
    M'Menomy and Townsend, assignees of Mark and Speyer, bankrupts, against Ferrers.
    ALBANY,
    Feb. 1808.
    M & S being cbc^mstaimes^ onthe 15th April, 1800, executed a conveyance of certain lands, which, by a declaration in writing, executed by them, on the 31st May, 1800, they declared to be in trust, to pay particular creditors, in preference. On the 13th June, 1800, they drew an order on one F, their agent, directing him to pay to R, such monies as should come to his hands, from certain persons in Europe, from whom F had been authorised to receive the amount of certain policies of insurance, which order was accepted by F,,on the same day, to pay the monies as soon as they came into bis hands. On the 11th July, 1800, M & S committed an act of bankruptcy, and on the 18ih July, 1800, were duly declared bankrupts, under the law of the United States, which took effect on the 1st June, 1800. In an action brought by the assigness of M & S, against F, it was held, that the order and acceptance amounted to an assignment, and fixed the fund irrevocably, and that the order was not given in contemplation of bankruptcy, so as to make it fraudulent under the bankrupt law.
    THIS was an action of assumpsit, for money had and received to the use of the plaintiffs. Plea, non-assumpsit, The cause was tried, the 4th April, 1806, before Mr. Tus- ’ ‘ Justice Tompkins, at the circuit, in King's county. J. Mark' and J. Speyer, having been partners together, under the firm of Jacob Mark, &? Co. dissolved their copartnership, in the month of August, 1799. On the 18th July, 1800, Mark £s? Speyer were duly declared bankrupts, having, committed an act of bankruptcy on the 11th July, 1800. The plaintiffs were appointed assignees, and an assignment was made to them by the bankrupts, in September following. Previous to the bankruptcy of Mark &? Speyer, they appointed the defendant their agent, in relation to a certain claim which they had against persons in Europe, arising out of certain policies of insurance, and the defendant, as agent of Mark Speyer, subsequent to their bankruptcy, received from Europe, on account of such claim, the sum of 733 dollars. M. &'S. being indebted to one I. Roosevelt, in a sum of money, exceeding the amount in controversy in this cause, on the 13th June, 1800, drew an order on the defendant, in favour of Roosevelt, and which was, on the same day accepted by the defendant. The order was as follows :
    “ Sir—You will please to pay to James Roosevelt, or to “ his order, such monies as shall come to your hands, due “ to Jacob Mark &? Co. on account of policies of insur- “ anee, signed by the said Jacob Mark Es* Co. whereof a “ recovery shall be had on those policies; and the said “ James Roosevelt, is hereby authorised and empowered “ to give discharges for the same, and convert the amount “ to his use, for value received. New-Tork, 13th June, “ 1800.” Signed “ Jacob Mark, for Jacob Mark Es? Co. ad- “ dressed to Mr. John Ferrers." The acceptance by the defendant, was in the following words : “New-Tork, 13th “ June, 1800, Accepted, to account as above, for such “ monies as may come to my hands, in consequence of “ my agency, for Messrs. Jacob Mark Es? Co. in the cases “ above stated.” Signed “ John Ferrers''
    
    It appeared, that in the autumn of the year 1799, the affairs of M. & S. were considerably embarrassed. On the 2d December, 1799, they executed a deed to John Murray, of the city of New-Tork, for 64,000 acres of land, lying in the county of Clinton, in trust, for certain of their German creditors, and upon certain terms specified in the deed. One of the terms was, that if the said creditors did not consent to release Speyer, or give notice of their acceptance of the land, at 2 dollars per acre, by the 1st day of January, 1801, then the property was to be applied to other purposes. In the month of April, 1800, Speyer conveyed to Murray, two lots of ground in. the city of New-Tork, some canal, and other shares, in trust, for securing a debt due from Speyer, to his father; and for the same purpose he executed, on the 31st May, 1800, a bill of sale of all his furniture, to Murray, but which was afterwards returned to Speyer. On the 31st May, 1800, Mark executed a deed, or declaration of trust, to Townsend, one of the plaintiffs, and Y. Jones, jun. reciting a conveyance, then lately made, (15th April, 1800,) by Mark to Townsend and Jones, of upwards of 60,000 acres of land, besides other property, in trust, to pay all debts due by Mark &? Speyer, to the said Roosevelt, in the manner, and for the reasons, set forth in the declaration; which stated, by way of recital, that the said Roosevelt, at the request of Mark, and to befriend Mark iT Speyer, and under a full belief of their solvency, had, at sundry times, lent them large sums of money, and had indorsed their notes, to the amount of 25,000 dollars, and upwards, the payment of which loans, and an indemnity against which said engagements, they, Mark Speyer, had considered it their duty to secure to the said Roosevelt, as far as in their power, in preference to all other debts and demands against them; and that M. TS¿ had given to Townsend and Jones a judgment for 100,000 dollars, in trust, for Roosevelt, on which no execution was to be taken out against the body of Mark. The declaration further stated, that the conveyance was in trust to pay the debt to Roosevelt, before any other creditor % and that, in case the creditors of M. £s? S. would take an assignment of the property, for the payment of their debts, valuing the land at the rate therein specified, then , the trustees might assign the same, on condition that all & the demands of Roosevelt were first paid, or sufficient property retained, to be selected by them, to pay RoosevelU The declaration further stated, that if it should happen at any time, while the premises remained in trust, that a commission of bankruptcy should be sued out against Mark & Speyer, or an assignment should be made, under the insolvent act of the state of Netv-York, and it should become necessary, in the opinion of the trustees, that, then, it should be lawful for them, to vest the property in the hands of the assignees under the bankrupt paw, or the insolvent act, retaining enough, in then-opinion, to satisfy Roosevelt, to be selected by them ; the property so retained, not to be assigned, until Roosevelt was fully satisfied, or consented, or unless compelled by law, or unless counsel should advise that they might be compelled by law to assign, and not then, unless Roosevelt neglected for three days, to indemnify the trustees.
    All the land, described in the last mentioned deed, except 22.000 acres,had been mortgaged, and a considerable part sold under the mortgage. No incumbrance appeared on the 22.000 acres. Mark, on his examination before the commissioners, stated the value of the land to be from 2 to 3 dollars per acre; but'on a sale of part of them, under a decree of the court of chancery, it sold only for 77 cents per acre. Speyer, on his examination, stated, that Mark and his wife, in March, 1800, executed a mortgage for 6,000 dollars, for which sum, a judgment was also entered up to secure Murray-, for the advances which he might make to Mark Speyer, in case they should be obliged to go to prison, which they then contemplated, and to be relieved under the insolvent act of this state. It appeared further, that Ütt the time Speyer assigned his household furniture to Murray, he also assigned a bond against one Hommel.
    
    At the trial, Mark (who had obtained his certificate) testified, that he could not say what was the precise balance due to Roosevelt, but he believed it to be upwards of 20,000 dollars, and that he had agreed to pay Speyer 10,000 dollars for his interest in the partnership, at the time of its dissolution, and to take the whole benefit and burthen upon himself;' that the order given to Roosevelt, on the defendant, was not given in contemplation of bankruptcy, and that he had no expectation of becoming a bankrupt, a fortnight before the commission issued.
    
      Samuel Jones, jun. who was sworn as a witness, on the trial, testified, that the above-mentioned deed to Murray, was executed, as he understood, in compliance with the engagements of Mark if Speyer, to give the creditors named therein, or the majority of them, land, as security for their debts; that most of the creditors had made loans to Mark if Speyer, on the credit of the lands specified in the deed, or other lands of Mark if Speyer, under certain agreements between them; that Roosevelt applied to the witness, to endeavour to obtain security from Mark if Speyer, for whom the witness was counsel, some time before the execution of the deed above-mentioned, to him and Townsend: the witness could not state with certainty how long before, but thought it as early as March, when he spoke to Mark if Speyer on the subject; that Roosevelt alleged, as the ground of this application, that he had been promised security at the time he lent his indorsements, and vriiich Mark admitted; that Roosevelt was pressing for security, which Mark declined, saying it was unnecessary, and that he did not wish to incumber his lands, nor to put it ip the power of Roosevelt to sacrifice them by forced sales - but was finally prevailed upon, though with some diEculty, to execute the deed above-mentioned, on condition that Townsend and the witness should be the trustees ; that Roosevelt still complained that the security was not such as had been promised to him, and that he ought to have further security. The witness further stated, that he was acquainted with the affairs of Mark if Speyer, and did not believe, that they could get on, and such had been his conviction for a long time; he had thought that they must either become bankrupts, or seek, relief under the insolvent act, but he did not know what course of conduct they meant to pursue; that Mark appeared to think that he should be able ultimately' to pay his debts, and seemed at first, very sanguine in that opinion, and persevered in the belief, until very shortly before Mark if Speyer became bankrupts. The witness believed, though he did not certainly know, that Mark if Speyer had discontinued their regular course of business, from the time of the dissolution of their copartnership. That the deed and judgment, given as security to Roosevelt, on the 15th April, 1800, and the declaration above-mentioned, were all intended as one transaction, and were so agreed on, and directed to be made out by the parties, previous to the execution of the first deed, which did not express the trust, and that the delay in executing the declaration of trust, was owing to accident or a pressure of business, and not to any design.
    The judge charged the jury, that actual insolvency, or •a state of things which would induce a belief in others of the insolvency of a debtor, or a belief or expectation by a creditor of such insolvency, or contemplation of bankruptcy by his debtor, and of the intent of the creditor to acquire a preference by the security he obtains, did not furnish the criterion by which the present suit was to be determined ; but the question for the jury to determine, was, whether the debtor, at the time he gave the order in question, contemplated bankruptcy, and intended to prefer a particular creditor ? If so, the transaction would be void, as against the spirit of the bankrupt law ; but, that if the debtor was coerced into the measure, by an apprehension of an arrest, on refusal, or could not avoid giving the security, or, if it was done in performance of an agreement made when no preference was contemplated, then, in either of those cases, the creditor was entitled to his security, though the debtor contemplated bankruptcy. when the security was given. He, however, informed the jury, that, in his opinion, if they believed Mark contemplated bankruptcy, at the time the order was given, there was not evidence in the cause to induce a belief that the order was obtained by threats of legal coercion, or in performance of any antecedent agreement; and that the order was valid, notwithstanding the intervening act of bankruptcy, if Mark did not contemplate bankruptcy when he gave it.
    The jury found a verdict for the defendant.
    A motion was made to set aside the verdict, and for a new trial, for the misdirection of the judge, and because the verdict was against evidence.
    Pendleton, for the plaintiff.
    1. The order created no specific lien on the fund. Its terms show it to be revocable. The defendant was a mere commercial agent, acting for his principal, and his agency was of a revocable nature. The order was liable to a contingency, and the agent had no authority to pay, until the money came into his hands. Such an authority would be at an end, by the intervening bankruptcy of the agent, or of the makers of the order, or by the death of the parties. An act of bankruptcy is a revocation of all authorities given by the bankrupt; and the 13th section of the bankrupt law of the United States, declares the same principle. As the money, therefore, came into the hands of the defendant, after the bankruptcy of Mark & Speyer, he must be considered as receiving it to the use of their assignees. If after making this order, Mark & Speyer had made a regular assignment to a third person in Europe, of this fund, would not such an assignment have been valid ? A fortiori must an assignment under the bankrupt law prevail. No doubt, that if an order be drawn on the person holding the fund, it will attach and be a lien; such are the cases of Peyton v. Hallett,
      
       and Tates v. Groves, which will, probably, be cited on the other side. In the present case, the order is not on the person holding the fund, billón an agent, directing him to pay, when he should receive the money.
    
      It has been held that, if a person indorses a note to another, which is sent by post, and the next day, before the indorsee receives the note, he becomes a bankrupt, the indorsement is void. Again, no notice of the order was given to the debtors, or persons holding the fund in Europe. Might not Mark & Speyer have received the money themselves, without being liable to an action by Roosevelt f If so, their assignees may receive it.
    2. The order was intended as a voluntary preference to a particular creditor, and in contemplation of bankruptcy, and was, therefore, fraudulent. There appears to have been no pressure, or legal diligence used against Mark & Speyer, by Roosevelt. An indefinite promise of security could not be enforced, and created no legal obligation. If made in contemplation of bankruptcy, such promise would be void. Indeed, the facts in the case most irresistibly lead to the conclusion, that Mark Speyer contemplated a bankruptcy, and that they were determined to give a preference to Roosevelt. The original deed of the 15th April, 1800, contained no declaration of trust, and must, therefore, be considered as in trust for the grantor, and void as against creditors. The subsequent declaration of trust of the 31st May, will not so attach on the original deed, as to make it valid, as one bona fde conveyance. But the deed of declaration itself, expressly states the inability of Mark £s? Speyer to pay their debts, and contains provisions in favour of a particular creditor, in case of bankruptcy. Is it possible, then, to believe, that they did not contemplate bankruptcy when they made that conveyance ? The subsequent explanations by Mark, cannot destroy the strong internal evidence, arising from the written documents. Though the deed of the 31st May, 1800, was not of itself an act of bankruptcy, since the law of the United States did not take effect until the 1st June; yet the act had been passed, and the deed was made with a view to defeat the operation of it, and must, therefore, be considered as made in frandem legis, and void. This conveyance comprised all the property of Mark Speyer, except what had been given as security to particular creditors. A deed in trust to pay all creditors, except one, is void ; but here was a deed in trust to pay one creditor, in exclusion of all the rest.
    
      P. W. Radcliff and Benson, contra.
    1. This order was not a mere authority to receive money, but a transfer of so much of the fund. The cases of Row v. Dawson, and Teates v. Groves
      
      , are strong cases to show, that such an order amounts to an assignment. No particular form of words was necessary; as soon as the order was accepted, the property was fixed. But this point has been expressly decided, in an analogous case, that of Peyton v. Hallett,
      
       in this court. The order could no more be revoked after it was delivered, than the assignor of a bond could revoke his assignment. If the persons in Europe who had the fund, should have paid it, before notice of the order, they could not, it is true, be again called upon for the money. But whether such notice was, in fact, given or not, will not vary the question before the court. Mark Sí? Speyer transferred their right, and Roosevelt took upon himself the risk of notice. Again, after the order was shown to the defendant, he must be considered as the agent or trustee of Roosevelt, in relation to the money, and as no longer the agent of Mark or Speyer, or their assignees.
    
      2. To make void an assignment or delivery of property by a debtor, it must be shown to have been done in contemplation of a certain and impending bankruptcy, not from the vague apprehension of a possible future bankruptcy. A conveyance by a trader of part of his property, carries with it no evidence of fraud. and if complete, before the act of bankruptcy, it will be valid, unless there be positive evidence of fraud.ff To the general rules on this subject, there are several exceptions : As if the conveyance or delivery be made to relieve the party from legal process, or from the bare threat or even groundless apprehension of it, the conveyance is valid. And it is not even necessary, that a man should be actually arrested. It is enough, if the creditor comes with a pressing demand on the feelings and conscience of the debtor, and urges him for security. So if payment be made, or an act be done, in pursuance of a prior agreement, or in the ordinary course of business, it will be valid. In the case of Smith v. Payne,
      
       Lord Kenyon recognized all these exceptions, and under the circumstances of the case, which were not very dissimilar to the present, and because, the bankrupt himself had sworn to the honesty of the transaction, and that he did not meditate a bankruptcy, at the time, he refused to set aside the verdict. In the present case, there was a prior engagement to give Roosevelt security ; and Mark has sworn expressly, that it was not done in contemplation of bankruptcy. Roosevelt was certainly a very meritorious creditor, and had peculiar claims on Mark Ei? Speyer, for security j and, as was observed by the Master of the Rolls, in the case of Small v. Dudley,
      
       there may be cases so circumstanced, that a trader honestly may, nay, ought to to give a preference.
    There is nothing in the deed and declaration of trust, if attentively examined, that indicates fraud, unless the giving a preference to Roosevelt be a fraud. The provision, in case of bankruptcy, was solely for the purpose of giving the- trustees a direction, in relation to the execution of their trust, in case such an event should happen. It was the contemplation of a possible bankruptcy. But in answer to these allegations of fraud, in relation to the bankrupt law, it is sufficient to say, that all the transactions complained of, were prior to the existence of that law; for though the act of the United States, on this subject, passed the 4th April, it was to have no operation until the 1st June, 1800. It maybe said, then, to have had no legal existence or power, until the 1st June, so that no fraud in relation to it, could arise from acts done prior to that time. Again, there has been a verdict in this cause for the defendant, in the common pleas; and after the removal of the cause here, there has been another verdict in his favour, and whether fraud or not, being a question of fact, it is unprecedented to grant a new trial after a second verdict.
    
      Pendleton objected, that ho notice could be taken of what passed in the mayor’s court, in relation to this cause ; and Radcliff offered an affidavit of the facts, as he had stated them.
    
      
      
        Smith v. Goddard, 3 Bros. & Pull. 465.
    
    
      
      
        Laws of the U. S. v. 5. p. 55.
    
    
      
      
         Hovil v. Brewing, 1 East, 154.
      
    
    
      
       1 Caines, 363.
    
    
      
       1 Ves. Jun. 280.
    
    
      
      
        Alderson v. Temple, 4 Burr. 2235. Harman v. Fisher, Cowp. 117.
    
    
      
       1 Johnson, 374. 3 Wilson, 47.
    
    
      
      
        Gayner's case, 1 Burr. 477. Cook's B. L. 3d ed. 108.
    
    
      
       1 Vezey, 381.
    
    
      
      
        Vesey, jun. 280.
    
    
      
      
         1 Caines, 363, Livingston, J. 379.
    
    
      
      
         Cullen, 44.50.
    
    
      
      
        Alderson v. Temple, 4 Burr. 2239. Thompson v. Freeman, 1 Term, 155.
    
    
      
       Ex parte Scudamore, 3 Vesey, jun. 85. Cullen’s B. L. 280, 281.
    
    
      
      
        Harman v. Fisher, Coup. 125.
    
    
      
       6 Term, 153.
      
    
    
      
      
         2 P. Wms. 429.
    
   Spencer, J.

The judges of this court must know, and will take notice of what passes on trials before them; but we have no such knowledge in relation to trials before inferior courts, and to bring the facts before this court, by affidavit, is unprecedented.

Kent, Ch. J.

We may, perhaps, take notice of the fact, in the exercise of our discretion, as to granting a new trial.

Thompson, J.

Though it is unusual to receive affidavits in such a case, yet I see no objection to taking notice of the fact suggested, when we come to exercise our discretion as to the propriety of granting a new trial.

T. A. Emmet, in reply. 1. The rule laid down by Chief Justice Lewis, in the case of Peyton v. Hallett, seems to me to be the correct one; that the lien is confined to the case of an order on the person holding the fund, and has never been extended so far as to vest an interest in one man, in a fund which may, or may not, come into the hands of another. The acceptance of the order in the present case is conditional; that is, "if I receive the money, and receive it as the agent of Mark & Speyer, I will pay it to you.” No doubt, if the money had come into the hands of the defendant, prior to the bankruptcy of Mark £s? Speyer, they would have been bound by their order to pay it to Roosevelt; but here the fund might have been attached in Europe, or Mark Speyer might have displaced the defendant as their agent, before the money was paid to him.

2. It does not appear, from the case, that Roosevelt knew of the order or the acceptance. It appears, then, to be a transaction incomplete, or an arrangement made with a view to prefer Roosevelt. The law on this subject.is well summed up by Wood, arguendo, in the case of Rust v. Cooper. “ Though in general, a trader, before an a.ct of bankruptcy committed, has. such a, property in, and power over, his effects, as to do acts which, by consequence, may give one creditor a preference to another ; yet, if he is insolvent, or has an act of bankruptcy in contemplation, he can do no act out of the usual course of trade, in favour of a particular creditor.” The length of time intervening makes no difference, if a bankruptcy is contemplated. In the case of The Assignees of Cummings v, Jackson, the court considered the stopping payment and insolvency, as controuling circumstances, to show a meditated bankruptcy. It is not pretended, that here was any fraud, in a moral sense, but a legal, or constructive fraud. What circumstances amount to a fraud is a question of law. There are strong and sufficient circumstances in the present case, to justify the court in making the inference of fraud. The acknowledged insolvency of the debtors, the preference of a particular creditor, and the transaction being out of the ordinary course of business, with the very suspicious character of the conveyance to Townsend id. Jones, most conclusively show that species of fraud, which .must render this act of Aiark is Speyer void, and that the plaintiffs are, therefore, entitled to the money in the hands of the defendant.

Van Ness, J, delivered the opinion of the court. A new trial is moved for in this cause ;

1st. Because, the order drawn by Mark, in behalf of himself and partner, upon the defendant, was contingent and revocable, and that it was, in fact, revoked by the intervening bankruptcy of the drawers :

2d.- Because the order was given in contemplation of bankruptcy, and for the purpose of giving Roosevelt an undue preference, and so a fraud upon the bankrupt law.

I consider the first question as settled by the decision of this court, in the case of Peyton v. Hallet. The order, in that case, was drawn upon an agent, not in possession of the fund out of which it was to be satisfied ; and the objection arising from that circumstance, was much relied upon, and seems to have been well considered. The court held, that the order and acceptance fixed the fund irrevocably, and amounted to an equitable assignment of it. The effect Peyton's bankruptcy might have had on the order, was also noticed, and the court supposed that White (the witness) would not have been deprived, thereby, of his lien. Indeed, upon no other principle, could White have been considered as an incompetent witness. This decision is not only well founded in principle, but is supported by authority. (Powel v. Gordon, 2 Esp. Rep. 735. Green v. Scott, 1 Ves. jun. 282. Row v. Dawson, 1 Vez. 331.) I am satisfied that there is no ground for the distinction that was attempted to be shown between this case, and those which have been mentioned. It was strongly urged, on the argument, that, in the case of Green v. Scott, and Row v. Dawson,.the funds were actually in the hands of the drawees. This is not so. In the last of these cases, the very terms of the order will show, that part of the bond was not in hand. Nothing, even at law, vests in the assignee of a bankrupt, but such real and personal estate, of which the bankrupt had the equitable, as well as legal interest. (Willes' Rep. 402.) In the case of Carpenter and others v. Mainell, (3 Bos. & Pull. 40.) it was held, that where a bankrupt, before his bankruptcy, had indorsed a note, payable out of a contingent and.specified fund, although the indorsement had no legal effect, yet it passed the beneficial interest, and the bankrupt became a mere trustee for the indorsee, and that the trust did not pass to his assignees, under the assignment.

The moment the money, in this case, came into the hands of the defendant, he became bound to pay it over to Roosevelt. Certainly, Mark & Speyer could not reclaim it; and unless the order was fraudulent, their assignees succeeded to no greater or better rights. This appears to me to be a case, that must frequently have occurred in tjje course 0f commercial transactions, and great and extensive mischief and inconvenience would result from the doctrine, contended for by the counsel for the plaintiffs, if it should have been found necessary to accede to it.

The remaining question, if the bankrupt system was still in operation, might present some difficulty. The bankrupt law was passed on the 4th April, 1800; but ivas not to take effect, until the 1st of June,, 1800. Mark Speyer were declared bankrupts, on the ,18th of July, upon an act of bankruptcy committed on the 11th of July, in the same year. The deed to Jones y Tnuns end, is dated the 15 th of April, and the declaration of trust, the 31st of May, 1800, both anterior to the period when the bankrupt law went into operation. The order on the defendant, is dated the 13th of June, nearly a month before the act of bankruptcy was committed.

It is not contended, that the conveyances, and other dispositions, which Mark y Speyer made of their property, prior to the 1st of June, of themselves, amounted to an act of bankruptcy. The bankrupt law never attached upon them, unless by construction, until after they were completed. But it is said they were fraudulent, because designed to defeat or evade the operation of an act which they knew would, in a short period, put it out of their power to give a preference to favoured, or, what they conceived to be, meritorious creditors. Before the bankrupt law, debtors had a right to give a preference to bona jide creditors. There is nothing in our insolvent laws to prohibit it; and the bankrupt law left this right until the 1st of June, 1800, unimpaired. In England, before the passing of the bankrupt laws, debtors had the same right; whenever, therefore, we find it said in the books, that an attempt to give a preference to a particular creditor, on the eve of bankruptcy, is fraudulent, it is to bé understood, that such attempt is fraudulent, as against the spirit of the bankrupt laws only. If the deeds to Murray, and to Jones &? Townsend, were executed by Mark & -Speyer, with a view of giving a preference to certain of their bona jide creditors, and of this I think there is no doubt, that was permitted by the law of this state, and until the 1st June, was not prohibited by the act of congress, and, therefore, they were not fraudulent. The order in question, however, was given after the 1st June, and when, it is insisted, a bankruptcy must have been contemplated.

It is difficult to reconcile the fact of the bankrupts’ having pledged all their property for the payment of their debts, with a belief, that at the time this order was given, a bankruptcy was not contemplated. Their situation appears to me to have been hopeless, and the whole course of their conduct, for many months before the date of the order, looks as if they were meditating on the best means to procure a discharge from their creditors, by surrendering to them all their property. Still, however, there is the positive testimony of Mark, who was a competent witness, and whom the jury must have believed, that the order was not given in contemplation of bankruptcy, and. that he had no expectation of becoming a bankrupt, a fortnight before the commission issued. Y. Jones's testimony .strongly supports that of Mai'k. He says, that Mark appeared to think he should be able, ultimately, to pay his debts; and that he persevered in that belief, until very shortly before he became a bankrupt. I think it probable, that Mark was sincere in the belief. The property of the bankrupts consisted, chiefly, of very large tracts of new lands, the value of which they did not understand, and greatly overrated j and this is not the first time that this species of property has proved a most deceptive and precarious source of relief against the pressing calls of numerous and importunate creditors. Upon the whole, ¿he question, whether a bankruptcy was contemplated, or not, when the order was given, has been twice fairly submitted to a jury, who have found for the defendant; an<j taking into consideration, that the bankrupt law is repealed, and that it probably never will be re-enacted, becauge no attempt has hitherto been made for that purpose, and that the sum in controversy would afford, as it were, but a nominal dividend among the creditors, we are against the interfering with the verdict ; and, consequently, the motion for a new trial must be denied.

Rule refused. 
      
      
        1 Caines, 380
     
      
      
        Cowper, 630.
     
      
       1 Johnson, 370.
     
      
       1 Burrow, 396.
     
      
       1 Caines, 363.
     