in all which cases the same point came either directly or indirectly before different judges in all the courts; * or, it might have been stirred, if it had not been con- [ * 501 ] sidered as settled beyond question.
    In Clavey & Al. vs. Haley, Lord Mansfield says, “ a fraudulent conveyance must be by deed,” Cowp. 426, and afterwards, page 428, “ it might as well be argued whether an estate to a man and his heirs is a fee simple or not.”
    In Smith & Al. vs. Hodsdon 
      , a fraudulent transfer of goods by a bill of parcels was not considered to be an act of bankruptcy; and in Whitwell & Al. vs. Thompson 
      , it was agreed by Lord Kenyon and the counsel as a point perfectly settled.
    We apprehend it then to-be perfectly clear that a fraudulent conveyance, to constitute an act of bankruptcy in England, must be by some instrument under seal; and unless our legislature, in using these words, departed from the principle which clearly governed them in the other parts of this statute, they must have intended a conveyance by deed, and none other.
    But further, the Courts, in giving this construction to the statute, only adopted and conformed to, the true common law definition of a conveyance. This is never considered as the act of transferring lands or goods. A feoffment at common law by livery and seisin was never called a conveyance. A common sale and delivery of chattels was not considered to be a conveyance ; the bill of parcels, which sometimes accompanies such sale, is a mere memorandum of what has been done, viz. that such specific goods have been sold and delivered. They pass by the delix cry; for without that, certainly no property is transferred to the vendee; and a sale ana delivery is good, without any bill of parcels. This is a mercantile paper, and does not even import to be a conveyance ; it is merely a certificate, that the goods in the hands of the purchaser came fairly into his possession ; it enables him to make the proper entries in his books ; and it proves the number, quality, &e., of the goods purchased, against the seller, in case of any defect in the goods deliv ered. A sale cannot be without a delivery; a conveyance may be by deed alone. “If a man sell goods by deed, this alters the property, as between the parties, though without [ * 502 ] * consideration or delivery ” . So a promise by paroi without consideration is void ; but if it be by deed, covenant or debt will lie on it: it conveys to the obligee a right to the money, a property in the subject of the deed.
    As to the second point made by the plaintiff, viz. that this was an act of bankruptcy, as being a concealing of Ms goods to prevent their being taken in execution, it was not urged before the commissioners, nor before the District Court in the proceedings there; and it was never heard of by the defendant until the trial of this cause. The words of the statute are, “ with intent unlawfully to delay or defraud his creditors, secretly convey his goods out of his hor.se, or conceal them to prevent their being attached or taken in execi tian.” This, like most of the other acts of bankruptcy, consists in an unlawful intent coupled with the act . Suppose a merchant of good credit sends goods to a neighbor’s store, to secure them from fire or thieves; if it were done ever so secretly, it could not be considered an act of bankruptcy, unless done with intent unlawfully to ;onceal them from his creditors. Suppose such a merchant sends ihe rigging of his ship to the rigger’s workshop to be repaired ; this happens late in the evening, or with other circumstances of secrecy or concealment; could this be an act of bankruptcy ? It is necessary in this, as in most other acts of bankruptcy,- that the act should be done with an express view to the effect produced ; and not that the concealment should be a remote consequence of an act intended for another purpose, and in which this effect was not contemplated.
    Then were these goods in fact concealed ? And did Edmund Bartlet intend so to conceal them, to prevent their being taken in execution ? It is apparent that his whole intent was to transfer them to his father. And if he did intend to conceal them, they never were concealed.
    But further, if they were in fact concealed, it was not by the bankrupt. He had no further direction of them, after the bill of parcels was made; and can a man become bankrupt by the act of a third person, of which he has no control ? Suppose * he had delivered them to his father, to be sold for his [ * 503 ] account, and his father had hidden them; would this have been an act of bankruptcy in Edmund ?
    If it is an act of bankruptcy to remove goods from the possession of the owner, when in fact there was no intention of concealing them, then three or four of the acts of bankruptcy created by our statute might as well have been omitted. A man cannot “ cause his goods to be attached, sequestered, or taken in execution,” without their being removed from his possession, and concealed, as much as these goods were; or at least without putting it in the power of the person taking them to conceal them, as much as William Bartlet did the goods in this case.
    
      Dexter, on the same side,
    thought it must be unnecessary to press further the argument in support of what the plaintiff had been pleased to consider as a sudden and extra-judicial opinion of Lord Mansfield. Authorities of judges and lawyers, from the earliest records of the common law to the present time, might be adduced to show that the technical and proper meaning of conveyance was a writing under seal. For thirty-seven years this opinion has been acquiesced in by courts and counsel, as applied to this very subject, without being once questioned. To unsettle such opinions, upon etymological criticisms, were an opprobium • to a court of law, and would be of mischievous consequence. It is apparent that our legislature, in adopting the language of the British statutes, and also m varying in particular instances from that language, contemplated the judicial construction which had been made in the English courts as the true construction, and as that which would prevail in the Courts of the United States, upon questions arising under the law they were making. As questions under this statute may come before the Courts of the different states, it is highly important that there should be a uniformity in their respective decisions. Such a uniformity can rationally be expected in no other way than by a conformity of them all to English adjudications on questions precisely similar.
    There appear no particular reasons applicable to the point in question, which should induce the Court to vary from a decision *so long and quietly acquiesced in. It is of [ * 504 ] little consequence what specific acts are made acts of bankruptcy, nor is it a proper subject of regret that there are not more than there are. The Court will not certainly torture language for the sake of increasing the number. The great object of the bankrupt laws is to prevent the waste of an insolvent person’s estate, and to procure an equal distribution of it among all his creditors. It is another important object that those facts, which are to constitute an act of bankruptcy, should be certainly designated, and visible in their nature, that innocent persons be not entrapped. Many more acts might be mentioned, which are not enumerated, and which the common sense of mankind may think ought to have been inserted. But a judicial court must receive the laws as they are made; and, when a long course of decisions has ascertained the meaning of a particular word or phrase, such decisions should not for light reasons be shaken.
    If these observations are correct, it must be of little consequence to search into the reasons which led to those decisions. Yet in the present case many obvious and good reasons might be adduced. There are many doctrines and principles of the common law, the origin of which cannot be traced to any adjudged case ; but they seem to have been assumed like the postulata of geometricians; and where we find the Court and bar for a series of years acquiescing in such doctrines and principles, they must be received as better settled than they would be by a single adjudication, however solemn 4 may have been.
    The phrase in the statute is “ make, or cause to be made any fraudulent conveyance of his or her lands or chattels.” The plaintiff says a feoffment without deed is a valid conveyance. And this was true by the old common law; but before the statutes of bankrupt, written conveyances had wholly superseded the ancient manner of transferring a fee simple by livery and seisin only. There can be no doubt that in the statute of James 1., the legislature by fraudulent conveyance meant a conveyance in writing. It was L this species only that fraud could attach ; to speak of a fraudulent livery of seisin, which in its nature is an open and [ * 505 ] * notorious act, is a solecism. To make a conveyance necessarily implies the conveyance to be written. So early as the reign of James, this was the usual, if not the only mode of transferring estates in land. But if it had not been so intended at the time of making the statute, and the other mode of transfer was equally common, still, when a new mode became universal, as it certainly had long before the case of Martin Al. vs. Pewtress Sf Al., and when in fact there was no other valid and legal manner of conveying, every principle of construction required that the sratute should be interpreted to apply to the species of conveyance in use; as otherwise the intention of the law would be frustrated.
    If, as the plaintiff contends, the word conveyance means any mode of transferring property, we shall next hear that a bill of parcels is not necessary, that a mere oral transfer may constitute an act of bankruptcy, and this too of a single article sold in the shop of a trader for less than its value. But we believe that such impor tant effects were never intended to be produced by causes so light and transient. The position taken by the plaintiff serves to set in a still stronger light the necessity of using definite language, and such as is well and generally understood.
    The word conveyance has acquired so appropriate a meaning, that it is impossible to conceive the legislature using it in any other sense than as implying a deed or instrument under seal. We speak of a bargain being made for the purchase of an estate, and of an agreement to sell an estate, but no one ever imagined the conveyance completed until a deed was executed: so if we speak of a bill of sale of chattels, every one understands that it is the sealed instrument that effects the change of the property. When we speak of conveyancing, we are understood to mean the practice of preparing deeds for execution; a book upon conveyancing means a book con taining precedents or forms of the various kinds of deeds or sealed instruments. The whole current of authorities, and the use of the word in ordinary discourse, have perhaps made it superfluous to argue this point at so much length.
    *But the plaintiff says, if this was not a fraudulent [ * 506 ] conveyance by the bankrupt, still the transaction amounted to a concealing of his goods, to prevent their being taken in execution, and thus amounted to an act of bankruptcy.
    The words of the statute are, “ or shall secretly convey his or her goods out of his or her house, or conceal them to prevent their being taken in execution.” There is no pretence that the bankrupt removed these goods in any manner; and convey, in this sentence, must be understood to mean remove. The bill of parcels can' in no sense be such a conveying as is here intended. The goods in this case were removed, but not by Edmund Bartlet, nor by his agency or contrivance. The removal, to be within the statute, must also be secret; but here was no attempt at secrecy. They were transported in broad day, through the streets of a populous town, to an open store, and soon afterwards openly and fairly applied to the use for which they had been from the first intended. The plain and obvious meaning is, the goods (by this word meaning too, most probably, household goods) shall neither be carried out of the house secretly and clandestinely to coni eal them; nor shall they be hidden or concealed within the house.
    Some reliance was placed, at the trial of this cause, on the fact which appears m the report of the judge, that some small articles, which were taken by the defendant, and sold with the others under the execution, had not been specifically mentioned in the previous advertisements. As this point has not been pressed at this time, it may be unnecessary to make any observations upon it. It shall only be remarked, that if the defendant is liable for this minute slip in his official conduct, he is liable only in an action specially brought for a false return; but this is not that action: if the plaintiff recovers damages on that ground, the defendant will still be liable to a proper action by the judgment creditor; and thus he will be twice charged for one default. This would be an exception from all legal principles. The plaintiff stands in the place of the bankrupt; to him it would be a sufficient answer that he has sustained no injury, for the price of those articles had been faithfully applied to the discharge of his debts. The only damage he could pretend ' * 507 ] to have suffered, * would be by a supposed reduction of the price. But this must be merely nominal, as the sale was public, and the advertisement undoubtedly collected a great number of bidders.
    
      Livermore, in reply,
    urged upon the consideration of the Court the novelty of Lord Mansfield’s opinion, as it dropped from him in the case of Martin &/• Al. vs. Pewtress &f Al.; observing that there was nothing in the books before that period upon which to bottom the opinion, nor had it been seriously brought into question from that time; so that in fact it might be considered as an open question, now for the first time brought into solemn discussion; and he believed that a court now sitting in Westminster Hall would reverse the decision, upon the authorities and arguments which had been produced in this cause.
    The apology of his brother Dexter for this sudden opinion of a very great man, (for he thought it was no more than an apology,) was indeed very ingenious, but it was not satisfactory. Conveyance means the actual transfer, and not the writing, which merely proves it; a conveyance may be by paroi, as well as by deed. Lord Kenyon uses the expression, 11 to make a conveyance of personal chattels without deed;” and Saunders says, “ still the charter of feoffment was not a necessary part of the conveyance.”
    All the authorities cited for the defendant are cases where the supposed act of bankruptcy was by deed ; so that the present question could not arise in any of them. The opinion of Lord Mansfield seems to have been taken as law pro concesso, .without discussion or examination ; and yet it can hardly be called an opinion ; it was rather a topic introduced by his lordship in the warmth of an argument with which he was much heated. Warm, however, as he was, it was not on this point, that be made use of the expression quoted on the other side,—“ It might as well be questioned whether an estate to a man and his heirs was a fee simple or not.” It is evident that he was then speaking of the transaction generally as a fraudulent conveyance, and not of the presence or the want of a seal, for he could hardly pretend that this was so self-evident a proposition; nor was the point relied on or ever argued.
    * The necessity of a uniformity of decision has been [ * 508 ] urged upon the Court. But this Court will certainly never give an opinion contrary to their impressions of the law for the sake of uniformity. We have no knowledge that the courts in the other states will adopt the English construction. The decisions of the superior courts in England, as well as the opinions of their great and wise men sitting in judgment, will always command respect; but it will be remembered that the greatest and wisest of men are not infallible. We know that in England the courts do not conceive themselves so slavishly yoked to the opinions of the judges, or even to the decisions of their courts, but that, if the law appears to have been mistaken, they will give a different determination. But if this were not so, yet an American court or judges will never hold themselves bound by the opinions of the greatest men in a foreign country. In all questions upon the construction of statutes, where the meaning of the legislature is acknowledged to be doubtful, it is not denied that the aid of English jurists may properly be resorted to. But where the sense is plain, and the reasons obvious, as is humbly presumed to be the case on the present subject, and there is no objection to the natural construction, except what arises from opinions, and those opinions proved to be erroneous, it must be an extravagant degree of complaisance to adopt implicitly such opinions.
    On the second point made in the opening, it has been contended by the defendant’s counsel that the bankrupt must convey or conceal the goods in person; but this is much too strict a construction, and goes to defeat the provision of the statute altogether. Qui facit per alium, facit per se. As to the concealment, the common sense of the thing is the covering or masking the goods, so that the officer will be prevented from taking them. House must be understood as a generic term, including every species of building in the occupation of the bankrupt; and the goods must mean something other than household furniture, which is usually of comparatively small value, and not generally sought for by creditors.
    It is then relied on with confidence, that here is shown a good act of bankruptcy, the opinion of Lord Mansfield notwithstanding. This Court will look independently into the [ * 509 ] * grounds of that opinion, and will not be swerved from a correct and legal decision of the question even by the opinion of the whole British nation.
    As to the goods not advertised, it is so plain that an executive officer is bound to conform precisely to the directions of the law in the discharge of his official duty, and that he can in no other manner justify himself when questioned, that it is not thought necessary to urge the point.
    
      
       4 Burr. 2478.
    
    
      
      
        Lit. on Tenures, § 24. 703, 705, 706, 707, 708, 709, 710, 714, 719.
    
    
      
      
        Perkins, § 57, 92.
    
    
      
       § 116, 365.
    
    
      
       § 371, 372, 531, 532.
    
    
      
      
        Lit. § 74, 75.
    
    
      
      
        On jsss and Trusts, vol. 2, page 3 and 4.
    
    
      
       13 Vin Abr. 517.—14 Ditto, 123
    
    
      
       7 Term, R. 67.
    
    
      
       1 Esp. Rep 68
    
    
      
       3 Brown’s Ch. R. 502.
      
    
    
      
      
        Doug. 89, in notis.
    
    
      
      
        Cowper, 629.
    
    
      
       Ibid. 427
    
    
      
      
        Cowper, 117.
    
    
      
       1 W. Black, R. 660
    
    
      
       1 P. Will. 560 —1 Bos. & Pul. 369.
    
    
      
      
        Lofft's R. 114.
    
    
      
       1 Term, R. 157.
    
    
      
       Vide Cooke’s B. L. 235
    
    
      
      
        Mace vs. Cadel, Cowp. 232.—7 Term R 231.
    
    
      
       1 Ld. Raym 725.
    
    
      
       4 Burr. 2239.
    
    
      
       4 Term R. 211
    
    
      
       1 Esp R. 68.
    
    
      
      
        Bac. Abr. Title Bills of Sale.
      
    
    
      
      
        Fowler vs. Padget,7 Term R 509
    
   The cause stood continued nisi for advisement, and at the March term, 1808, in Suffolk, the opinion of the Court (except the Chief Justice, who, having been of counsel with the plaintiff, did not sit in the cause, and except, also, Thatcher, J., who did not hear the argument) was delivered as follows, by

Sewall, J.

The plaintiff, assignee ,of Edmund Bartlet, a bankupt, demands damages for certain goods alleged to have been converted by the defendant. To prove his property, he has endeavored to show that the goods in question belonged to the bankrupt at the time of the bankruptcy ; and so became, by force of the statute of the United States, and of an assignment pursuant thereto, the property of the plaintiff. The defendant sets up a title to these goods under a judgment recovered by the Newburyport Marine Insurance Company against Edmund Bartlet, rendered by the Court of Common Pleas, July term, 1802, an execution sued out thereon, and .evied by the defendant, a deputy sheriff, on the goods in question on the 21st of September, 1802; and by virtue, whereof he afterwards sold the same goods, to satisfy the said execution and judgment.

The controversy, as to the principal question in it, is to be de cided upon the inquiry, pursued at the trial, and upon the argument since upon the point of law reserved ; whether a certain transfer of the rigging of a vessel, made by the bankrupt to his father, September 17th, 1802, was an act of bankruptcy. If it was, the plaintiff’s title, as assignee, takes effect from that time, and the subsequent levy under the execution by the defendant was a conversion of the plaintiff’s goods.

The Court having agreed in their opinion upon the construction of the statute of bankruptcy, as it applies in this inquiry, I shall confine myself, in stating the decision, to the question, [ * 510 ] * whether the transfer and removal of certain goods of Edmund Bartlet, on the 17th of September, 1802, was, in the sense of the law, an act of bankruptcy; and in considering this question, it will be taken as established, that the transfer was in itself without consideration, and, as against the creditors of Edmund Bartlet, fraudulent and void.

The statute of the United States, to establish a uniform system of bankruptcy throughout the United States, provided, 11 that from, &.c., if any merchant, &c., shall, with intent unlawfully to delay or defraud his creditors, secretly convey his goods out of his house, or conceal them to prevent their being taken in execution, or make, or cause to be made," any fraudulent conveyance of his lands or chattels, &c., every such person shall be deemed and adjudged a bankrupt.”

It is contended for the plaintiff, that the act in question was an act of bankruptcy ; first, as a fraudulent conveyance of his chattels; and, secondly, as a secret removal of goods from the house, or a concealment of them, to prevent their being taken in execution.

The transfer in this case was by a bill of parcels, a writing without seal, with a receipt for the amount, and a delivery of the articles sold by this memorandum.

This conveyance was not, in the opinion of the Court, a conveyance of chattels in the technical sense, or according to the legal construction of the clause cited from the statute. Whatever may be the loose and popular sense, or possible applications, of the term conveyance, the legislature are not understood to speak in an inde terminate manner; especially if that construction would violate any general principle of jurisprudence. For, in making a statute, the legislature are understood to refer themselves to existing customs and rules, or, in other words, when using technical terms, to employ them in a precise and technical sense. The same term conveyance is used in speaking of the transfer of lands and of chattels; and different meanings must be given to the same word to apply it to the transaction in question.

In this respect the variance from the British statute operates against the construction contended for by the plaintiff. There this act of bankruptcy is described by the terms grant *or conveyance of lands or goods. And if the term con- [ * 511 ] veyance were less technical than grant, they might be applied respectively to the subjects, reddendo singula singulis. But in the statute of the United. States, the same word is made use of, to describe a transfer of both species of property. And it is well understood, that respecting lands there can be no voluntary transfer of them, but by deed; an instrument operative and effectual between the parties, independently of a consideration, or an actual delivery of the article conveyed.

The popular sense of a term, in opposition to the technical, is not to be adopted, where manifest inconveniences would be incurred. Now, if the construction was to be regulated by every possible import of the term conveyance, as applied to goods or chattels, must in the nature a transaction, to which very heavy forfeitures and important consequences are attached by the statute .

However, it is not necessary to justify the construction adopted by the Court, by any abstract reasoning. It is obvious that the legislature of th.e United States, in their statute of bankruptcies, were studious to employ the phrases of the English statutes upon the same subjects, with a view undoubtedly to the aid afforded by English decisions in their construction ; and where the same wolds are employed, without additional words to vary the construction, the legislature may be understood to have implicitly recognized the decisions which have determined their application and import. To decide the question by a reference to those authorities, removes every doubt that can arise from the popular use of a term employed by the legislature.

In the cases cited from Burrows’s Reports, and in short throughout the cases, where any occasion to notice the distinction occurs, it may be said rather to be taken as a settled maxim, in the construction of the English bankrupt laws, than to have been directly decided, that colorable sales and transfers of the notes, goods, and personal property of a bankrupt, although void as against the creditors of the bankrupt, do not amount to an act of bankruptcy, unless executed by a fraudulent deed or conveyance.

[*512] *Upon the second question respecting the concealment and removal of the goods, we can have no aid from English decisions in construing this part of the statute of the United States. This addition to the enumerated acts, which severally constitute a bankruptcy, was probably occasioned, as was observed in the argument for the defendant, by a resolution in the case of Cole vs. Davies &f Al., reported by Lord Raymond, which is, that if a trader, hearing that a writ of fieri facias was issued against him, to the intent to preserve his goods from being levied in execution, clandestinely conveys them out of his house, and conceals them privately, that does not amount to an act of bankruptcy.

The statute of the United States provides that secretly conveying his goods out of his house, or concealing them, to prevent their being taken in execution, shall be an act of bankruptcy.

In the case at bar, the rigging for a vessel built by Edmund Bartlet, and previously mortgaged by him, and which had come to the hands of his father, was sold and delivered to him, and was taken from the warehouse of the son by the father’s orders, and finally was used upon the vessel for which it had been prepared. This sale and removal was occasioned by the mutual fears of the parties that the rigging might be taken in execution, if it remained with Edmund.

At the time when this sale and removal happened, it could not have been done with the intent to defeat the execution, it not being a removal of all, or of any large proportion of his goods. And it is against this intent, that the statute may be construed to provide; or if it guards against an intent to preserve a particular species of goods, the connection of the words seems to confine the unlawful act to the removal or concealment of household goods, or goods particularly connected with a man’s station, or credit in business. But, however this may be, our opinion is, that the secrecy and concealment of goods, which constitutes an act of bankruptcy, distinct from a fraudulent conveyance of them, must be an actual, not a constructive concealment of them, by the bankrupt himself, or by his procurement, while they continue, in his intentions, his own goods.

* All these circumstances are wanting in the case at [ * 513 ] bar, in this view of it; and upon the whole our opinion is, that the transaction in question between Edmund Bartlei and his father, on the 17th of September, 1802, did not, in any respect, amount to an act of bankruptcy.

As to the question which has been made, of the validity of the sale of several articles not specified by the sheriff in his advertise ments, we are all of the opinion, that for this injury, if any has been sustained, the remedy must be by an action upon the case against the sheriff for a false return; for as the return is, it must be understood that his proceedings were in due form of law.

Costs for the defendant. 
      
      
        [Dudley vs. Sumner, 5 Mass. 472.—Ed.]
     